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FREE CULTURE
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ALSO BY LAWRENCE LESSIG
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The Future of Ideas: The Fate of the Commons
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in a Connected World
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Code: And Other Laws of Cyberspace
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THE PENGUIN PRESS
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NEW YORK
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2004
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FREE CULTURE
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HOW BIG MEDIA USES TECHNOLOGY AND THE
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HOW BIG MEDIA USES TECHNOLOGY AND
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LAW TO LOCK DOWN CULTURE AND CONTROL
THE LAW TO LOCK DOWN CULTURE
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CREATIVITY
AND CONTROL CREATIVITY
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LAWRENCE LESSIG
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❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚
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THE P ENGUIN PRESS
a member of
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Penguin Group (USA) Inc.
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375 Hudson Street
New York, New York 10014
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Copyright © Lawrence Lessig, 2004
All rights reserved
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Excerpt from an editorial titled “The Coming of Copyright Perpetuity,”
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The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co.
Reprinted with permission.
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Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
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All rights reserved. Reprinted with permission.
Diagram on page 164 courtesy of the ofﬁce of FCC Commissioner, Michael J. Copps.
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Library of Congress Cataloging-in-Publication Data
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Lessig, Lawrence.
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Free culture : how big media uses technology and the law to lock down
culture and control creativity / Lawrence Lessig.
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p. cm.
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Includes index.
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ISBN 1-59420-006-8 (hardcover)
1. Intellectual property—United States. 2. Mass media—United States.
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3. Technological innovations—United States. 4. Art—United States. I. Title.
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KF2979.L47 2004
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343.7309'9—dc22
2003063276
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This book is printed on acid-free paper.
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Printed in the United States of America
1 3 5 7 9 10 8 6 4 2
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Designed by Marysarah Quinn
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Without limiting the rights under copyright reserved above, no part of this publication may
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be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or
by any means (electronic, mechanical, photocopying, recording or otherwise), without the
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prior written permission of both the copyright owner and the above publisher of this book.
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The scanning, uploading, and distribution of this book via the Internet or via any other
means without the permission of the publisher is illegal and punishable by law. Please pur-
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chase only authorized electronic editions and do not participate in or encourage electronic
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piracy of copyrighted materials. Your support of the author’s rights is appreciated.
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To Eric Eldred—whose work ﬁrst drew me
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to this cause, and for whom
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it continues still.
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CONTENTS
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PREFACE
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INTRODUCTION
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“PIRACY”
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CHAPTER ONE: Creators
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CHAPTER TWO: “Mere Copyists”
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CHAPTER THREE: Catalogs
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CHAPTER FOUR: “Pirates”
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Film
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Recorded Music
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Radio
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Cable TV
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CHAPTER FIVE: “Piracy”
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Piracy I
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Piracy II
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“PROPERTY”
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CHAPTER SIX: Founders
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CHAPTER SEVEN: Recorders
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CHAPTER EIGHT: Transformers
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CHAPTER NINE: Collectors
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CHAPTER TEN: “Property”
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Why Hollywood Is Right
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Beginnings
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Law: Duration
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Law: Scope
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Law and Architecture: Reach
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Architecture and Law: Force
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Market: Concentration
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Together
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PUZZLES
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CHAPTER ELEVEN: Chimera
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CHAPTER TWELVE: Harms
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Constraining Creators
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Constraining Innovators
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Corrupting Citizens
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BALANCES
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CHAPTER THIRTEEN: Eldred
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CHAPTER FOURTEEN: Eldred II
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CONCLUSION
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AFTERWORD
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Us, Now
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Rebuilding Freedoms Previously Presumed:
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Examples
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Rebuilding Free Culture: One Idea
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Them, Soon
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1. More Formalities
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Registration and Renewal
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Marking
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2. Shorter Terms
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3. Free Use Vs. Fair Use
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4. Liberate the Music—Again
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5. Fire Lots of Lawyers 304
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NOTES
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ACKNOWLEDGMENTS
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INDEX
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PREFACE
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At the end of his review of my ﬁrst book, Code: And Other Laws of
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Cyberspace, David Pogue, a brilliant writer and author of countless
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technical and computer-related texts, wrote this:
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Unlike actual law, Internet software has no capacity to punish. It
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doesn’t affect people who aren’t online (and only a tiny minority
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of the world population is). And if you don’t like the Internet’s
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system, you can always ﬂip off the modem.1
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Pogue was skeptical of the core argument of the book—that soft-
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ware, or “code,” functioned as a kind of law—and his review suggested
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the happy thought that if life in cyberspace got bad, we could always
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“drizzle, drazzle, druzzle, drome”-like simply ﬂip a switch and be back
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home. Turn off the modem, unplug the computer, and any troubles
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that exist in that space wouldn’t “affect” us anymore.
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Pogue might have been right in 1999—I’m skeptical, but maybe.
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But even if he was right then, the point is not right now: Free Culture
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is about the troubles the Internet causes even after the modem is turned
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off. It is an argument about how the battles that now rage regarding life
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on-line have fundamentally affected “people who aren’t online.” There
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is no switch that will insulate us from the Internet’s effect.
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But unlike Code, the argument here is not much about the Internet
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itself. It is instead about the consequence of the Internet to a part of
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our tradition that is much more fundamental, and, as hard as this is for
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a geek-wanna-be to admit, much more important.
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That tradition is the way our culture gets made. As I explain in the
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pages that follow, we come from a tradition of “free culture”—not
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“free” as in “free beer” (to borrow a phrase from the founder of the free-
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software movement2), but “free” as in “free speech,” “free markets,” “free
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trade,” “free enterprise,” “free will,” and “free elections.” A free culture
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supports and protects creators and innovators. It does this directly by
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granting intellectual property rights. But it does so indirectly by limit-
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ing the reach of those rights, to guarantee that follow-on creators and
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innovators remain as free as possible from the control of the past. A free
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culture is not a culture without property, just as a free market is not a
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market in which everything is free. The opposite of a free culture is a
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“permission culture”—a culture in which creators get to create only
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with the permission of the powerful, or of creators from the past.
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If we understood this change, I believe we would resist it. Not “we”
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on the Left or “you” on the Right, but we who have no stake in the
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particular industries of culture that deﬁned the twentieth century.
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Whether you are on the Left or the Right, if you are in this sense dis-
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interested, then the story I tell here will trouble you. For the changes I
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describe affect values that both sides of our political culture deem fun-
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damental.
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We saw a glimpse of this bipartisan outrage in the early summer of
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2003. As the FCC considered changes in media ownership rules that
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would relax limits on media concentration, an extraordinary coalition
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generated more than 700,000 letters to the FCC opposing the change.
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As William Saﬁre described marching “uncomfortably alongside
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CodePink Women for Peace and the National Riﬂe Association, be-
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tween liberal Olympia Snowe and conservative Ted Stevens,” he for-
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mulated perhaps most simply just what was at stake: the concentration
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of power. And as he asked,
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Does that sound unconservative? Not to me. The concentration
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of power—political, corporate, media, cultural—should be anath-
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ema to conservatives. The diffusion of power through local con-
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trol, thereby encouraging individual participation, is the essence
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of federalism and the greatest expression of democracy.3
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This idea is an element of the argument of Free Culture, though my
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focus is not just on the concentration of power produced by concentra-
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tions in ownership, but more importantly, if because less visibly, on the
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concentration of power produced by a radical change in the effective
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scope of the law. The law is changing; that change is altering the way our
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culture gets made; that change should worry you—whether or not you
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care about the Internet, and whether you’re on Saﬁre’s left or on his right.
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The inspiration for the title and for much of the argument of
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this book comes from the work of Richard Stallman and the Free Soft-
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ware Foundation. Indeed, as I reread Stallman’s own work, especially
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the essays in Free Software, Free Society, I realize that all of the theoret-
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ical insights I develop here are insights Stallman described decades
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ago. One could thus well argue that this work is “merely” derivative.
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I accept that criticism, if indeed it is a criticism. The work of a
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lawyer is always derivative, and I mean to do nothing more in this book
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than to remind a culture about a tradition that has always been its own.
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Like Stallman, I defend that tradition on the basis of values. Like
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Stallman, I believe those are the values of freedom. And like Stallman,
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I believe those are values of our past that will need to be defended in
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our future. A free culture has been our past, but it will only be our fu-
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ture if we change the path we are on right now.
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Like Stallman’s arguments for free software, an argument for free
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culture stumbles on a confusion that is hard to avoid, and even harder
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to understand. A free culture is not a culture without property; it is not
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a culture in which artists don’t get paid. A culture without property, or
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in which creators can’t get paid, is anarchy, not freedom. Anarchy is not
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what I advance here.
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Instead, the free culture that I defend in this book is a balance be-
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tween anarchy and control. A free culture, like a free market, is ﬁlled
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with property. It is ﬁlled with rules of property and contract that get
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enforced by the state. But just as a free market is perverted if its prop-
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erty becomes feudal, so too can a free culture be queered by extremism
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in the property rights that deﬁne it. That is what I fear about our cul-
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ture today. It is against that extremism that this book is written.
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INTRODUCTION
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On December 17, 1903, on a windy North Carolina beach for just
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shy of one hundred seconds, the Wright brothers demonstrated that a
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heavier-than-air, self-propelled vehicle could ﬂy. The moment was elec-
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tric and its importance widely understood. Almost immediately, there
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was an explosion of interest in this newfound technology of manned
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ﬂight, and a gaggle of innovators began to build upon it.
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At the time the Wright brothers invented the airplane, American
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law held that a property owner presumptively owned not just the sur-
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face of his land, but all the land below, down to the center of the earth,
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and all the space above, to “an indeﬁnite extent, upwards.”1 For many
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years, scholars had puzzled about how best to interpret the idea that
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rights in land ran to the heavens. Did that mean that you owned the
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stars? Could you prosecute geese for their willful and regular trespass?
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Then came airplanes, and for the ﬁrst time, this principle of Amer-
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ican law—deep within the foundations of our tradition, and acknowl-
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edged by the most important legal thinkers of our past—mattered. If
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my land reaches to the heavens, what happens when United ﬂies over
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my ﬁeld? Do I have the right to banish it from my property? Am I al-
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lowed to enter into an exclusive license with Delta Airlines? Could we
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set up an auction to decide how much these rights are worth?
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In 1945, these questions became a federal case. When North Car-
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olina farmers Thomas Lee and Tinie Causby started losing chickens
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because of low-ﬂying military aircraft (the terriﬁed chickens appar-
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ently ﬂew into the barn walls and died), the Causbys ﬁled a lawsuit say-
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ing that the government was trespassing on their land. The airplanes,
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of course, never touched the surface of the Causbys’ land. But if, as
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Blackstone, Kent, and Coke had said, their land reached to “an indeﬁ-
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nite extent, upwards,” then the government was trespassing on their
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property, and the Causbys wanted it to stop.
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The Supreme Court agreed to hear the Causbys’ case. Congress had
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declared the airways public, but if one’s property really extended to the
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heavens, then Congress’s declaration could well have been an unconsti-
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tutional “taking” of property without compensation. The Court ac-
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knowledged that “it is ancient doctrine that common law ownership of
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the land extended to the periphery of the universe.” But Justice Douglas
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had no patience for ancient doctrine. In a single paragraph, hundreds of
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years of property law were erased. As he wrote for the Court,
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[The] doctrine has no place in the modern world. The air is a
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public highway, as Congress has declared. Were that not true,
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every transcontinental ﬂight would subject the operator to count-
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less trespass suits. Common sense revolts at the idea. To recognize
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such private claims to the airspace would clog these highways, se-
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riously interfere with their control and development in the public
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interest, and transfer into private ownership that to which only
28
the public has a just claim.2
29
30
“Common sense revolts at the idea.”
31
This is how the law usually works. Not often this abruptly or impa-
32S
tiently, but eventually, this is how it works. It was Douglas’s style not to
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dither. Other justices would have blathered on for pages to reach the
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conclusion that Douglas holds in a single line: “Common sense revolts
1
at the idea.” But whether it takes pages or a few words, it is the special
2
genius of a common law system, as ours is, that the law adjusts to the
3
technologies of the time. And as it adjusts, it changes. Ideas that were
4
as solid as rock in one age crumble in another.
5
Or at least, this is how things happen when there’s no one powerful
6
on the other side of the change. The Causbys were just farmers. And
7
though there were no doubt many like them who were upset by the
8
growing trafﬁc in the air (though one hopes not many chickens ﬂew
9
themselves into walls), the Causbys of the world would ﬁnd it very
10
hard to unite and stop the idea, and the technology, that the Wright
11
brothers had birthed. The Wright brothers spat airplanes into the
12
technological meme pool; the idea then spread like a virus in a chicken
13
coop; farmers like the Causbys found themselves surrounded by “what
14
seemed reasonable” given the technology that the Wrights had pro-
15
duced. They could stand on their farms, dead chickens in hand, and
16
shake their ﬁsts at these newfangled technologies all they wanted.
17
They could call their representatives or even ﬁle a lawsuit. But in the
18
end, the force of what seems “obvious” to everyone else—the power of
19
“common sense”—would prevail. Their “private interest” would not be
20
allowed to defeat an obvious public gain.
21
22
23
Edwin Howard Armstrong is one of America’s forgotten inventor
24
geniuses. He came to the great American inventor scene just after the
25
titans Thomas Edison and Alexander Graham Bell. But his work in
26
the area of radio technology was perhaps the most important of any
27
single inventor in the ﬁrst ﬁfty years of radio. He was better educated
28
than Michael Faraday, who as a bookbinder’s apprentice had discov-
29
ered electric induction in 1831. But he had the same intuition about
30
how the world of radio worked, and on at least three occasions, Arm-
31
strong invented profoundly important technologies that advanced our
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On the day after Christmas, 1933, four patents were issued to Arm-
2
strong for his most signiﬁcant invention—FM radio. Until then, con-
3
sumer radio had been amplitude-modulated (AM) radio. The theorists
4
of the day had said that frequency-modulated (FM) radio could never
5
work. They were right about FM radio in a narrow band of spectrum.
6
But Armstrong discovered that frequency-modulated radio in a wide
7
band of spectrum would deliver an astonishing ﬁdelity of sound, with
8
much less transmitter power and static.
9
On November 5, 1935, he demonstrated the technology at a meet-
10
ing of the Institute of Radio Engineers at the Empire State Building in
11
New York City. He tuned his radio dial across a range of AM stations,
12
until the radio locked on a broadcast that he had arranged from seven-
13
teen miles away. The radio fell totally silent, as if dead, and then with a
14
clarity no one else in that room had ever heard from an electrical de-
15
vice, it produced the sound of an announcer’s voice: “This is amateur
16
station W2AG at Yonkers, New York, operating on frequency modu-
17
lation at two and a half meters.”
18
The audience was hearing something no one had thought possible:
19
20
A glass of water was poured before the microphone in Yonkers; it
21
sounded like a glass of water being poured. . . . A paper was
22
crumpled and torn; it sounded like paper and not like a crackling
23
forest ﬁre. . . . Sousa marches were played from records and a pi-
24
ano solo and guitar number were performed. . . . The music was
25
projected with a live-ness rarely if ever heard before from a radio
26
“music box.”3
27
28
As our own common sense tells us, Armstrong had discovered a
29
vastly superior radio technology. But at the time of his invention, Arm-
30
strong was working for RCA. RCA was the dominant player in the
31
then dominant AM radio market. By 1935, there were a thousand radio
32S
stations across the United States, but the stations in large cities were all
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owned by a handful of networks.
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RCA’s president, David Sarnoff, a friend of Armstrong’s, was eager
1
that Armstrong discover a way to remove static from AM radio. So
2
Sarnoff was quite excited when Armstrong told him he had a device
3
that removed static from “radio.” But when Armstrong demonstrated
4
his invention, Sarnoff was not pleased.
5
6
I thought Armstrong would invent some kind of a ﬁlter to remove
7
static from our AM radio. I didn’t think he’d start a revolution—
8
start up a whole damn new industry to compete with RCA.4
9
10
Armstrong’s invention threatened RCA’s AM empire, so the com-
11
pany launched a campaign to smother FM radio. While FM may have
12
been a superior technology, Sarnoff was a superior tactician. As one au-
13
thor described,
14
15
The forces for FM, largely engineering, could not overcome the
16
weight of strategy devised by the sales, patent, and legal ofﬁces
17
to subdue this threat to corporate position. For FM, if allowed to
18
develop unrestrained, posed . . . a complete reordering of radio
19
power . . . and the eventual overthrow of the carefully restricted
20
AM system on which RCA had grown to power.5
21
22
RCA at ﬁrst kept the technology in house, insisting that further
23
tests were needed. When, after two years of testing, Armstrong grew
24
impatient, RCA began to use its power with the government to stall
25
FM radio’s deployment generally. In 1936, RCA hired the former head
26
of the FCC and assigned him the task of assuring that the FCC assign
27
spectrum in a way that would castrate FM—principally by moving FM
28
radio to a different band of spectrum. At ﬁrst, these efforts failed. But
29
when Armstrong and the nation were distracted by World War II,
30
RCA’s work began to be more successful. Soon after the war ended, the
31
FCC announced a set of policies that would have one clear effect: FM
S32
radio would be crippled. As Lawrence Lessing described it,
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1
The series of body blows that FM radio received right after the
2
war, in a series of rulings manipulated through the FCC by the
3
big radio interests, were almost incredible in their force and devi-
4
ousness.6
5
6
To make room in the spectrum for RCA’s latest gamble, television,
7
FM radio users were to be moved to a totally new spectrum band. The
8
power of FM radio stations was also cut, meaning FM could no longer
9
be used to beam programs from one part of the country to another.
10
(This change was strongly supported by AT&T, because the loss of
11
FM relaying stations would mean radio stations would have to buy
12
wired links from AT&T.) The spread of FM radio was thus choked, at
13
least temporarily.
14
Armstrong resisted RCA’s efforts. In response, RCA resisted Arm-
15
strong’s patents. After incorporating FM technology into the emerging
16
standard for television, RCA declared the patents invalid—baselessly,
17
and almost ﬁfteen years after they were issued. It thus refused to pay
18
him royalties. For six years, Armstrong fought an expensive war of lit-
19
igation to defend the patents. Finally, just as the patents expired, RCA
20
offered a settlement so low that it would not even cover Armstrong’s
21
lawyers’ fees. Defeated, broken, and now broke, in 1954 Armstrong
22
wrote a short note to his wife and then stepped out of a thirteenth-
23
story window to his death.
24
This is how the law sometimes works. Not often this tragically, and
25
rarely with heroic drama, but sometimes, this is how it works. From the
26
beginning, government and government agencies have been subject
27
to capture. They are more likely captured when a powerful interest is
28
threatened by either a legal or technical change. That powerful interest
29
too often exerts its inﬂuence within the government to get the govern-
30
ment to protect it. The rhetoric of this protection is of course always
31
public spirited; the reality is something different. Ideas that were as
32S
solid as rock in one age, but that, left to themselves, would crumble in
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another, are sustained through this subtle corruption of our political
1
process. RCA had what the Causbys did not: the power to stiﬂe the ef-
2
fect of technological change.
3
4
5
There’s no single inventor of the Internet. Nor is there any good
6
date upon which to mark its birth. Yet in a very short time, the Inter-
7
net has become part of ordinary American life. According to the Pew
8
Internet and American Life Project, 58 percent of Americans had ac-
9
cess to the Internet in 2002, up from 49 percent two years before.7
10
That number could well exceed two thirds of the nation by the end
11
of 2004.
12
As the Internet has been integrated into ordinary life, it has
13
changed things. Some of these changes are technical—the Internet has
14
made communication faster, it has lowered the cost of gathering data,
15
and so on. These technical changes are not the focus of this book. They
16
are important. They are not well understood. But they are the sort of
17
thing that would simply go away if we all just switched the Internet off.
18
They don’t affect people who don’t use the Internet, or at least they
19
don’t affect them directly. They are the proper subject of a book about
20
the Internet. But this is not a book about the Internet.
21
Instead, this book is about an effect of the Internet beyond the In-
22
ternet itself: an effect upon how culture is made. My claim is that the
23
Internet has induced an important and unrecognized change in that
24
process. That change will radically transform a tradition that is as old as
25
the Republic itself. Most, if they recognized this change, would reject
26
it. Yet most don’t even see the change that the Internet has introduced.
27
We can glimpse a sense of this change by distinguishing between
28
commercial and noncommercial culture, and by mapping the law’s reg-
29
ulation of each. By “commercial culture” I mean that part of our culture
30
that is produced and sold or produced to be sold. By “noncommercial
31
culture” I mean all the rest. When old men sat around parks or on
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1
street corners telling stories that kids and others consumed, that was
2
noncommercial culture. When Noah Webster published his “Reader,”
3
or Joel Barlow his poetry, that was commercial culture.
4
At the beginning of our history, and for just about the whole of our
5
tradition, noncommercial culture was essentially unregulated. Of
6
course, if your stories were lewd, or if your song disturbed the peace,
7
then the law might intervene. But the law was never directly concerned
8
with the creation or spread of this form of culture, and it left this cul-
9
ture “free.” The ordinary ways in which ordinary individuals shared and
10
transformed their culture—telling stories, reenacting scenes from plays
11
or TV, participating in fan clubs, sharing music, making tapes—were
12
left alone by the law.
13
The focus of the law was on commercial creativity. At ﬁrst slightly,
14
then quite extensively, the law protected the incentives of creators by
15
granting them exclusive rights to their creative work, so that they could
16
sell those exclusive rights in a commercial marketplace.8 This is also, of
17
course, an important part of creativity and culture, and it has become
18
an increasingly important part in America. But in no sense was it dom-
19
inant within our tradition. It was instead just one part, a controlled
20
part, balanced with the free.
21
This rough divide between the free and the controlled has now
22
been erased.9 The Internet has set the stage for this erasure and,
23
pushed by big media, the law has now affected it. For the ﬁrst time in
24
our tradition, the ordinary ways in which individuals create and share
25
culture fall within the reach of the regulation of the law, which has ex-
26
panded to draw within its control a vast amount of culture and crea-
27
tivity that it never reached before. The technology that preserved the
28
balance of our history—between uses of our culture that were free and
29
uses of our culture that were only upon permission—has been undone.
30
The consequence is that we are less and less a free culture, more and
31
more a permission culture.
32S
This change gets justiﬁed as necessary to protect commercial cre-
33R
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ativity. And indeed, protectionism is precisely its motivation. But the
1
protectionism that justiﬁes the changes that I will describe below is not
2
the limited and balanced sort that has deﬁned the law in the past. This
3
is not a protectionism to protect artists. It is instead a protectionism
4
to protect certain forms of business. Corporations threatened by the
5
potential of the Internet to change the way both commercial and
6
noncommercial culture are made and shared have united to induce
7
lawmakers to use the law to protect them. It is the story of RCA and
8
Armstrong; it is the dream of the Causbys.
9
For the Internet has unleashed an extraordinary possibility for many
10
to participate in the process of building and cultivating a culture that
11
reaches far beyond local boundaries. That power has changed the mar-
12
ketplace for making and cultivating culture generally, and that change
13
in turn threatens established content industries. The Internet is thus to
14
the industries that built and distributed content in the twentieth cen-
15
tury what FM radio was to AM radio, or what the truck was to the
16
railroad industry of the nineteenth century: the beginning of the end,
17
or at least a substantial transformation. Digital technologies, tied to the
18
Internet, could produce a vastly more competitive and vibrant market
19
for building and cultivating culture; that market could include a much
20
wider and more diverse range of creators; those creators could produce
21
and distribute a much more vibrant range of creativity; and depending
22
upon a few important factors, those creators could earn more on average
23
from this system than creators do today—all so long as the RCAs of our
24
day don’t use the law to protect themselves against this competition.
25
Yet, as I argue in the pages that follow, that is precisely what is hap-
26
pening in our culture today. These modern-day equivalents of the early
27
twentieth-century radio or nineteenth-century railroads are using their
28
power to get the law to protect them against this new, more efﬁcient,
29
more vibrant technology for building culture. They are succeeding in
30
their plan to remake the Internet before the Internet remakes them.
31
It doesn’t seem this way to many. The battles over copyright and the
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1
Internet seem remote to most. To the few who follow them, they seem
2
mainly about a much simpler brace of questions—whether “piracy” will
3
be permitted, and whether “property” will be protected. The “war” that
4
has been waged against the technologies of the Internet—what Mo-
5
tion Picture Association of America (MPAA) president Jack Valenti
6
calls his “own terrorist war”10—has been framed as a battle about the
7
rule of law and respect for property. To know which side to take in this
8
war, most think that we need only decide whether we’re for property or
9
against it.
10
If those really were the choices, then I would be with Jack Valenti
11
and the content industry. I, too, am a believer in property, and espe-
12
cially in the importance of what Mr. Valenti nicely calls “creative prop-
13
erty.” I believe that “piracy” is wrong, and that the law, properly tuned,
14
should punish “piracy,” whether on or off the Internet.
15
But those simple beliefs mask a much more fundamental question
16
and a much more dramatic change. My fear is that unless we come to see
17
this change, the war to rid the world of Internet “pirates” will also rid our
18
culture of values that have been integral to our tradition from the start.
19
These values built a tradition that, for at least the ﬁrst 180 years of
20
our Republic, guaranteed creators the right to build freely upon their
21
past, and protected creators and innovators from either state or private
22
control. The First Amendment protected creators against state control.
23
And as Professor Neil Netanel powerfully argues,11 copyright law, prop-
24
erly balanced, protected creators against private control. Our tradition
25
was thus neither Soviet nor the tradition of patrons. It instead carved out
26
a wide berth within which creators could cultivate and extend our culture.
27
Yet the law’s response to the Internet, when tied to changes in the
28
technology of the Internet itself, has massively increased the effective
29
regulation of creativity in America. To build upon or critique the cul-
30
ture around us one must ask, Oliver Twist–like, for permission ﬁrst.
31
Permission is, of course, often granted—but it is not often granted to
32S
the critical or the independent. We have built a kind of cultural nobil-
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ity; those within the noble class live easily; those outside it don’t. But it
1
is nobility of any form that is alien to our tradition.
2
The story that follows is about this war. Is it not about the “central-
3
ity of technology” to ordinary life. I don’t believe in gods, digital or
4
otherwise. Nor is it an effort to demonize any individual or group, for
5
neither do I believe in a devil, corporate or otherwise. It is not a moral-
6
ity tale. Nor is it a call to jihad against an industry.
7
It is instead an effort to understand a hopelessly destructive war in-
8
spired by the technologies of the Internet but reaching far beyond its
9
code. And by understanding this battle, it is an effort to map peace.
10
There is no good reason for the current struggle around Internet tech-
11
nologies to continue. There will be great harm to our tradition and
12
culture if it is allowed to continue unchecked. We must come to un-
13
derstand the source of this war. We must resolve it soon.
14
15
16
Like the Causbys’ battle, this war is, in part, about “property.”
17
The property of this war is not as tangible as the Causbys’, and no
18
innocent chicken has yet to lose its life. Yet the ideas surrounding this
19
“property” are as obvious to most as the Causbys’ claim about the sa-
20
credness of their farm was to them. We are the Causbys. Most of us
21
take for granted the extraordinarily powerful claims that the owners of
22
“intellectual property” now assert. Most of us, like the Causbys, treat
23
these claims as obvious. And hence we, like the Causbys, object when
24
a new technology interferes with this property. It is as plain to us as it
25
was to them that the new technologies of the Internet are “trespassing”
26
upon legitimate claims of “property.” It is as plain to us as it was to
27
them that the law should intervene to stop this trespass.
28
And thus, when geeks and technologists defend their Armstrong or
29
Wright brothers technology, most of us are simply unsympathetic. Com-
30
mon sense does not revolt. Unlike in the case of the unlucky Causbys,
31
common sense is on the side of the property owners in this war. Unlike
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1
the lucky Wright brothers, the Internet has not inspired a revolution
2
on its side.
3
My hope is to push this common sense along. I have become in-
4
creasingly amazed by the power of this idea of intellectual property
5
and, more importantly, its power to disable critical thought by policy
6
makers and citizens. There has never been a time in our history when
7
more of our “culture” was as “owned” as it is now. And yet there has
8
never been a time when the concentration of power to control the uses
9
of culture has been as unquestioningly accepted as it is now.
10
The puzzle is, Why?
11
Is it because we have come to understand a truth about the value
12
and importance of absolute property over ideas and culture? Is it be-
13
cause we have discovered that our tradition of rejecting such an ab-
14
solute claim was wrong?
15
Or is it because the idea of absolute property over ideas and culture
16
beneﬁts the RCAs of our time and ﬁts our own unreﬂective intuitions?
17
Is the radical shift away from our tradition of free culture an instance
18
of America correcting a mistake from its past, as we did after a bloody
19
war with slavery, and as we are slowly doing with inequality? Or is the
20
radical shift away from our tradition of free culture yet another example
21
of a political system captured by a few powerful special interests?
22
Does common sense lead to the extremes on this question because
23
common sense actually believes in these extremes? Or does common
24
sense stand silent in the face of these extremes because, as with Arm-
25
strong versus RCA, the more powerful side has ensured that it has the
26
more powerful view?
27
I don’t mean to be mysterious. My own views are resolved. I believe
28
it was right for common sense to revolt against the extremism of the
29
Causbys. I believe it would be right for common sense to revolt against
30
the extreme claims made today on behalf of “intellectual property.”
31
What the law demands today is increasingly as silly as a sheriff arrest-
32S
ing an airplane for trespass. But the consequences of this silliness will
33R
be much more profound.
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1
2
The struggle that rages just now centers on two ideas: “piracy” and
3
“property.” My aim in this book’s next two parts is to explore these two
4
ideas.
5
My method is not the usual method of an academic. I don’t want to
6
plunge you into a complex argument, buttressed with references to ob-
7
scure French theorists—however natural that is for the weird sort we
8
academics have become. Instead I begin in each part with a collection
9
of stories that set a context within which these apparently simple ideas
10
can be more fully understood.
11
The two sections set up the core claim of this book: that while the
12
Internet has indeed produced something fantastic and new, our gov-
13
ernment, pushed by big media to respond to this “something new,” is
14
destroying something very old. Rather than understanding the changes
15
the Internet might permit, and rather than taking time to let “common
16
sense” resolve how best to respond, we are allowing those most threat-
17
ened by the changes to use their power to change the law—and more
18
importantly, to use their power to change something fundamental about
19
who we have always been.
20
We allow this, I believe, not because it is right, and not because
21
most of us really believe in these changes. We allow it because the in-
22
terests most threatened are among the most powerful players in our
23
depressingly compromised process of making law. This book is the
24
story of one more consequence of this form of corruption—a conse-
25
quence to which most of us remain oblivious.
26
27
28
29
30
31
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
“PIRACY”
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Since the inception of the law regulating creative property, there
Po17
has been a war against “piracy.” The precise contours of this concept,
18
“piracy,” are hard to sketch, but the animating injustice is easy to cap-
19
ture. As Lord Mansﬁeld wrote in a case that extended the reach of
20
English copyright law to include sheet music,
21
22
A person may use the copy by playing it, but he has no right to
23
rob the author of the proﬁt, by multiplying copies and disposing
24
of them for his own use.1
25
26
Today we are in the middle of another “war” against “piracy.” The
27
Internet has provoked this war. The Internet makes possible the efﬁ-
28
cient spread of content. Peer-to-peer (p2p) ﬁle sharing is among the
29
most efﬁcient of the efﬁcient technologies the Internet enables. Using
30
distributed intelligence, p2p systems facilitate the easy spread of con-
31
tent in a way unimagined a generation ago.
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1
This efﬁciency does not respect the traditional lines of copyright.
2
The network doesn’t discriminate between the sharing of copyrighted
3
and uncopyrighted content. Thus has there been a vast amount of shar-
4
ing of copyrighted content. That sharing in turn has excited the war, as
5
copyright owners fear the sharing will “rob the author of the proﬁt.”
6
The warriors have turned to the courts, to the legislatures, and in-
7
creasingly to technology to defend their “property” against this “piracy.”
8
A generation of Americans, the warriors warn, is being raised to be-
9
lieve that “property” should be “free.” Forget tattoos, never mind body
10
piercing—our kids are becoming thieves!
11
There’s no doubt that “piracy” is wrong, and that pirates should be
12
punished. But before we summon the executioners, we should put this
13
notion of “piracy” in some context. For as the concept is increasingly
14
used, at its core is an extraordinary idea that is almost certainly wrong.
15
The idea goes something like this:
16
17
Creative work has value; whenever I use, or take, or build upon
18
the creative work of others, I am taking from them something of
19
value. Whenever I take something of value from someone else, I
20
should have their permission. The taking of something of value
21
from someone else without permission is wrong. It is a form of
22
piracy.
23
24
This view runs deep within the current debates. It is what NYU law
25
professor Rochelle Dreyfuss criticizes as the “if value, then right” the-
26
ory of creative property2—if there is value, then someone must have a
27
right to that value. It is the perspective that led a composers’ rights or-
28
ganization, ASCAP, to sue the Girl Scouts for failing to pay for the
29
songs that girls sang around Girl Scout campﬁres.3 There was “value”
30
(the songs) so there must have been a “right”—even against the Girl
31
Scouts.
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This idea is certainly a possible understanding of how creative
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property should work. It might well be a possible design for a system
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of law protecting creative property. But the “if value, then right” theory
1
of creative property has never been America’s theory of creative prop-
2
erty. It has never taken hold within our law.
3
Instead, in our tradition, intellectual property is an instrument. It
4
sets the groundwork for a richly creative society but remains sub-
5
servient to the value of creativity. The current debate has this turned
6
around. We have become so concerned with protecting the instrument
7
that we are losing sight of the value.
8
The source of this confusion is a distinction that the law no longer
9
takes care to draw—the distinction between republishing someone’s
10
work on the one hand and building upon or transforming that work on
11
the other. Copyright law at its birth had only publishing as its concern;
12
copyright law today regulates both.
13
Before the technologies of the Internet, this conﬂation didn’t mat-
14
ter all that much. The technologies of publishing were expensive; that
15
meant the vast majority of publishing was commercial. Commercial
16
entities could bear the burden of the law—even the burden of the
17
Byzantine complexity that copyright law has become. It was just one
18
more expense of doing business.
19
But with the birth of the Internet, this natural limit to the reach of
20
the law has disappeared. The law controls not just the creativity of
21
commercial creators but effectively that of anyone. Although that ex-
22
pansion would not matter much if copyright law regulated only “copy-
23
ing,” when the law regulates as broadly and obscurely as it does, the
24
extension matters a lot. The burden of this law now vastly outweighs
25
any original beneﬁt—certainly as it affects noncommercial creativity,
26
and increasingly as it affects commercial creativity as well. Thus, as
27
we’ll see more clearly in the chapters below, the law’s role is less and
28
less to support creativity, and more and more to protect certain indus-
29
tries against competition. Just at the time digital technology could
30
unleash an extraordinary range of commercial and noncommercial
31
creativity, the law burdens this creativity with insanely complex and
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vague rules and with the threat of obscenely severe penalties. We may
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1
be seeing, as Richard Florida writes, the “Rise of the Creative Class.”4
2
Unfortunately, we are also seeing an extraordinary rise of regulation of
3
this creative class.
4
These burdens make no sense in our tradition. We should begin by
5
understanding that tradition a bit more and by placing in their proper
6
context the current battles about behavior labeled “piracy.”
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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30
31
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3
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8
9
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13
14
CHAPTER ONE: Creators
15
16
In 1928, a cartoon character was born. An early Mickey Mouse
Co17
made his debut in May of that year, in a silent ﬂop called Plane Crazy.
18
In November, in New York City’s Colony Theater, in the ﬁrst widely
19
distributed cartoon synchronized with sound, Steamboat Willie brought
20
to life the character that would become Mickey Mouse.
21
Synchronized sound had been introduced to ﬁlm a year earlier in
22
the movie The Jazz Singer. That success led Walt Disney to copy the
23
technique and mix sound with cartoons. No one knew whether it
24
would work or, if it did work, whether it would win an audience. But
25
when Disney ran a test in the summer of 1928, the results were unam-
26
biguous. As Disney describes that ﬁrst experiment,
27
28
A couple of my boys could read music, and one of them could play
29
a mouth organ. We put them in a room where they could not see
30
the screen and arranged to pipe their sound into the room where
31
our wives and friends were going to see the picture.
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The boys worked from a music and sound-effects score. After
2
several false starts, sound and action got off with the gun. The
3
mouth organist played the tune, the rest of us in the sound de-
4
partment bammed tin pans and blew slide whistles on the beat.
5
The synchronization was pretty close.
6
The effect on our little audience was nothing less than elec-
7
tric. They responded almost instinctively to this union of sound
8
and motion. I thought they were kidding me. So they put me in
9
the audience and ran the action again. It was terrible, but it was
10
wonderful! And it was something new!1
11
12
Disney’s then partner, and one of animation’s most extraordinary
13
talents, Ub Iwerks, put it more strongly: “I have never been so thrilled
14
in my life. Nothing since has ever equaled it.”
15
Disney had created something very new, based upon something rel-
16
atively new. Synchronized sound brought life to a form of creativity
17
that had rarely—except in Disney’s hands—been anything more than
18
ﬁller for other ﬁlms. Throughout animation’s early history, it was Dis-
19
ney’s invention that set the standard that others struggled to match.
20
And quite often, Disney’s great genius, his spark of creativity, was built
21
upon the work of others.
22
This much is familiar. What you might not know is that 1928 also
23
marks another important transition. In that year, a comic (as opposed
24
to cartoon) genius created his last independently produced silent ﬁlm.
25
That genius was Buster Keaton. The ﬁlm was Steamboat Bill, Jr.
26
Keaton was born into a vaudeville family in 1895. In the era of
27
silent ﬁlm, he had mastered using broad physical comedy as a way to
28
spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was
29
a classic of this form, famous among ﬁlm buffs for its incredible stunts.
30
The ﬁlm was classic Keaton—wildly popular and among the best of its
31
genre.
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Steamboat Bill, Jr. appeared before Disney’s cartoon Steamboat Willie.
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The coincidence of titles is not coincidental. Steamboat Willie is a di-
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rect cartoon parody of Steamboat Bill,2 and both are built upon a com-
1
mon song as a source. It is not just from the invention of synchronized
2
sound in The Jazz Singer that we get Steamboat Willie. It is also from
3
Buster Keaton’s invention of Steamboat Bill, Jr., itself inspired by the
4
song “Steamboat Bill,” that we get Steamboat Willie, and then from
5
Steamboat Willie, Mickey Mouse.
6
This “borrowing” was nothing unique, either for Disney or for the
7
industry. Disney was always parroting the feature-length mainstream
8
ﬁlms of his day.3 So did many others. Early cartoons are ﬁlled with
9
knockoffs—slight variations on winning themes; retellings of ancient
10
stories. The key to success was the brilliance of the differences. With
11
Disney, it was sound that gave his animation its spark. Later, it was the
12
quality of his work relative to the production-line cartoons with which
13
he competed. Yet these additions were built upon a base that was bor-
14
rowed. Disney added to the work of others before him, creating some-
15
thing new out of something just barely old.
16
Sometimes this borrowing was slight. Sometimes it was signiﬁcant.
17
Think about the fairy tales of the Brothers Grimm. If you’re as oblivi-
18
ous as I was, you’re likely to think that these tales are happy, sweet sto-
19
ries, appropriate for any child at bedtime. In fact, the Grimm fairy tales
20
are, well, for us, grim. It is a rare and perhaps overly ambitious parent
21
who would dare to read these bloody, moralistic stories to his or her
22
child, at bedtime or anytime.
23
Disney took these stories and retold them in a way that carried
24
them into a new age. He animated the stories, with both characters and
25
light. Without removing the elements of fear and danger altogether, he
26
made funny what was dark and injected a genuine emotion of compas-
27
sion where before there was fear. And not just with the work of the
28
Brothers Grimm. Indeed, the catalog of Disney work drawing upon
29
the work of others is astonishing when set together: Snow White
30
(1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi
31
(1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland
S32
(1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp
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(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
2
The Sword in the Stone (1963), and The Jungle Book (1967)—not to
3
mention a recent example that we should perhaps quickly forget, Trea-
4
sure Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped
5
creativity from the culture around him, mixed that creativity with his
6
own extraordinary talent, and then burned that mix into the soul of his
7
culture. Rip, mix, and burn.
8
This is a kind of creativity. It is a creativity that we should remem-
9
ber and celebrate. There are some who would say that there is no cre-
10
ativity except this kind. We don’t need to go that far to recognize its
11
importance. We could call this “Disney creativity,” though that would
12
be a bit misleading. It is, more precisely, “Walt Disney creativity”—a
13
form of expression and genius that builds upon the culture around us
14
and makes it something different.
15
In 1928, the culture that Disney was free to draw upon was rela-
16
tively fresh. The public domain in 1928 was not very old and was
17
therefore quite vibrant. The average term of copyright was just around
18
thirty years—for that minority of creative work that was in fact copy-
19
righted.4 That means that for thirty years, on average, the authors or
20
copyright holders of a creative work had an “exclusive right” to control
21
certain uses of the work. To use this copyrighted work in limited ways
22
required the permission of the copyright owner.
23
At the end of a copyright term, a work passes into the public do-
24
main. No permission is then needed to draw upon or use that work. No
25
permission and, hence, no lawyers. The public domain is a “lawyer-free
26
zone.” Thus, most of the content from the nineteenth century was free
27
for Disney to use and build upon in 1928. It was free for anyone—
28
whether connected or not, whether rich or not, whether approved or
29
not—to use and build upon.
30
This is the ways things always were—until quite recently. For most
31
of our history, the public domain was just over the horizon. From 1790
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until 1978, the average copyright term was never more than thirty-two
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years, meaning that most culture just a generation and a half old was
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free for anyone to build upon without the permission of anyone else.
1
Today’s equivalent would be for creative work from the 1960s and
2
1970s to now be free for the next Walt Disney to build upon without
3
permission. Yet today, the public domain is presumptive only for con-
4
tent from before the Great Depression.
5
6
7
Of course, Walt Disney had no monopoly on “Walt Disney cre-
8
ativity.” Nor does America. The norm of free culture has, until recently,
9
and except within totalitarian nations, been broadly exploited and quite
10
universal.
11
Consider, for example, a form of creativity that seems strange to
12
many Americans but that is inescapable within Japanese culture:
13
manga, or comics. The Japanese are fanatics about comics. Some 40
14
percent of publications are comics, and 30 percent of publication rev-
15
enue derives from comics. They are everywhere in Japanese society, at
16
every magazine stand, carried by a large proportion of commuters on
17
Japan’s extraordinary system of public transportation.
18
Americans tend to look down upon this form of culture. That’s an
19
unattractive characteristic of ours. We’re likely to misunderstand much
20
about manga, because few of us have ever read anything close to the
21
stories that these “graphic novels” tell. For the Japanese, manga cover
22
every aspect of social life. For us, comics are “men in tights.” And any-
23
way, it’s not as if the New York subways are ﬁlled with readers of Joyce
24
or even Hemingway. People of different cultures distract themselves in
25
different ways, the Japanese in this interestingly different way.
26
But my purpose here is not to understand manga. It is to describe a
27
variant on manga that from a lawyer’s perspective is quite odd, but
28
from a Disney perspective is quite familiar.
29
This is the phenomenon of doujinshi. Doujinshi are also comics, but
30
they are a kind of copycat comic. A rich ethic governs the creation of
31
doujinshi. It is not doujinshi if it is just a copy; the artist must make a
S32
contribution to the art he copies, by transforming it either subtly or
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signiﬁcantly. A doujinshi comic can thus take a mainstream comic and
2
develop it differently—with a different story line. Or the comic can
3
keep the character in character but change its look slightly. There is no
4
formula for what makes the doujinshi sufﬁciently “different.” But they
5
must be different if they are to be considered true doujinshi. Indeed,
6
there are committees that review doujinshi for inclusion within shows
7
and reject any copycat comic that is merely a copy.
8
These copycat comics are not a tiny part of the manga market. They
9
are huge. More than 33,000 “circles” of creators from across Japan pro-
10
duce these bits of Walt Disney creativity. More than 450,000 Japanese
11
come together twice a year, in the largest public gathering in the coun-
12
try, to exchange and sell them. This market exists in parallel to the
13
mainstream commercial manga market. In some ways, it obviously
14
competes with that market, but there is no sustained effort by those
15
who control the commercial manga market to shut the doujinshi mar-
16
ket down. It ﬂourishes, despite the competition and despite the law.
17
The most puzzling feature of the doujinshi market, for those
18
trained in the law, at least, is that it is allowed to exist at all. Under
19
Japanese copyright law, which in this respect (on paper) mirrors Amer-
20
ican copyright law, the doujinshi market is an illegal one. Doujinshi are
21
plainly “derivative works.” There is no general practice by doujinshi
22
artists of securing the permission of the manga creators. Instead, the
23
practice is simply to take and modify the creations of others, as Walt
24
Disney did with Steamboat Bill, Jr. Under both Japanese and American
25
law, that “taking” without the permission of the original copyright
26
owner is illegal. It is an infringement of the original copyright to make
27
a copy or a derivative work without the original copyright owner’s
28
permission.
29
Yet this illegal market exists and indeed ﬂourishes in Japan, and in
30
the view of many, it is precisely because it exists that Japanese manga
31
ﬂourish. As American graphic novelist Judd Winick said to me, “The
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early days of comics in America are very much like what’s going on
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in Japan now. . . . American comics were born out of copying each
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other. . . . That’s how [the artists] learn to draw—by going into comic
1
books and not tracing them, but looking at them and copying them”
2
and building from them.5
3
American comics now are quite different, Winick explains, in part
4
because of the legal difﬁculty of adapting comics the way doujinshi are
5
allowed. Speaking of Superman, Winick told me, “there are these rules
6
and you have to stick to them.” There are things Superman “cannot”
7
do. “As a creator, it’s frustrating having to stick to some parameters
8
which are ﬁfty years old.”
9
The norm in Japan mitigates this legal difﬁculty. Some say it is pre-
10
cisely the beneﬁt accruing to the Japanese manga market that explains
11
the mitigation. Temple University law professor Salil Mehra, for ex-
12
ample, hypothesizes that the manga market accepts these technical
13
violations because they spur the manga market to be more wealthy and
14
productive. Everyone would be worse off if doujinshi were banned, so
15
the law does not ban doujinshi.6
16
The problem with this story, however, as Mehra plainly acknowl-
17
edges, is that the mechanism producing this laissez faire response is not
18
clear. It may well be that the market as a whole is better off if doujin-
19
shi are permitted rather than banned, but that doesn’t explain why in-
20
dividual copyright owners don’t sue nonetheless. If the law has no
21
general exception for doujinshi, and indeed in some cases individual
22
manga artists have sued doujinshi artists, why is there not a more gen-
23
eral pattern of blocking this “free taking” by the doujinshi culture?
24
I spent four wonderful months in Japan, and I asked this question
25
as often as I could. Perhaps the best account in the end was offered by
26
a friend from a major Japanese law ﬁrm. “We don’t have enough
27
lawyers,” he told me one afternoon. There “just aren’t enough resources
28
to prosecute cases like this.”
29
This is a theme to which we will return: that regulation by law is a
30
function of both the words on the books and the costs of making those
31
words have effect. For now, focus on the obvious question that is
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begged: Would Japan be better off with more lawyers? Would manga
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be richer if doujinshi artists were regularly prosecuted? Would the
2
Japanese gain something important if they could end this practice of
3
uncompensated sharing? Does piracy here hurt the victims of the
4
piracy, or does it help them? Would lawyers ﬁghting this piracy help
5
their clients or hurt them?
6
7
8
Let’s pause for a moment.
9
If you’re like I was a decade ago, or like most people are when they
10
ﬁrst start thinking about these issues, then just about now you should
11
be puzzled about something you hadn’t thought through before.
12
We live in a world that celebrates “property.” I am one of those cel-
13
ebrants. I believe in the value of property in general, and I also believe
14
in the value of that weird form of property that lawyers call “intellec-
15
tual property.”7 A large, diverse society cannot survive without prop-
16
erty; a large, diverse, and modern society cannot ﬂourish without
17
intellectual property.
18
But it takes just a second’s reﬂection to realize that there is plenty of
19
value out there that “property” doesn’t capture. I don’t mean “money
20
can’t buy you love,” but rather, value that is plainly part of a process of
21
production, including commercial as well as noncommercial produc-
22
tion. If Disney animators had stolen a set of pencils to draw Steamboat
23
Willie, we’d have no hesitation in condemning that taking as wrong—
24
even though trivial, even if unnoticed. Yet there was nothing wrong, at
25
least under the law of the day, with Disney’s taking from Buster Keaton
26
or from the Brothers Grimm. There was nothing wrong with the tak-
27
ing from Keaton because Disney’s use would have been considered
28
“fair.” There was nothing wrong with the taking from the Grimms be-
29
cause the Grimms’ work was in the public domain.
30
Thus, even though the things that Disney took—or more generally,
31
the things taken by anyone exercising Walt Disney creativity—are
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valuable, our tradition does not treat those takings as wrong. Some
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things remain free for the taking within a free culture, and that free-
1
dom is good.
2
The same with the doujinshi culture. If a doujinshi artist broke into
3
a publisher’s ofﬁce and ran off with a thousand copies of his latest
4
work—or even one copy—without paying, we’d have no hesitation in
5
saying the artist was wrong. In addition to having trespassed, he would
6
have stolen something of value. The law bans that stealing in whatever
7
form, whether large or small.
8
Yet there is an obvious reluctance, even among Japanese lawyers, to
9
say that the copycat comic artists are “stealing.” This form of Walt Dis-
10
ney creativity is seen as fair and right, even if lawyers in particular ﬁnd
11
it hard to say why.
12
It’s the same with a thousand examples that appear everywhere once
13
you begin to look. Scientists build upon the work of other scientists
14
without asking or paying for the privilege. (“Excuse me, Professor Ein-
15
stein, but may I have permission to use your theory of relativity to show
16
that you were wrong about quantum physics?”) Acting companies per-
17
form adaptations of the works of Shakespeare without securing per-
18
mission from anyone. (Does anyone believe Shakespeare would be
19
better spread within our culture if there were a central Shakespeare
20
rights clearinghouse that all productions of Shakespeare must appeal
21
to ﬁrst?) And Hollywood goes through cycles with a certain kind of
22
movie: ﬁve asteroid ﬁlms in the late 1990s; two volcano disaster ﬁlms
23
in 1997.
24
Creators here and everywhere are always and at all times building
25
upon the creativity that went before and that surrounds them now.
26
That building is always and everywhere at least partially done without
27
permission and without compensating the original creator. No society,
28
free or controlled, has ever demanded that every use be paid for or that
29
permission for Walt Disney creativity must always be sought. Instead,
30
every society has left a certain bit of its culture free for the taking—free
31
societies more fully than unfree, perhaps, but all societies to some degree.
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The hard question is therefore not whether a culture is free. All cul-
2
tures are free to some degree. The hard question instead is “How free is
3
this culture?” How much, and how broadly, is the culture free for oth-
4
ers to take and build upon? Is that freedom limited to party members?
5
To members of the royal family? To the top ten corporations on the
6
New York Stock Exchange? Or is that freedom spread broadly? To
7
artists generally, whether afﬁliated with the Met or not? To musicians
8
generally, whether white or not? To ﬁlmmakers generally, whether af-
9
ﬁliated with a studio or not?
10
Free cultures are cultures that leave a great deal open for others to
11
build upon; unfree, or permission, cultures leave much less. Ours was a
12
free culture. It is becoming much less so.
13
14
15
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17
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20
21
22
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27
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3
4
5
6
7
8
9
10
11
12
13
14
CHAPTER TWO: “Mere Copyists”
15
16
In 1839, Louis Daguerre invented the ﬁrst practical technology for
Co17
producing what we would call “photographs.” Appropriately enough,
18
they were called “daguerreotypes.” The process was complicated and
19
expensive, and the ﬁeld was thus limited to professionals and a few
20
zealous and wealthy amateurs. (There was even an American Daguerre
21
Association that helped regulate the industry, as do all such associa-
22
tions, by keeping competition down so as to keep prices up.)
23
Yet despite high prices, the demand for daguerreotypes was strong.
24
This pushed inventors to ﬁnd simpler and cheaper ways to make “au-
25
tomatic pictures.” William Talbot soon discovered a process for mak-
26
ing “negatives.” But because the negatives were glass, and had to be
27
kept wet, the process still remained expensive and cumbersome. In the
28
1870s, dry plates were developed, making it easier to separate the tak-
29
ing of a picture from its developing. These were still plates of glass, and
30
thus it was still not a process within reach of most amateurs.
31
The technological change that made mass photography possible
S32
didn’t happen until 1888, and was the creation of a single man. George
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Eastman, himself an amateur photographer, was frustrated by the
2
technology of photographs made with plates. In a ﬂash of insight (so
3
to speak), Eastman saw that if the ﬁlm could be made to be ﬂexible, it
4
could be held on a single spindle. That roll could then be sent to a de-
5
veloper, driving the costs of photography down substantially. By lower-
6
ing the costs, Eastman expected he could dramatically broaden the
7
population of photographers.
8
Eastman developed ﬂexible, emulsion-coated paper ﬁlm and placed
9
rolls of it in small, simple cameras: the Kodak. The device was mar-
10
keted on the basis of its simplicity. “You press the button and we do the
11
rest.”1 As he described in The Kodak Primer:
12
13
The principle of the Kodak system is the separation of the work
14
that any person whomsoever can do in making a photograph,
15
from the work that only an expert can do. . . . We furnish any-
16
body, man, woman or child, who has sufﬁcient intelligence to
17
point a box straight and press a button, with an instrument which
18
altogether removes from the practice of photography the neces-
19
sity for exceptional facilities or, in fact, any special knowledge of
20
the art. It can be employed without preliminary study, without a
21
darkroom and without chemicals.2
22
23
For $25, anyone could make pictures. The camera came preloaded
24
with ﬁlm, and when it had been used, the camera was returned to an
25
Eastman factory, where the ﬁlm was developed. Over time, of course,
26
the cost of the camera and the ease with which it could be used both
27
improved. Roll ﬁlm thus became the basis for the explosive growth of
28
popular photography. Eastman’s camera ﬁrst went on sale in 1888; one
29
year later, Kodak was printing more than six thousand negatives a day.
30
From 1888 through 1909, while industrial production was rising by 4.7
31
percent, photographic equipment and material sales increased by 11
32S
percent.3 Eastman Kodak’s sales during the same period experienced
33R
an average annual increase of over 17 percent.4
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The real signiﬁcance of Eastman’s invention, however, was not
1
economic. It was social. Professional photography gave individuals a
2
glimpse of places they would never otherwise see. Amateur photogra-
3
phy gave them the ability to record their own lives in a way they had
4
never been able to do before. As author Brian Coe notes, “For the ﬁrst
5
time the snapshot album provided the man on the street with a per-
6
manent record of his family and its activities. . . . For the ﬁrst time in
7
history there exists an authentic visual record of the appearance and ac-
8
tivities of the common man made without [literary] interpretation
9
or bias.”5
10
In this way, the Kodak camera and ﬁlm were technologies of ex-
11
pression. The pencil or paintbrush was also a technology of expression,
12
of course. But it took years of training before they could be deployed by
13
amateurs in any useful or effective way. With the Kodak, expression
14
was possible much sooner and more simply. The barrier to expression
15
was lowered. Snobs would sneer at its “quality”; professionals would
16
discount it as irrelevant. But watch a child study how best to frame a
17
picture and you get a sense of the experience of creativity that the Ko-
18
dak enabled. Democratic tools gave ordinary people a way to express
19
themselves more easily than any tools could have before.
20
What was required for this technology to ﬂourish? Obviously,
21
Eastman’s genius was an important part. But also important was the le-
22
gal environment within which Eastman’s invention grew. For early in
23
the history of photography, there was a series of judicial decisions that
24
could well have changed the course of photography substantially.
25
Courts were asked whether the photographer, amateur or professional,
26
required permission before he could capture and print whatever image
27
he wanted. Their answer was no.6
28
The arguments in favor of requiring permission will sound surpris-
29
ingly familiar. The photographer was “taking” something from the per-
30
son or building whose photograph he shot—pirating something of
31
value. Some even thought he was taking the target’s soul. Just as Dis-
S32
ney was not free to take the pencils that his animators used to draw
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1
Mickey, so, too, should these photographers not be free to take images
2
that they thought valuable.
3
On the other side was an argument that should be familiar, as well.
4
Sure, there may be something of value being used. But citizens should
5
have the right to capture at least those images that stand in public view.
6
(Louis Brandeis, who would become a Supreme Court Justice, thought
7
the rule should be different for images from private spaces.7) It may be
8
that this means that the photographer gets something for nothing. Just
9
as Disney could take inspiration from Steamboat Bill, Jr. or the Broth-
10
ers Grimm, the photographer should be free to capture an image with-
11
out compensating the source.
12
Fortunately for Mr. Eastman, and for photography in general, these
13
early decisions went in favor of the pirates. In general, no permission
14
would be required before an image could be captured and shared with
15
others. Instead, permission was presumed. Freedom was the default.
16
(The law would eventually craft an exception for famous people: com-
17
mercial photographers who snap pictures of famous people for com-
18
mercial purposes have more restrictions than the rest of us. But in the
19
ordinary case, the image can be captured without clearing the rights to
20
do the capturing.8)
21
We can only speculate about how photography would have devel-
22
oped had the law gone the other way. If the presumption had been
23
against the photographer, then the photographer would have had to
24
demonstrate permission. Perhaps Eastman Kodak would have had to
25
demonstrate permission, too, before it developed the ﬁlm upon which
26
images were captured. After all, if permission were not granted, then
27
Eastman Kodak would be beneﬁting from the “theft” committed by
28
the photographer. Just as Napster beneﬁted from the copyright in-
29
fringements committed by Napster users, Kodak would be beneﬁting
30
from the “image-right” infringement of its photographers. We could
31
imagine the law then requiring that some form of permission be
32S
demonstrated before a company developed pictures. We could imagine
33R
a system developing to demonstrate that permission.
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But though we could imagine this system of permission, it would
1
be very hard to see how photography could have ﬂourished as it did if
2
the requirement for permission had been built into the rules that gov-
3
ern it. Photography would have existed. It would have grown in im-
4
portance over time. Professionals would have continued to use the
5
technology as they did—since professionals could have more easily borne
6
the burdens of the permission system. But the spread of photography
7
to ordinary people would not have occurred. Nothing like that growth
8
would have been realized. And certainly, nothing like that growth in a
9
democratic technology of expression would have been realized.
10
11
12
If you drive through San Francisco’s Presidio, you might see two
13
gaudy yellow school buses painted over with colorful and striking im-
14
ages, and the logo “Just Think!” in place of the name of a school. But
15
there’s little that’s “just” cerebral in the projects that these busses en-
16
able. These buses are ﬁlled with technologies that teach kids to tinker
17
with ﬁlm. Not the ﬁlm of Eastman. Not even the ﬁlm of your VCR.
18
Rather the “ﬁlm” of digital cameras. Just Think! is a project that en-
19
ables kids to make ﬁlms, as a way to understand and critique the ﬁlmed
20
culture that they ﬁnd all around them. Each year, these busses travel to
21
more than thirty schools and enable three hundred to ﬁve hundred
22
children to learn something about media by doing something with me-
23
dia. By doing, they think. By tinkering, they learn.
24
These buses are not cheap, but the technology they carry is increas-
25
ingly so. The cost of a high-quality digital video system has fallen dra-
26
matically. As one analyst puts it, “Five years ago, a good real-time
27
digital video editing system cost $25,000. Today you can get profes-
28
sional quality for $595.”9 These buses are ﬁlled with technology that
29
would have cost hundreds of thousands just ten years ago. And it is
30
now feasible to imagine not just buses like this, but classrooms across
31
the country where kids are learning more and more of something
S32
teachers call “media literacy.”
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“Media literacy,” as Dave Yanofsky, the executive director of Just
2
Think!, puts it, “is the ability . . . to understand, analyze, and decon-
3
struct media images. Its aim is to make [kids] literate about the way
4
media works, the way it’s constructed, the way it’s delivered, and the
5
way people access it.”
6
This may seem like an odd way to think about “literacy.” For most
7
people, literacy is about reading and writing. Faulkner and Hemingway
8
and noticing split inﬁnitives are the things that “literate” people know
9
about.
10
Maybe. But in a world where children see on average 390 hours of
11
television commercials per year, or between 20,000 and 45,000 com-
12
mercials generally,10 it is increasingly important to understand the
13
“grammar” of media. For just as there is a grammar for the written
14
word, so, too, is there one for media. And just as kids learn how to write
15
by writing lots of terrible prose, kids learn how to write media by con-
16
structing lots of (at least at ﬁrst) terrible media.
17
A growing ﬁeld of academics and activists sees this form of literacy
18
as crucial to the next generation of culture. For though anyone who has
19
written understands how difﬁcult writing is—how difﬁcult it is to se-
20
quence the story, to keep a reader’s attention, to craft language to be
21
understandable—few of us have any real sense of how difﬁcult media
22
is. Or more fundamentally, few of us have a sense of how media works,
23
how it holds an audience or leads it through a story, how it triggers
24
emotion or builds suspense.
25
It took ﬁlmmaking a generation before it could do these things well.
26
But even then, the knowledge was in the ﬁlming, not in writing about
27
the ﬁlm. The skill came from experiencing the making of a ﬁlm, not
28
from reading a book about it. One learns to write by writing and then
29
reﬂecting upon what one has written. One learns to write with images
30
by making them and then reﬂecting upon what one has created.
31
This grammar has changed as media has changed. When it was just
32S
ﬁlm, as Elizabeth Daley, executive director of the University of South-
33R
ern California’s Annenberg Center for Communication and dean of the
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USC School of Cinema-Television, explained to me, the grammar was
1
about “the placement of objects, color, . . . rhythm, pacing, and tex-
2
ture.”11 But as computers open up an interactive space where a story is
3
“played” as well as experienced, that grammar changes. The simple
4
control of narrative is lost, and so other techniques are necessary. Au-
5
thor Michael Crichton had mastered the narrative of science ﬁction.
6
But when he tried to design a computer game based on one of his
7
works, it was a new craft he had to learn. How to lead people through
8
a game without their feeling they have been led was not obvious, even
9
to a wildly successful author.12
10
This skill is precisely the craft a ﬁlmmaker learns. As Daley de-
11
scribes, “people are very surprised about how they are led through a
12
ﬁlm. [I]t is perfectly constructed to keep you from seeing it, so you
13
have no idea. If a ﬁlmmaker succeeds you do not know how you were
14
led.” If you know you were led through a ﬁlm, the ﬁlm has failed.
15
Yet the push for an expanded literacy—one that goes beyond text to
16
include audio and visual elements—is not about making better ﬁlm di-
17
rectors. The aim is not to improve the profession of ﬁlmmaking at all.
18
Instead, as Daley explained,
19
20
From my perspective, probably the most important digital divide
21
is not access to a box. It’s the ability to be empowered with the
22
language that that box works in. Otherwise only a very few people
23
can write with this language, and all the rest of us are reduced to
24
being read-only.
25
26
“Read-only.” Passive recipients of culture produced elsewhere.
27
Couch potatoes. Consumers. This is the world of media from the
28
twentieth century.
29
The twenty-ﬁrst century could be different. This is the crucial point:
30
It could be both read and write. Or at least reading and better under-
31
standing the craft of writing. Or best, reading and understanding the
S32
tools that enable the writing to lead or mislead. The aim of any literacy,
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1
and this literacy in particular, is to “empower people to choose the appro-
2
priate language for what they need to create or express.”13 It is to enable
3
students “to communicate in the language of the twenty-ﬁrst century.”14
4
As with any language, this language comes more easily to some
5
than to others. It doesn’t necessarily come more easily to those who ex-
6
cel in written language. Daley and Stephanie Barish, director of the In-
7
stitute for Multimedia Literacy at the Annenberg Center, describe one
8
particularly poignant example of a project they ran in a high school.
9
The high school was a very poor inner-city Los Angeles school. In all
10
the traditional measures of success, this school was a failure. But Daley
11
and Barish ran a program that gave kids an opportunity to use ﬁlm
12
to express meaning about something the students know something
13
about—gun violence.
14
The class was held on Friday afternoons, and it created a relatively
15
new problem for the school. While the challenge in most classes was
16
getting the kids to come, the challenge in this class was keeping them
17
away. The “kids were showing up at 6 A.M. and leaving at 5 at night,”
18
said Barish. They were working harder than in any other class to do
19
what education should be about—learning how to express themselves.
20
Using whatever “free web stuff they could ﬁnd,” and relatively sim-
21
ple tools to enable the kids to mix “image, sound, and text,” Barish said
22
this class produced a series of projects that showed something about
23
gun violence that few would otherwise understand. This was an issue
24
close to the lives of these students. The project “gave them a tool and
25
empowered them to be able to both understand it and talk about it,”
26
Barish explained. That tool succeeded in creating expression—far more
27
successfully and powerfully than could have been created using only
28
text. “If you had said to these students, ‘you have to do it in text,’ they
29
would’ve just thrown their hands up and gone and done something
30
else,” Barish described, in part, no doubt, because expressing them-
31
selves in text is not something these students can do well. Yet neither
32S
is text a form in which these ideas can be expressed well. The power of
33R
this message depended upon its connection to this form of expression.
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“But isn’t education about teaching kids to write?” I asked. In part,
1
of course, it is. But why are we teaching kids to write? Education, Da-
2
ley explained, is about giving students a way of “constructing mean-
3
ing.” To say that that means just writing is like saying teaching writing
4
is only about teaching kids how to spell. Text is one part—and increas-
5
ingly, not the most powerful part—of constructing meaning. As Daley
6
explained in the most moving part of our interview,
7
8
What you want is to give these students ways of constructing
9
meaning. If all you give them is text, they’re not going to do it.
10
Because they can’t. You know, you’ve got Johnny who can look at
11
a video, he can play a video game, he can do grafﬁti all over your
12
walls, he can take your car apart, and he can do all sorts of other
13
things. He just can’t read your text. So Johnny comes to school
14
and you say, “Johnny, you’re illiterate. Nothing you can do mat-
15
ters.” Well, Johnny then has two choices: He can dismiss you or
16
he [can] dismiss himself. If his ego is healthy at all, he’s going to
17
dismiss you. [But i]nstead, if you say, “Well, with all these things
18
that you can do, let’s talk about this issue. Play for me music that
19
you think reﬂects that, or show me images that you think reﬂect
20
that, or draw for me something that reﬂects that.” Not by giving
21
a kid a video camera and . . . saying, “Let’s go have fun with the
22
video camera and make a little movie.” But instead, really help
23
you take these elements that you understand, that are your lan-
24
guage, and construct meaning about the topic. . . .
25
That empowers enormously. And then what happens, of
26
course, is eventually, as it has happened in all these classes, they
27
bump up against the fact, “I need to explain this and I really need
28
to write something.” And as one of the teachers told Stephanie,
29
they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
30
Because they needed to. There was a reason for doing it. They
31
needed to say something, as opposed to just jumping through
S32
your hoops. They actually needed to use a language that they
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1
didn’t speak very well. But they had come to understand that they
2
had a lot of power with this language.”
3
4
When two planes crashed into the World Trade Center, another into
5
the Pentagon, and a fourth into a Pennsylvania ﬁeld, all media around
6
the world shifted to this news. Every moment of just about every day for
7
that week, and for weeks after, television in particular, and media gener-
8
ally, retold the story of the events we had just witnessed. The telling was
9
a retelling, because we had seen the events that were described. The ge-
10
nius of this awful act of terrorism was that the delayed second attack was
11
perfectly timed to assure that the whole world would be watching.
12
These retellings had an increasingly familiar feel. There was music
13
scored for the intermissions, and fancy graphics that ﬂashed across the
14
screen. There was a formula to interviews. There was “balance,” and
15
seriousness. This was news choreographed in the way we have increas-
16
ingly come to expect it, “news as entertainment,” even if the entertain-
17
ment is tragedy.
18
But in addition to this produced news about the “tragedy of Sep-
19
tember 11,” those of us tied to the Internet came to see a very different
20
production as well. The Internet was ﬁlled with accounts of the same
21
events. Yet these Internet accounts had a very different ﬂavor. Some
22
people constructed photo pages that captured images from around the
23
world and presented them as slide shows with text. Some offered open
24
letters. There were sound recordings. There was anger and frustration.
25
There were attempts to provide context. There was, in short, an ex-
26
traordinary worldwide barn raising, in the sense Mike Godwin uses
27
the term in his book Cyber Rights, around a news event that had cap-
28
tured the attention of the world. There was ABC and CBS, but there
29
was also the Internet.
30
I don’t mean simply to praise the Internet—though I do think the
31
people who supported this form of speech should be praised. I mean
32S
instead to point to a signiﬁcance in this form of speech. For like a Ko-
33R
dak, the Internet enables people to capture images. And like in a movie
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by a student on the “Just Think!” bus, the visual images could be mixed
1
with sound or text.
2
But unlike any technology for simply capturing images, the Inter-
3
net allows these creations to be shared with an extraordinary number of
4
people, practically instantaneously. This is something new in our tradi-
5
tion—not just that culture can be captured mechanically, and obviously
6
not just that events are commented upon critically, but that this mix of
7
captured images, sound, and commentary can be widely spread practi-
8
cally instantaneously.
9
September 11 was not an aberration. It was a beginning. Around
10
the same time, a form of communication that has grown dramatically
11
was just beginning to come into public consciousness: the Web-log, or
12
blog. The blog is a kind of public diary, and within some cultures, such
13
as in Japan, it functions very much like a diary. In those cultures, it
14
records private facts in a public way—it’s a kind of electronic Jerry
15
Springer, available anywhere in the world.
16
But in the United States, blogs have taken on a very different char-
17
acter. There are some who use the space simply to talk about their pri-
18
vate life. But there are many who use the space to engage in public
19
discourse. Discussing matters of public import, criticizing others who
20
are mistaken in their views, criticizing politicians about the decisions
21
they make, offering solutions to problems we all see: blogs create the
22
sense of a virtual public meeting, but one in which we don’t all hope to
23
be there at the same time and in which conversations are not necessar-
24
ily linked. The best of the blog entries are relatively short; they point
25
directly to words used by others, criticizing with or adding to them.
26
They are arguably the most important form of unchoreographed pub-
27
lic discourse that we have.
28
That’s a strong statement. Yet it says as much about our democracy
29
as it does about blogs. This is the part of America that is most difﬁcult
30
for those of us who love America to accept: Our democracy has atro-
31
phied. Of course we have elections, and most of the time the courts al-
S32
low those elections to count. A relatively small number of people vote
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1
in those elections. The cycle of these elections has become totally pro-
2
fessionalized and routinized. Most of us think this is democracy.
3
But democracy has never just been about elections. Democracy
4
means rule by the people, but rule means something more than mere
5
elections. In our tradition, it also means control through reasoned dis-
6
course. This was the idea that captured the imagination of Alexis de
7
Tocqueville, the nineteenth-century French lawyer who wrote the
8
most important account of early “Democracy in America.” It wasn’t
9
popular elections that fascinated him—it was the jury, an institution
10
that gave ordinary people the right to choose life or death for other cit-
11
izens. And most fascinating for him was that the jury didn’t just vote
12
about the outcome they would impose. They deliberated. Members ar-
13
gued about the “right” result; they tried to persuade each other of the
14
“right” result, and in criminal cases at least, they had to agree upon a
15
unanimous result for the process to come to an end.15
16
Yet even this institution ﬂags in American life today. And in its
17
place, there is no systematic effort to enable citizen deliberation. Some
18
are pushing to create just such an institution.16 And in some towns in
19
New England, something close to deliberation remains. But for most
20
of us for most of the time, there is no time or place for “democratic de-
21
liberation” to occur.
22
More bizarrely, there is generally not even permission for it to oc-
23
cur. We, the most powerful democracy in the world, have developed a
24
strong norm against talking about politics. It’s ﬁne to talk about poli-
25
tics with people you agree with. But it is rude to argue about politics
26
with people you disagree with. Political discourse becomes isolated,
27
and isolated discourse becomes more extreme.17 We say what our
28
friends want to hear, and hear very little beyond what our friends say.
29
Enter the blog. The blog’s very architecture solves one part of this
30
problem. People post when they want to post, and people read when
31
they want to read. The most difﬁcult time is synchronous time. Tech-
32S
nologies that enable asynchronous communication, such as e-mail,
33R
increase the opportunity for communication. Blogs allow for public
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discourse without the public ever needing to gather in a single public
1
place.
2
But beyond architecture, blogs also have solved the problem of
3
norms. There’s no norm (yet) in blog space not to talk about politics.
4
Indeed, the space is ﬁlled with political speech, on both the right and
5
the left. Some of the most popular sites are conservative or libertarian,
6
but there are many of all political stripes. And even blogs that are not
7
political cover political issues when the occasion merits.
8
The signiﬁcance of these blogs is tiny now, though not so tiny. The
9
name Howard Dean may well have faded from the 2004 presidential
10
race but for blogs. Yet even if the number of readers is small, the read-
11
ing is having an effect.
12
One direct effect is on stories that had a different life cycle in the
13
mainstream media. The Trent Lott affair is an example. When Lott
14
“misspoke” at a party for Senator Strom Thurmond, essentially prais-
15
ing Thurmond’s segregationist policies, he calculated correctly that this
16
story would disappear from the mainstream press within forty-eight
17
hours. It did. But he didn’t calculate its life cycle in blog space. The
18
bloggers kept researching the story. Over time, more and more in-
19
stances of the same “misspeaking” emerged. Finally, the story broke
20
back into the mainstream press. In the end, Lott was forced to resign
21
as senate majority leader.18
22
This different cycle is possible because the same commercial pres-
23
sures don’t exist with blogs as with other ventures. Television and
24
newspapers are commercial entities. They must work to keep attention.
25
If they lose readers, they lose revenue. Like sharks, they must move on.
26
But bloggers don’t have a similar constraint. They can obsess, they
27
can focus, they can get serious. If a particular blogger writes a particu-
28
larly interesting story, more and more people link to that story. And as
29
the number of links to a particular story increases, it rises in the ranks
30
of stories. People read what is popular; what is popular has been se-
31
lected by a very democratic process of peer-generated rankings.
S32
There’s a second way, as well, in which blogs have a different cycle
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1
from the mainstream press. As Dave Winer, one of the fathers of this
2
movement and a software author for many decades, told me, another
3
difference is the absence of a ﬁnancial “conﬂict of interest.” “I think you
4
have to take the conﬂict of interest” out of journalism, Winer told me.
5
“An amateur journalist simply doesn’t have a conﬂict of interest, or the
6
conﬂict of interest is so easily disclosed that you know you can sort of
7
get it out of the way.”
8
These conﬂicts become more important as media becomes more
9
concentrated (more on this below). A concentrated media can hide
10
more from the public than an unconcentrated media can—as CNN
11
admitted it did after the Iraq war because it was afraid of the conse-
12
quences to its own employees.19 It also needs to sustain a more coher-
13
ent account. (In the middle of the Iraq war, I read a post on the
14
Internet from someone who was at that time listening to a satellite up-
15
link with a reporter in Iraq. The New York headquarters was telling the
16
reporter over and over that her account of the war was too bleak: She
17
needed to offer a more optimistic story. When she told New York that
18
wasn’t warranted, they told her that they were writing “the story.”)
19
Blog space gives amateurs a way to enter the debate—“amateur” not
20
in the sense of inexperienced, but in the sense of an Olympic athlete,
21
meaning not paid by anyone to give their reports. It allows for a much
22
broader range of input into a story, as reporting on the Columbia dis-
23
aster revealed, when hundreds from across the southwest United States
24
turned to the Internet to retell what they had seen.20 And it drives
25
readers to read across the range of accounts and “triangulate,” as Winer
26
puts it, the truth. Blogs, Winer says, are “communicating directly with
27
our constituency, and the middle man is out of it”—with all the bene-
28
ﬁts, and costs, that might entail.
29
Winer is optimistic about the future of journalism infected with
30
blogs. “It’s going to become an essential skill,” Winer predicts, for pub-
31
lic ﬁgures and increasingly for private ﬁgures as well. It’s not clear that
32S
“journalism” is happy about this—some journalists have been told to
33R
curtail their blogging.21 But it is clear that we are still in transition. “A
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lot of what we are doing now is warm-up exercises,” Winer told me.
1
There is a lot that must mature before this space has its mature effect.
2
And as the inclusion of content in this space is the least infringing use
3
of the Internet (meaning infringing on copyright), Winer said, “we will
4
be the last thing that gets shut down.”
5
This speech affects democracy. Winer thinks that happens because
6
“you don’t have to work for somebody who controls, [for] a gate-
7
keeper.” That is true. But it affects democracy in another way as well.
8
As more and more citizens express what they think, and defend it in
9
writing, that will change the way people understand public issues. It is
10
easy to be wrong and misguided in your head. It is harder when the
11
product of your mind can be criticized by others. Of course, it is a rare
12
human who admits that he has been persuaded that he is wrong. But it
13
is even rarer for a human to ignore when he has been proven wrong.
14
The writing of ideas, arguments, and criticism improves democracy.
15
Today there are probably a couple of million blogs where such writing
16
happens. When there are ten million, there will be something extraor-
17
dinary to report.
18
19
20
John Seely Brown is the chief scientist of the Xerox Corporation.
21
His work, as his Web site describes it, is “human learning and . . . the
22
creation of knowledge ecologies for creating . . . innovation.”
23
Brown thus looks at these technologies of digital creativity a bit dif-
24
ferently from the perspectives I’ve sketched so far. I’m sure he would be
25
excited about any technology that might improve democracy. But his
26
real excitement comes from how these technologies affect learning.
27
As Brown believes, we learn by tinkering. When “a lot of us grew
28
up,” he explains, that tinkering was done “on motorcycle engines, lawn-
29
mower engines, automobiles, radios, and so on.” But digital technolo-
30
gies enable a different kind of tinkering—with abstract ideas though
31
in concrete form. The kids at Just Think! not only think about how
S32
a commercial portrays a politician; using digital technology, they can
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1
take the commercial apart and manipulate it, tinker with it to see how
2
it does what it does. Digital technologies launch a kind of bricolage, or
3
“free collage,” as Brown calls it. Many get to add to or transform the
4
tinkering of many others.
5
The best large-scale example of this kind of tinkering so far is free
6
software or open-source software (FS/OSS). FS/OSS is software whose
7
source code is shared. Anyone can download the technology that makes
8
a FS/OSS program run. And anyone eager to learn how a particular bit
9
of FS/OSS technology works can tinker with the code.
10
This opportunity creates a “completely new kind of learning plat-
11
form,” as Brown describes. “As soon as you start doing that, you . . .
12
unleash a free collage on the community, so that other people can start
13
looking at your code, tinkering with it, trying it out, seeing if they can
14
improve it.” Each effort is a kind of apprenticeship. “Open source be-
15
comes a major apprenticeship platform.”
16
In this process, “the concrete things you tinker with are abstract.
17
They are code.” Kids are “shifting to the ability to tinker in the ab-
18
stract, and this tinkering is no longer an isolated activity that you’re do-
19
ing in your garage. You are tinkering with a community platform. . . .
20
You are tinkering with other people’s stuff. The more you tinker the
21
more you improve.” The more you improve, the more you learn.
22
This same thing happens with content, too. And it happens in the
23
same collaborative way when that content is part of the Web. As
24
Brown puts it, “the Web [is] the ﬁrst medium that truly honors multi-
25
ple forms of intelligence.” Earlier technologies, such as the typewriter
26
or word processors, helped amplify text. But the Web ampliﬁes much
27
more than text. “The Web . . . says if you are musical, if you are artis-
28
tic, if you are visual, if you are interested in ﬁlm . . . [then] there is a lot
29
you can start to do on this medium. [It] can now amplify and honor
30
these multiple forms of intelligence.”
31
Brown is talking about what Elizabeth Daley, Stephanie Barish,
32S
and Just Think! teach: that this tinkering with culture teaches as well
33R
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as creates. It develops talents differently, and it builds a different kind
1
of recognition.
2
Yet the freedom to tinker with these objects is not guaranteed. In-
3
deed, as we’ll see through the course of this book, that freedom is in-
4
creasingly highly contested. While there’s no doubt that your father
5
had the right to tinker with the car engine, there’s great doubt that your
6
child will have the right to tinker with the images she ﬁnds all around.
7
The law and, increasingly, technology interfere with a freedom that
8
technology, and curiosity, would otherwise ensure.
9
These restrictions have become the focus of researchers and schol-
10
ars. Professor Ed Felten of Princeton (whom we’ll see more of in chap-
11
ter 10) has developed a powerful argument in favor of the “right to
12
tinker” as it applies to computer science and to knowledge in general.22
13
But Brown’s concern is earlier, or younger, or more fundamental. It is
14
about the learning that kids can do, or can’t do, because of the law.
15
“This is where education in the twenty-ﬁrst century is going,”
16
Brown explains. We need to “understand how kids who grow up digi-
17
tal think and want to learn.”
18
“Yet,” as Brown continued, and as the balance of this book will
19
evince, “we are building a legal system that completely suppresses the
20
natural tendencies of today’s digital kids. . . . We’re building an archi-
21
tecture that unleashes 60 percent of the brain [and] a legal system that
22
closes down that part of the brain.”
23
We’re building a technology that takes the magic of Kodak, mixes
24
moving images and sound, and adds a space for commentary and an
25
opportunity to spread that creativity everywhere. But we’re building
26
the law to close down that technology.
27
“No way to run a culture,” as Brewster Kahle, whom we’ll meet in
28
chapter 9, quipped to me in a rare moment of despondence.
29
30
31
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
CHAPTER THREE: Catalogs
16
17Co
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled
18
as a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
19
His major at RPI was information technology. Though he is not a pro-
20
grammer, in October Jesse decided to begin to tinker with search en-
21
gine technology that was available on the RPI network.
22
RPI is one of America’s foremost technological research institu-
23
tions. It offers degrees in ﬁelds ranging from architecture and engi-
24
neering to information sciences. More than 65 percent of its ﬁve
25
thousand undergraduates ﬁnished in the top 10 percent of their high
26
school class. The school is thus a perfect mix of talent and experience
27
to imagine and then build, a generation for the network age.
28
RPI’s computer network links students, faculty, and administration
29
to one another. It also links RPI to the Internet. Not everything avail-
30
able on the RPI network is available on the Internet. But the network
31
is designed to enable students to get access to the Internet, as well as
32S
more intimate access to other members of the RPI community.
33R
Search engines are a measure of a network’s intimacy. Google
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brought the Internet much closer to all of us by fantastically improving
1
the quality of search on the network. Specialty search engines can do
2
this even better. The idea of “intranet” search engines, search engines
3
that search within the network of a particular institution, is to provide
4
users of that institution with better access to material from that insti-
5
tution. Businesses do this all the time, enabling employees to have ac-
6
cess to material that people outside the business can’t get. Universities
7
do it as well.
8
These engines are enabled by the network technology itself. Mi-
9
crosoft, for example, has a network ﬁle system that makes it very easy
10
for search engines tuned to that network to query the system for infor-
11
mation about the publicly (within that network) available content.
12
Jesse’s search engine was built to take advantage of this technology. It
13
used Microsoft’s network ﬁle system to build an index of all the ﬁles
14
available within the RPI network.
15
Jesse’s wasn’t the ﬁrst search engine built for the RPI network. In-
16
deed, his engine was a simple modiﬁcation of engines that others had
17
built. His single most important improvement over those engines was
18
to ﬁx a bug within the Microsoft ﬁle-sharing system that could cause a
19
user’s computer to crash. With the engines that existed before, if you
20
tried to access a ﬁle through a Windows browser that was on a com-
21
puter that was off-line, your computer could crash. Jesse modiﬁed the
22
system a bit to ﬁx that problem, by adding a button that a user could
23
click to see if the machine holding the ﬁle was still on-line.
24
Jesse’s engine went on-line in late October. Over the following six
25
months, he continued to tweak it to improve its functionality. By
26
March, the system was functioning quite well. Jesse had more than one
27
million ﬁles in his directory, including every type of content that might
28
be on users’ computers.
29
Thus the index his search engine produced included pictures,
30
which students could use to put on their own Web sites; copies of notes
31
or research; copies of information pamphlets; movie clips that stu-
S32
dents might have created; university brochures—basically anything that
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users of the RPI network made available in a public folder of their
2
computer.
3
But the index also included music ﬁles. In fact, one quarter of the
4
ﬁles that Jesse’s search engine listed were music ﬁles. But that means,
5
of course, that three quarters were not, and—so that this point is ab-
6
solutely clear—Jesse did nothing to induce people to put music ﬁles in
7
their public folders. He did nothing to target the search engine to these
8
ﬁles. He was a kid tinkering with a Google-like technology at a uni-
9
versity where he was studying information science, and hence, tinker-
10
ing was the aim. Unlike Google, or Microsoft, for that matter, he made
11
no money from this tinkering; he was not connected to any business
12
that would make any money from this experiment. He was a kid tin-
13
kering with technology in an environment where tinkering with tech-
14
nology was precisely what he was supposed to do.
15
On April 3, 2003, Jesse was contacted by the dean of students at
16
RPI. The dean informed Jesse that the Recording Industry Association
17
of America, the RIAA, would be ﬁling a lawsuit against him and three
18
other students whom he didn’t even know, two of them at other uni-
19
versities. A few hours later, Jesse was served with papers from the suit.
20
As he read these papers and watched the news reports about them, he
21
was increasingly astonished.
22
“It was absurd,” he told me. “I don’t think I did anything wrong. . . .
23
I don’t think there’s anything wrong with the search engine that I ran
24
or . . . what I had done to it. I mean, I hadn’t modiﬁed it in any way
25
that promoted or enhanced the work of pirates. I just modiﬁed the
26
search engine in a way that would make it easier to use”—again, a
27
search engine, which Jesse had not himself built, using the Windows ﬁle-
28
sharing system, which Jesse had not himself built, to enable members
29
of the RPI community to get access to content, which Jesse had not
30
himself created or posted, and the vast majority of which had nothing
31
to do with music.
32S
But the RIAA branded Jesse a pirate. They claimed he operated a
33R
network and had therefore “willfully” violated copyright laws. They de-
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manded that he pay them the damages for his wrong. For cases of
1
“willful infringement,” the Copyright Act speciﬁes something lawyers
2
call “statutory damages.” These damages permit a copyright owner to
3
claim $150,000 per infringement. As the RIAA alleged more than one
4
hundred speciﬁc copyright infringements, they therefore demanded
5
that Jesse pay them at least $15,000,000.
6
Similar lawsuits were brought against three other students: one
7
other student at RPI, one at Michigan Technical University, and one at
8
Princeton. Their situations were similar to Jesse’s. Though each case
9
was different in detail, the bottom line in each was exactly the same:
10
huge demands for “damages” that the RIAA claimed it was entitled to.
11
If you added up the claims, these four lawsuits were asking courts in
12
the United States to award the plaintiffs close to $100 billion—six
13
times the total proﬁt of the ﬁlm industry in 2001.1
14
Jesse called his parents. They were supportive but a bit frightened.
15
An uncle was a lawyer. He began negotiations with the RIAA. They
16
demanded to know how much money Jesse had. Jesse had saved
17
$12,000 from summer jobs and other employment. They demanded
18
$12,000 to dismiss the case.
19
The RIAA wanted Jesse to admit to doing something wrong. He
20
refused. They wanted him to agree to an injunction that would essen-
21
tially make it impossible for him to work in many ﬁelds of technology
22
for the rest of his life. He refused. They made him understand that this
23
process of being sued was not going to be pleasant. (As Jesse’s father
24
recounted to me, the chief lawyer on the case, Matt Oppenheimer, told
25
Jesse, “You don’t want to pay another visit to a dentist like me.”) And
26
throughout, the RIAA insisted it would not settle the case until it took
27
every penny Jesse had saved.
28
Jesse’s family was outraged at these claims. They wanted to ﬁght.
29
But Jesse’s uncle worked to educate the family about the nature of the
30
American legal system. Jesse could ﬁght the RIAA. He might even
31
win. But the cost of ﬁghting a lawsuit like this, Jesse was told, would be
S32
at least $250,000. If he won, he would not recover that money. If he
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1
won, he would have a piece of paper saying he had won, and a piece of
2
paper saying he and his family were bankrupt.
3
So Jesse faced a maﬁa-like choice: $250,000 and a chance at win-
4
ning, or $12,000 and a settlement.
5
The recording industry insists this is a matter of law and morality.
6
Let’s put the law aside for a moment and think about the morality.
7
Where is the morality in a lawsuit like this? What is the virtue in
8
scapegoatism? The RIAA is an extraordinarily powerful lobby. The
9
president of the RIAA is reported to make more than $1 million a year.
10
Artists, on the other hand, are not well paid. The average recording
11
artist makes $45,900.2 There are plenty of ways for the RIAA to affect
12
and direct policy. So where is the morality in taking money from a stu-
13
dent for running a search engine?3
14
On June 23, Jesse wired his savings to the lawyer working for the
15
RIAA. The case against him was then dismissed. And with this, this
16
kid who had tinkered a computer into a $15 million lawsuit became an
17
activist:
18
19
I was deﬁnitely not an activist [before]. I never really meant to be
20
an activist. . . . [But] I’ve been pushed into this. In no way did I
21
ever foresee anything like this, but I think it’s just completely ab-
22
surd what the RIAA has done.
23
24
Jesse’s parents betray a certain pride in their reluctant activist. As
25
his father told me, Jesse “considers himself very conservative, and so do
26
I. . . . He’s not a tree hugger. . . . I think it’s bizarre that they would
27
pick on him. But he wants to let people know that they’re sending the
28
wrong message. And he wants to correct the record.”
29
30
31
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
CHAPTER FOUR: “Pirates”
15
16
If “piracy” means using the creative property of others without
Co17
their permission—if “if value, then right” is true—then the history of
18
the content industry is a history of piracy. Every important sector of
19
“big media” today—ﬁlm, records, radio, and cable TV—was born of a
20
kind of piracy so deﬁned. The consistent story is how last generation’s
21
pirates join this generation’s country club—until now.
22
23
24
Film
25
26
The ﬁlm industry of Hollywood was built by ﬂeeing pirates.1 Creators
27
and directors migrated from the East Coast to California in the early
28
twentieth century in part to escape controls that patents granted the
29
inventor of ﬁlmmaking, Thomas Edison. These controls were exer-
30
cised through a monopoly “trust,” the Motion Pictures Patents Com-
31
pany, and were based on Thomas Edison’s creative property—patents.
S32
Edison formed the MPPC to exercise the rights this creative property
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1
gave him, and the MPPC was serious about the control it demanded.
2
As one commentator tells one part of the story,
3
4
A January 1909 deadline was set for all companies to comply with
5
the license. By February, unlicensed outlaws, who referred to
6
themselves as independents protested the trust and carried on
7
business without submitting to the Edison monopoly. In the
8
summer of 1909 the independent movement was in full-swing,
9
with producers and theater owners using illegal equipment and
10
imported ﬁlm stock to create their own underground market.
11
With the country experiencing a tremendous expansion in the
12
number of nickelodeons, the Patents Company reacted to the in-
13
dependent movement by forming a strong-arm subsidiary known
14
as the General Film Company to block the entry of non-licensed
15
independents. With coercive tactics that have become legendary,
16
General Film conﬁscated unlicensed equipment, discontinued
17
product supply to theaters which showed unlicensed ﬁlms, and
18
effectively monopolized distribution with the acquisition of all
19
U.S. ﬁlm exchanges, except for the one owned by the independent
20
William Fox who deﬁed the Trust even after his license was re-
21
voked.2
22
23
The Napsters of those days, the “independents,” were companies like
24
Fox. And no less than today, these independents were vigorously re-
25
sisted. “Shooting was disrupted by machinery stolen, and ‘accidents’
26
resulting in loss of negatives, equipment, buildings and sometimes life
27
and limb frequently occurred.”3 That led the independents to ﬂee the
28
East Coast. California was remote enough from Edison’s reach that ﬁlm-
29
makers there could pirate his inventions without fear of the law. And the
30
leaders of Hollywood ﬁlmmaking, Fox most prominently, did just that.
31
Of course, California grew quickly, and the effective enforcement
32S
of federal law eventually spread west. But because patents grant the
33R
patent holder a truly “limited” monopoly (just seventeen years at that
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time), by the time enough federal marshals appeared, the patents had
1
expired. A new industry had been born, in part from the piracy of Edi-
2
son’s creative property.
3
4
5
Recorded Music
6
7
The record industry was born of another kind of piracy, though to see
8
how requires a bit of detail about the way the law regulates music.
9
At the time that Edison and Henri Fourneaux invented machines
10
for reproducing music (Edison the phonograph, Fourneaux the player
11
piano), the law gave composers the exclusive right to control copies of
12
their music and the exclusive right to control public performances of
13
their music. In other words, in 1900, if I wanted a copy of Phil Russel’s
14
1899 hit “Happy Mose,” the law said I would have to pay for the right
15
to get a copy of the musical score, and I would also have to pay for the
16
right to perform it publicly.
17
But what if I wanted to record “Happy Mose,” using Edison’s
18
phonograph or Fourneaux’s player piano? Here the law stumbled. It was
19
clear enough that I would have to buy any copy of the musical score that
20
I performed in making this recording. And it was clear enough that I
21
would have to pay for any public performance of the work I was record-
22
ing. But it wasn’t totally clear that I would have to pay for a “public per-
23
formance” if I recorded the song in my own house (even today, you don’t
24
owe the Beatles anything if you sing their songs in the shower), or if I
25
recorded the song from memory (copies in your brain are not—yet—
26
regulated by copyright law). So if I simply sang the song into a record-
27
ing device in the privacy of my own home, it wasn’t clear that I owed the
28
composer anything. And more importantly, it wasn’t clear whether I
29
owed the composer anything if I then made copies of those recordings.
30
Because of this gap in the law, then, I could effectively pirate someone
31
else’s song without paying its composer anything.
S32
The composers (and publishers) were none too happy about
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this capacity to pirate. As South Dakota senator Alfred Kittredge
2
put it,
3
4
Imagine the injustice of the thing. A composer writes a song or an
5
opera. A publisher buys at great expense the rights to the same and
6
copyrights it. Along come the phonographic companies and compa-
7
nies who cut music rolls and deliberately steal the work of the brain
8
of the composer and publisher without any regard for [their] rights.4
9
10
The innovators who developed the technology to record other
11
people’s works were “sponging upon the toil, the work, the talent, and
12
genius of American composers,”5 and the “music publishing industry”
13
was thereby “at the complete mercy of this one pirate.”6 As John Philip
14
Sousa put it, in as direct a way as possible, “When they make money
15
out of my pieces, I want a share of it.”7
16
These arguments have familiar echoes in the wars of our day. So,
17
too, do the arguments on the other side. The innovators who devel-
18
oped the player piano argued that “it is perfectly demonstrable that the
19
introduction of automatic music players has not deprived any com-
20
poser of anything he had before their introduction.” Rather, the ma-
21
chines increased the sales of sheet music.8 In any case, the innovators
22
argued, the job of Congress was “to consider ﬁrst the interest of [the
23
public], whom they represent, and whose servants they are.” “All talk
24
about ‘theft,’” the general counsel of the American Graphophone
25
Company wrote, “is the merest claptrap, for there exists no property in
26
ideas musical, literary or artistic, except as deﬁned by statute.”9
27
The law soon resolved this battle in favor of the composer and
28
the recording artist. Congress amended the law to make sure that
29
composers would be paid for the “mechanical reproductions” of their
30
music. But rather than simply granting the composer complete con-
31
trol over the right to make mechanical reproductions, Congress gave
32S
recording artists a right to record the music, at a price set by Congress,
33R
once the composer allowed it to be recorded once. This is the part of
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copyright law that makes cover songs possible. Once a composer au-
1
thorizes a recording of his song, others are free to record the same
2
song, so long as they pay the original composer a fee set by the law.
3
American law ordinarily calls this a “compulsory license,” but I will
4
refer to it as a “statutory license.” A statutory license is a license whose
5
key terms are set by law. After Congress’s amendment of the Copyright
6
Act in 1909, record companies were free to distribute copies of record-
7
ings so long as they paid the composer (or copyright holder) the fee set
8
by the statute.
9
This is an exception within the law of copyright. When John Grisham
10
writes a novel, a publisher is free to publish that novel only if Grisham
11
gives the publisher permission. Grisham, in turn, is free to charge what-
12
ever he wants for that permission. The price to publish Grisham is
13
thus set by Grisham, and copyright law ordinarily says you have no
14
permission to use Grisham’s work except with permission of Grisham.
15
But the law governing recordings gives recording artists less. And
16
thus, in effect, the law subsidizes the recording industry through a kind
17
of piracy—by giving recording artists a weaker right than it otherwise
18
gives creative authors. The Beatles have less control over their creative
19
work than Grisham does. And the beneﬁciaries of this less control are
20
the recording industry and the public. The recording industry gets
21
something of value for less than it otherwise would pay; the public gets
22
access to a much wider range of musical creativity. Indeed, Congress
23
was quite explicit about its reasons for granting this right. Its fear was
24
the monopoly power of rights holders, and that that power would sti-
25
ﬂe follow-on creativity.10
26
While the recording industry has been quite coy about this recently,
27
historically it has been quite a supporter of the statutory license for
28
records. As a 1967 report from the House Committee on the Judiciary
29
relates,
30
31
the record producers argued vigorously that the compulsory
S32
license system must be retained. They asserted that the record in-
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1
dustry is a half-billion-dollar business of great economic impor-
2
tance in the United States and throughout the world; records
3
today are the principal means of disseminating music, and this
4
creates special problems, since performers need unhampered ac-
5
cess to musical material on nondiscriminatory terms. Historically,
6
the record producers pointed out, there were no recording rights
7
before 1909 and the 1909 statute adopted the compulsory license
8
as a deliberate anti-monopoly condition on the grant of these
9
rights. They argue that the result has been an outpouring of
10
recorded music, with the public being given lower prices, im-
11
proved quality, and a greater choice.11
12
13
By limiting the rights musicians have, by partially pirating their cre-
14
ative work, the record producers, and the public, beneﬁt.
15
16
17
Radio
18
19
Radio was also born of piracy.
20
When a radio station plays a record on the air, that constitutes a
21
“public performance” of the composer’s work.12 As I described above,
22
the law gives the composer (or copyright holder) an exclusive right to
23
public performances of his work. The radio station thus owes the com-
24
poser money for that performance.
25
But when the radio station plays a record, it is not only performing
26
a copy of the composer’s work. The radio station is also performing a
27
copy of the recording artist’s work. It’s one thing to have “Happy Birth-
28
day” sung on the radio by the local children’s choir; it’s quite another to
29
have it sung by the Rolling Stones or Lyle Lovett. The recording artist
30
is adding to the value of the composition performed on the radio sta-
31
tion. And if the law were perfectly consistent, the radio station would
32S
have to pay the recording artist for his work, just as it pays the com-
33R
poser of the music for his work.
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But it doesn’t. Under the law governing radio performances, the ra-
1
dio station does not have to pay the recording artist. The radio station
2
need only pay the composer. The radio station thus gets a bit of some-
3
thing for nothing. It gets to perform the recording artist’s work for
4
free, even if it must pay the composer something for the privilege of
5
playing the song.
6
This difference can be huge. Imagine you compose a piece of mu-
7
sic. Imagine it is your ﬁrst. You own the exclusive right to authorize
8
public performances of that music. So if Madonna wants to sing your
9
song in public, she has to get your permission.
10
Imagine she does sing your song, and imagine she likes it a lot. She
11
then decides to make a recording of your song, and it becomes a top
12
hit. Under our law, every time a radio station plays your song, you get
13
some money. But Madonna gets nothing, save the indirect effect on
14
the sale of her CDs. The public performance of her recording is not a
15
“protected” right. The radio station thus gets to pirate the value of
16
Madonna’s work without paying her anything.
17
No doubt, one might argue that, on balance, the recording artists
18
beneﬁt. On average, the promotion they get is worth more than the
19
performance rights they give up. Maybe. But even if so, the law ordi-
20
narily gives the creator the right to make this choice. By making the
21
choice for him or her, the law gives the radio station the right to take
22
something for nothing.
23
24
25
Cable TV
26
27
Cable TV was also born of a kind of piracy.
28
When cable entrepreneurs ﬁrst started wiring communities with
29
cable television in 1948, most refused to pay broadcasters for the con-
30
tent that they echoed to their customers. Even when the cable compa-
31
nies started selling access to television broadcasts, they refused to pay
S32
for what they sold. Cable companies were thus Napsterizing broad-
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1
casters’ content, but more egregiously than anything Napster ever did—
2
Napster never charged for the content it enabled others to give away.
3
Broadcasters and copyright owners were quick to attack this theft.
4
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
5
“unfair and potentially destructive competition.”13 There may have
6
been a “public interest” in spreading the reach of cable TV, but as Doug-
7
las Anello, general counsel to the National Association of Broadcast-
8
ers, asked Senator Quentin Burdick during testimony, “Does public
9
interest dictate that you use somebody else’s property?”14 As another
10
broadcaster put it,
11
12
The extraordinary thing about the CATV business is that it is the
13
only business I know of where the product that is being sold is not
14
paid for.15
15
16
Again, the demand of the copyright holders seemed reasonable
17
enough:
18
19
All we are asking for is a very simple thing, that people who now
20
take our property for nothing pay for it. We are trying to stop
21
piracy and I don’t think there is any lesser word to describe it. I
22
think there are harsher words which would ﬁt it.16
23
24
These were “free-ride[rs],” Screen Actor’s Guild president Charl-
25
ton Heston said, who were “depriving actors of compensation.”17
26
But again, there was another side to the debate. As Assistant At-
27
torney General Edwin Zimmerman put it,
28
29
Our point here is that unlike the problem of whether you have
30
any copyright protection at all, the problem here is whether copy-
31
right holders who are already compensated, who already have a
32S
monopoly, should be permitted to extend that monopoly. . . . The
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question here is how much compensation they should have and
1
how far back they should carry their right to compensation.18
2
3
Copyright owners took the cable companies to court. Twice the
4
Supreme Court held that the cable companies owed the copyright
5
owners nothing.
6
It took Congress almost thirty years before it resolved the question
7
of whether cable companies had to pay for the content they “pirated.”
8
In the end, Congress resolved this question in the same way that it re-
9
solved the question about record players and player pianos. Yes, cable
10
companies would have to pay for the content that they broadcast; but
11
the price they would have to pay was not set by the copyright owner.
12
The price was set by law, so that the broadcasters couldn’t exercise veto
13
power over the emerging technologies of cable. Cable companies thus
14
built their empire in part upon a “piracy” of the value created by broad-
15
casters’ content.
16
17
18
These separate stories sing a common theme. If “piracy”
19
means using value from someone else’s creative property without per-
20
mission from that creator—as it is increasingly described today19—
21
then every industry affected by copyright today is the product and
22
beneﬁciary of a certain kind of piracy. Film, records, radio, cable
23
TV. . . . The list is long and could well be expanded. Every generation
24
welcomes the pirates from the last. Every generation—until now.
25
26
27
28
29
30
31
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
CHAPTER FIVE: “Piracy”
16
17Co
There is piracy of copyrighted material. Lots of it. This piracy
18
comes in many forms. The most signiﬁcant is commercial piracy, the
19
unauthorized taking of other people’s content within a commercial
20
context. Despite the many justiﬁcations that are offered in its defense,
21
this taking is wrong. No one should condone it, and the law should
22
stop it.
23
But as well as copy-shop piracy, there is another kind of “taking”
24
that is more directly related to the Internet. That taking, too, seems
25
wrong to many, and it is wrong much of the time. Before we paint this
26
taking “piracy,” however, we should understand its nature a bit more.
27
For the harm of this taking is signiﬁcantly more ambiguous than out-
28
right copying, and the law should account for that ambiguity, as it has
29
so often done in the past.
30
31
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Piracy I
1
2
All across the world, but especially in Asia and Eastern Europe, there
3
are businesses that do nothing but take others people’s copyrighted
4
content, copy it, and sell it—all without the permission of a copyright
5
owner. The recording industry estimates that it loses about $4.6 billion
6
every year to physical piracy1 (that works out to one in three CDs sold
7
worldwide). The MPAA estimates that it loses $3 billion annually
8
worldwide to piracy.
9
This is piracy plain and simple. Nothing in the argument of this
10
book, nor in the argument that most people make when talking about
11
the subject of this book, should draw into doubt this simple point:
12
This piracy is wrong.
13
Which is not to say that excuses and justiﬁcations couldn’t be made
14
for it. We could, for example, remind ourselves that for the ﬁrst one
15
hundred years of the American Republic, America did not honor for-
16
eign copyrights. We were born, in this sense, a pirate nation. It might
17
therefore seem hypocritical for us to insist so strongly that other devel-
18
oping nations treat as wrong what we, for the ﬁrst hundred years of our
19
existence, treated as right.
20
That excuse isn’t terribly strong. Technically, our law did not ban
21
the taking of foreign works. It explicitly limited itself to American
22
works. Thus the American publishers who published foreign works
23
without the permission of foreign authors were not violating any rule.
24
The copy shops in Asia, by contrast, are violating Asian law. Asian law
25
does protect foreign copyrights, and the actions of the copy shops vio-
26
late that law. So the wrong of piracy that they engage in is not just a
27
moral wrong, but a legal wrong, and not just an internationally legal
28
wrong, but a locally legal wrong as well.
29
True, these local rules have, in effect, been imposed upon these
30
countries. No country can be part of the world economy and choose
31
not to protect copyright internationally. We may have been born a pi-
S32
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1
rate nation, but we will not allow any other nation to have a similar
2
childhood.
3
If a country is to be treated as a sovereign, however, then its laws are
4
its laws regardless of their source. The international law under which
5
these nations live gives them some opportunities to escape the burden
6
of intellectual property law.2 In my view, more developing nations
7
should take advantage of that opportunity, but when they don’t, then
8
their laws should be respected. And under the laws of these nations,
9
this piracy is wrong.
10
Alternatively, we could try to excuse this piracy by noting that in
11
any case, it does no harm to the industry. The Chinese who get access
12
to American CDs at 50 cents a copy are not people who would have
13
bought those American CDs at $15 a copy. So no one really has any
14
less money than they otherwise would have had.3
15
This is often true (though I have friends who have purchased many
16
thousands of pirated DVDs who certainly have enough money to pay
17
for the content they have taken), and it does mitigate to some degree
18
the harm caused by such taking. Extremists in this debate love to say,
19
“You wouldn’t go into Barnes & Noble and take a book off of the shelf
20
without paying; why should it be any different with on-line music?”
21
The difference is, of course, that when you take a book from Barnes &
22
Noble, it has one less book to sell. By contrast, when you take an MP3
23
from a computer network, there is not one less CD that can be sold.
24
The physics of piracy of the intangible are different from the physics of
25
piracy of the tangible.
26
This argument is still very weak. However, although copyright is a
27
property right of a very special sort, it is a property right. Like all prop-
28
erty rights, the copyright gives the owner the right to decide the terms
29
under which content is shared. If the copyright owner doesn’t want to
30
sell, she doesn’t have to. There are exceptions: important statutory li-
31
censes that apply to copyrighted content regardless of the wish of the
32S
copyright owner. Those licenses give people the right to “take” copy-
33R
righted content whether or not the copyright owner wants to sell. But
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where the law does not give people the right to take content, it is
1
wrong to take that content even if the wrong does no harm. If we have
2
a property system, and that system is properly balanced to the technol-
3
ogy of a time, then it is wrong to take property without the permission
4
of a property owner. That is exactly what “property” means.
5
Finally, we could try to excuse this piracy with the argument that
6
the piracy actually helps the copyright owner. When the Chinese
7
“steal” Windows, that makes the Chinese dependent on Microsoft.
8
Microsoft loses the value of the software that was taken. But it gains
9
users who are used to life in the Microsoft world. Over time, as the na-
10
tion grows more wealthy, more and more people will buy software
11
rather than steal it. And hence over time, because that buying will ben-
12
eﬁt Microsoft, Microsoft beneﬁts from the piracy. If instead of pirating
13
Microsoft Windows, the Chinese used the free GNU/Linux operating
14
system, then these Chinese users would not eventually be buying Mi-
15
crosoft. Without piracy, then, Microsoft would lose.
16
This argument, too, is somewhat true. The addiction strategy is a
17
good one. Many businesses practice it. Some thrive because of it. Law
18
students, for example, are given free access to the two largest legal
19
databases. The companies marketing both hope the students will be-
20
come so used to their service that they will want to use it and not the
21
other when they become lawyers (and must pay high subscription fees).
22
Still, the argument is not terribly persuasive. We don’t give the al-
23
coholic a defense when he steals his ﬁrst beer, merely because that will
24
make it more likely that he will buy the next three. Instead, we ordi-
25
narily allow businesses to decide for themselves when it is best to give
26
their product away. If Microsoft fears the competition of GNU/Linux,
27
then Microsoft can give its product away, as it did, for example, with
28
Internet Explorer to ﬁght Netscape. A property right means giv-
29
ing the property owner the right to say who gets access to what—at
30
least ordinarily. And if the law properly balances the rights of the copy-
31
right owner with the rights of access, then violating the law is still
S32
wrong.
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1
Thus, while I understand the pull of these justiﬁcations for piracy,
2
and I certainly see the motivation, in my view, in the end, these efforts
3
at justifying commercial piracy simply don’t cut it. This kind of piracy
4
is rampant and just plain wrong. It doesn’t transform the content it
5
steals; it doesn’t transform the market it competes in. It merely gives
6
someone access to something that the law says he should not have.
7
Nothing has changed to draw that law into doubt. This form of piracy
8
is ﬂat out wrong.
9
But as the examples from the four chapters that introduced this
10
part suggest, even if some piracy is plainly wrong, not all “piracy” is. Or
11
at least, not all “piracy” is wrong if that term is understood in the way
12
it is increasingly used today. Many kinds of “piracy” are useful and pro-
13
ductive, to produce either new content or new ways of doing business.
14
Neither our tradition nor any tradition has ever banned all “piracy” in
15
that sense of the term.
16
This doesn’t mean that there are no questions raised by the latest
17
piracy concern, peer-to-peer ﬁle sharing. But it does mean that we
18
need to understand the harm in peer-to-peer sharing a bit more before
19
we condemn it to the gallows with the charge of piracy.
20
For (1) like the original Hollywood, p2p sharing escapes an overly
21
controlling industry; and (2) like the original recording industry, it
22
simply exploits a new way to distribute content; but (3) unlike cable
23
TV, no one is selling the content that is shared on p2p services.
24
These differences distinguish p2p sharing from true piracy. They
25
should push us to ﬁnd a way to protect artists while enabling this shar-
26
ing to survive.
27
28
29
Piracy II
30
31
The key to the “piracy” that the law aims to quash is a use that “rob[s]
32S
the author of [his] proﬁt.”4 This means we must determine whether
33R
and how much p2p sharing harms before we know how strongly the
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law should seek to either prevent it or ﬁnd an alternative to assure the
1
author of his proﬁt.
2
Peer-to-peer sharing was made famous by Napster. But the inventors
3
of the Napster technology had not made any major technological inno-
4
vations. Like every great advance in innovation on the Internet (and, ar-
5
guably, off the Internet as well5), Shawn Fanning and crew had simply
6
put together components that had been developed independently.
7
The result was spontaneous combustion. Launched in July 1999,
8
Napster amassed over 10 million users within nine months. After
9
eighteen months, there were close to 80 million registered users of the
10
system.6 Courts quickly shut Napster down, but other services emerged
11
to take its place. (Kazaa is currently the most popular p2p service. It
12
boasts over 100 million members.) These services’ systems are different
13
architecturally, though not very different in function: Each enables
14
users to make content available to any number of other users. With a
15
p2p system, you can share your favorite songs with your best friend—
16
or your 20,000 best friends.
17
According to a number of estimates, a huge proportion of Ameri-
18
cans have tasted ﬁle-sharing technology. A study by Ipsos-Insight in
19
September 2002 estimated that 60 million Americans had downloaded
20
music—28 percent of Americans older than 12.7 A survey by the NPD
21
group quoted in The New York Times estimated that 43 million citizens
22
used ﬁle-sharing networks to exchange content in May 2003.8 The vast
23
majority of these are not kids. Whatever the actual ﬁgure, a massive
24
quantity of content is being “taken” on these networks. The ease and
25
inexpensiveness of ﬁle-sharing networks have inspired millions to en-
26
joy music in a way that they hadn’t before.
27
Some of this enjoying involves copyright infringement. Some of it
28
does not. And even among the part that is technically copyright in-
29
fringement, calculating the actual harm to copyright owners is more
30
complicated than one might think. So consider—a bit more carefully
31
than the polarized voices around this debate usually do—the kinds of
S32
sharing that ﬁle sharing enables, and the kinds of harm it entails.
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1
File sharers share different kinds of content. We can divide these
2
different kinds into four types.
3
4
A. There are some who use sharing networks as substitutes for pur-
5
chasing content. Thus, when a new Madonna CD is released,
6
rather than buying the CD, these users simply take it. We might
7
quibble about whether everyone who takes it would actually
8
have bought it if sharing didn’t make it available for free. Most
9
probably wouldn’t have, but clearly there are some who would.
10
The latter are the target of category A: users who download in-
11
stead of purchasing.
12
B. There are some who use sharing networks to sample music before
13
purchasing it. Thus, a friend sends another friend an MP3 of an
14
artist he’s not heard of. The other friend then buys CDs by that
15
artist. This is a kind of targeted advertising, quite likely to suc-
16
ceed. If the friend recommending the album gains nothing from
17
a bad recommendation, then one could expect that the recom-
18
mendations will actually be quite good. The net effect of this
19
sharing could increase the quantity of music purchased.
20
C. There are many who use sharing networks to get access to copy-
21
righted content that is no longer sold or that they would not
22
have purchased because the transaction costs off the Net are too
23
high. This use of sharing networks is among the most reward-
24
ing for many. Songs that were part of your childhood but have
25
long vanished from the marketplace magically appear again on
26
the network. (One friend told me that when she discovered
27
Napster, she spent a solid weekend “recalling” old songs. She
28
was astonished at the range and mix of content that was avail-
29
able.) For content not sold, this is still technically a violation of
30
copyright, though because the copyright owner is not selling the
31
content anymore, the economic harm is zero—the same harm
32S
that occurs when I sell my collection of 1960s 45-rpm records to
33R
a local collector.
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D. Finally, there are many who use sharing networks to get access
1
to content that is not copyrighted or that the copyright owner
2
wants to give away.
3
4
How do these different types of sharing balance out?
5
Let’s start with some simple but important points. From the per-
6
spective of the law, only type D sharing is clearly legal. From the
7
perspective of economics, only type A sharing is clearly harmful.9
8
Type B sharing is illegal but plainly beneﬁcial. Type C sharing is ille-
9
gal, yet good for society (since more exposure to music is good) and
10
harmless to the artist (since the work is not otherwise available). So
11
how sharing matters on balance is a hard question to answer—and cer-
12
tainly much more difﬁcult than the current rhetoric around the issue
13
suggests.
14
Whether on balance sharing is harmful depends importantly on
15
how harmful type A sharing is. Just as Edison complained about Hol-
16
lywood, composers complained about piano rolls, recording artists
17
complained about radio, and broadcasters complained about cable TV,
18
the music industry complains that type A sharing is a kind of “theft”
19
that is “devastating” the industry.
20
While the numbers do suggest that sharing is harmful, how harm-
21
ful is harder to reckon. It has long been the recording industry’s prac-
22
tice to blame technology for any drop in sales. The history of cassette
23
recording is a good example. As a study by Cap Gemini Ernst &
24
Young put it, “Rather than exploiting this new, popular technology, the
25
labels fought it.”10 The labels claimed that every album taped was an
26
album unsold, and when record sales fell by 11.4 percent in 1981, the
27
industry claimed that its point was proved. Technology was the prob-
28
lem, and banning or regulating technology was the answer.
29
Yet soon thereafter, and before Congress was given an opportunity
30
to enact regulation, MTV was launched, and the industry had a record
31
turnaround. “In the end,” Cap Gemini concludes, “the ‘crisis’ . . . was
S32
not the fault of the tapers—who did not [stop after MTV came into
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being]—but had to a large extent resulted from stagnation in musical
2
innovation at the major labels.”11
3
But just because the industry was wrong before does not mean it is
4
wrong today. To evaluate the real threat that p2p sharing presents to
5
the industry in particular, and society in general—or at least the soci-
6
ety that inherits the tradition that gave us the ﬁlm industry, the record
7
industry, the radio industry, cable TV, and the VCR—the question is
8
not simply whether type A sharing is harmful. The question is also how
9
harmful type A sharing is, and how beneﬁcial the other types of shar-
10
ing are.
11
We start to answer this question by focusing on the net harm, from
12
the standpoint of the industry as a whole, that sharing networks cause.
13
The “net harm” to the industry as a whole is the amount by which type
14
A sharing exceeds type B. If the record companies sold more records
15
through sampling than they lost through substitution, then sharing
16
networks would actually beneﬁt music companies on balance. They
17
would therefore have little static reason to resist them.
18
Could that be true? Could the industry as a whole be gaining be-
19
cause of ﬁle sharing? Odd as that might sound, the data about CD
20
sales actually suggest it might be close.
21
In 2002, the RIAA reported that CD sales had fallen by 8.9 per-
22
cent, from 882 million to 803 million units; revenues fell 6.7 percent.12
23
This conﬁrms a trend over the past few years. The RIAA blames In-
24
ternet piracy for the trend, though there are many other causes that
25
could account for this drop. SoundScan, for example, reports a more
26
than 20 percent drop in the number of CDs released since 1999. That
27
no doubt accounts for some of the decrease in sales. Rising prices could
28
account for at least some of the loss. “From 1999 to 2001, the average
29
price of a CD rose 7.2 percent, from $13.04 to $14.19.”13 Competition
30
from other forms of media could also account for some of the decline.
31
As Jane Black of BusinessWeek notes, “The soundtrack to the ﬁlm High
32S
Fidelity has a list price of $18.98. You could get the whole movie [on
33R
DVD] for $19.99.”14
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But let’s assume the RIAA is right, and all of the decline in CD
1
sales is because of Internet sharing. Here’s the rub: In the same period
2
that the RIAA estimates that 803 million CDs were sold, the RIAA
3
estimates that 2.1 billion CDs were downloaded for free. Thus, al-
4
though 2.6 times the total number of CDs sold were downloaded for
5
free, sales revenue fell by just 6.7 percent.
6
There are too many different things happening at the same time to
7
explain these numbers deﬁnitively, but one conclusion is unavoidable:
8
The recording industry constantly asks, “What’s the difference be-
9
tween downloading a song and stealing a CD?”—but their own num-
10
bers reveal the difference. If I steal a CD, then there is one less CD to
11
sell. Every taking is a lost sale. But on the basis of the numbers the
12
RIAA provides, it is absolutely clear that the same is not true of
13
downloads. If every download were a lost sale—if every use of Kazaa
14
“rob[bed] the author of [his] proﬁt”—then the industry would have
15
suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6
16
times the number of CDs sold were downloaded for free, and yet sales
17
revenue dropped by just 6.7 percent, then there is a huge difference be-
18
tween “downloading a song and stealing a CD.”
19
These are the harms—alleged and perhaps exaggerated but, let’s as-
20
sume, real. What of the beneﬁts? File sharing may impose costs on the
21
recording industry. What value does it produce in addition to these
22
costs?
23
One beneﬁt is type C sharing—making available content that is
24
technically still under copyright but is no longer commercially avail-
25
able. This is not a small category of content. There are millions of
26
tracks that are no longer commercially available.15 And while it’s con-
27
ceivable that some of this content is not available because the artist
28
producing the content doesn’t want it to be made available, the vast
29
majority of it is unavailable solely because the publisher or the distrib-
30
utor has decided it no longer makes economic sense to the company to
31
make it available.
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In real space—long before the Internet—the market had a simple
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response to this problem: used book and record stores. There are thou-
2
sands of used book and used record stores in America today.16 These
3
stores buy content from owners, then sell the content they buy. And
4
under American copyright law, when they buy and sell this content,
5
even if the content is still under copyright, the copyright owner doesn’t get
6
a dime. Used book and record stores are commercial entities; their
7
owners make money from the content they sell; but as with cable com-
8
panies before statutory licensing, they don’t have to pay the copyright
9
owner for the content they sell.
10
Type C sharing, then, is very much like used book stores or used
11
record stores. It is different, of course, because the person making the
12
content available isn’t making money from making the content avail-
13
able. It is also different, of course, because in real space, when I sell a
14
record, I don’t have it anymore, while in cyberspace, when someone
15
shares my 1949 recording of Bernstein’s “Two Love Songs,” I still have
16
it. That difference would matter economically if the owner of the 1949
17
copyright were selling the record in competition to my sharing. But
18
we’re talking about the class of content that is not currently commer-
19
cially available. The Internet is making it available, through coopera-
20
tive sharing, without competing with the market.
21
It may well be, all things considered, that it would be better if the
22
copyright owner got something from this trade. But just because it may
23
well be better, it doesn’t follow that it would be good to ban used book
24
stores. Or put differently, if you think that type C sharing should be
25
stopped, do you think that libraries and used book stores should be
26
shut as well?
27
Finally, and perhaps most importantly, ﬁle-sharing networks enable
28
type D sharing to occur—the sharing of content that copyright owners
29
want to have shared or for which there is no continuing copyright. This
30
sharing clearly beneﬁts authors and society. Science ﬁction author
31
Cory Doctorow, for example, released his ﬁrst novel, Down and Out in
32S
the Magic Kingdom, both free on-line and in bookstores on the same
33R
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day. His (and his publisher’s) thinking was that the on-line distribution
1
would be a great advertisement for the “real” book. People would read
2
part on-line, and then decide whether they liked the book or not. If
3
they liked it, they would be more likely to buy it. Doctorow’s content is
4
type D content. If sharing networks enable his work to be spread, then
5
both he and society are better off. (Actually, much better off: It is a
6
great book!)
7
Likewise for work in the public domain: This sharing beneﬁts soci-
8
ety with no legal harm to authors at all. If efforts to solve the problem
9
of type A sharing destroy the opportunity for type D sharing, then we
10
lose something important in order to protect type A content.
11
The point throughout is this: While the recording industry under-
12
standably says, “This is how much we’ve lost,” we must also ask, “How
13
much has society gained from p2p sharing? What are the efﬁciencies?
14
What is the content that otherwise would be unavailable?”
15
For unlike the piracy I described in the ﬁrst section of this chapter,
16
much of the “piracy” that ﬁle sharing enables is plainly legal and good.
17
And like the piracy I described in chapter 4, much of this piracy is mo-
18
tivated by a new way of spreading content caused by changes in the
19
technology of distribution. Thus, consistent with the tradition that
20
gave us Hollywood, radio, the recording industry, and cable TV, the
21
question we should be asking about ﬁle sharing is how best to preserve
22
its beneﬁts while minimizing (to the extent possible) the wrongful harm
23
it causes artists. The question is one of balance. The law should seek
24
that balance, and that balance will be found only with time.
25
“But isn’t the war just a war against illegal sharing? Isn’t the target
26
just what you call type A sharing?”
27
You would think. And we should hope. But so far, it is not. The ef-
28
fect of the war purportedly on type A sharing alone has been felt far
29
beyond that one class of sharing. That much is obvious from the Nap-
30
ster case itself. When Napster told the district court that it had devel-
31
oped a technology to block the transfer of 99.4 percent of identiﬁed
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infringing material, the district court told counsel for Napster 99.4
2
percent was not good enough. Napster had to push the infringements
3
“down to zero.”17
4
If 99.4 percent is not good enough, then this is a war on ﬁle-sharing
5
technologies, not a war on copyright infringement. There is no way to
6
assure that a p2p system is used 100 percent of the time in compliance
7
with the law, any more than there is a way to assure that 100 percent of
8
VCRs or 100 percent of Xerox machines or 100 percent of handguns
9
are used in compliance with the law. Zero tolerance means zero p2p.
10
The court’s ruling means that we as a society must lose the beneﬁts of
11
p2p, even for the totally legal and beneﬁcial uses they serve, simply to
12
assure that there are zero copyright infringements caused by p2p.
13
Zero tolerance has not been our history. It has not produced the
14
content industry that we know today. The history of American law has
15
been a process of balance. As new technologies changed the way con-
16
tent was distributed, the law adjusted, after some time, to the new tech-
17
nology. In this adjustment, the law sought to ensure the legitimate rights
18
of creators while protecting innovation. Sometimes this has meant
19
more rights for creators. Sometimes less.
20
So, as we’ve seen, when “mechanical reproduction” threatened the
21
interests of composers, Congress balanced the rights of composers
22
against the interests of the recording industry. It granted rights to com-
23
posers, but also to the recording artists: Composers were to be paid, but
24
at a price set by Congress. But when radio started broadcasting the
25
recordings made by these recording artists, and they complained to
26
Congress that their “creative property” was not being respected (since
27
the radio station did not have to pay them for the creativity it broad-
28
cast), Congress rejected their claim. An indirect beneﬁt was enough.
29
Cable TV followed the pattern of record albums. When the courts
30
rejected the claim that cable broadcasters had to pay for the content
31
they rebroadcast, Congress responded by giving broadcasters a right to
32S
compensation, but at a level set by the law. It likewise gave cable com-
33R
panies the right to the content, so long as they paid the statutory price.
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This compromise, like the compromise affecting records and player
1
pianos, served two important goals—indeed, the two central goals of
2
any copyright legislation. First, the law assured that new innovators
3
would have the freedom to develop new ways to deliver content. Sec-
4
ond, the law assured that copyright holders would be paid for the con-
5
tent that was distributed. One fear was that if Congress simply
6
required cable TV to pay copyright holders whatever they demanded
7
for their content, then copyright holders associated with broadcasters
8
would use their power to stiﬂe this new technology, cable. But if Con-
9
gress had permitted cable to use broadcasters’ content for free, then it
10
would have unfairly subsidized cable. Thus Congress chose a path that
11
would assure compensation without giving the past (broadcasters) con-
12
trol over the future (cable).
13
In the same year that Congress struck this balance, two major pro-
14
ducers and distributors of ﬁlm content ﬁled a lawsuit against another
15
technology, the video tape recorder (VTR, or as we refer to them today,
16
VCRs) that Sony had produced, the Betamax. Disney’s and Universal’s
17
claim against Sony was relatively simple: Sony produced a device, Dis-
18
ney and Universal claimed, that enabled consumers to engage in copy-
19
right infringement. Because the device that Sony built had a “record”
20
button, the device could be used to record copyrighted movies and
21
shows. Sony was therefore beneﬁting from the copyright infringement
22
of its customers. It should therefore, Disney and Universal claimed, be
23
partially liable for that infringement.
24
There was something to Disney’s and Universal’s claim. Sony did
25
decide to design its machine to make it very simple to record television
26
shows. It could have built the machine to block or inhibit any direct
27
copying from a television broadcast. Or possibly, it could have built the
28
machine to copy only if there were a special “copy me” signal on the
29
line. It was clear that there were many television shows that did not
30
grant anyone permission to copy. Indeed, if anyone had asked, no
31
doubt the majority of shows would not have authorized copying. And
S32
in the face of this obvious preference, Sony could have designed its sys-
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1
tem to minimize the opportunity for copyright infringement. It did
2
not, and for that, Disney and Universal wanted to hold it responsible
3
for the architecture it chose.
4
MPAA president Jack Valenti became the studios’ most vocal
5
champion. Valenti called VCRs “tapeworms.” He warned, “When
6
there are 20, 30, 40 million of these VCRs in the land, we will be in-
7
vaded by millions of ‘tapeworms,’ eating away at the very heart and
8
essence of the most precious asset the copyright owner has, his copy-
9
right.”18 “One does not have to be trained in sophisticated marketing
10
and creative judgment,” he told Congress, “to understand the devasta-
11
tion on the after-theater marketplace caused by the hundreds of mil-
12
lions of tapings that will adversely impact on the future of the creative
13
community in this country. It is simply a question of basic economics
14
and plain common sense.”19 Indeed, as surveys would later show, 45
15
percent of VCR owners had movie libraries of ten videos or more20—a
16
use the Court would later hold was not “fair.” By “allowing VCR own-
17
ers to copy freely by the means of an exemption from copyright in-
18
fringement without creating a mechanism to compensate copyright
19
owners,” Valenti testiﬁed, Congress would “take from the owners the
20
very essence of their property: the exclusive right to control who may
21
use their work, that is, who may copy it and thereby proﬁt from its re-
22
production.”21
23
It took eight years for this case to be resolved by the Supreme
24
Court. In the interim, the Ninth Circuit Court of Appeals, which in-
25
cludes Hollywood in its jurisdiction—leading Judge Alex Kozinski,
26
who sits on that court, refers to it as the “Hollywood Circuit”—held
27
that Sony would be liable for the copyright infringement made possi-
28
ble by its machines. Under the Ninth Circuit’s rule, this totally famil-
29
iar technology—which Jack Valenti had called “the Boston Strangler
30
of the American ﬁlm industry” (worse yet, it was a Japanese Boston
31
Strangler of the American ﬁlm industry)—was an illegal technology.22
32S
But the Supreme Court reversed the decision of the Ninth Circuit.
33R
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And in its reversal, the Court clearly articulated its understanding of
1
when and whether courts should intervene in such disputes. As the
2
Court wrote,
3
4
Sound policy, as well as history, supports our consistent deference
5
to Congress when major technological innovations alter the mar-
6
ket for copyrighted materials. Congress has the constitutional au-
7
thority and the institutional ability to accommodate fully the
8
varied permutations of competing interests that are inevitably im-
9
plicated by such new technology.23
10
11
Congress was asked to respond to the Supreme Court’s decision.
12
But as with the plea of recording artists about radio broadcasts, Con-
13
gress ignored the request. Congress was convinced that American ﬁlm
14
got enough, this “taking” notwithstanding.
15
If we put these cases together, a pattern is clear:
16
17
CASE
WHOSE VALUE
RESPONSE OF
RESPONSE OF CONGRESS
18
WAS “PIRATED”
THE COURTS
19
Recordings
Composers
No protection
Statutory license
20
Radio Recording
artists
N/A
Nothing
Cable TV
Broadcasters
No protection
Statutory license
21
VCR
Film creators
No protection
Nothing
22
23
In each case throughout our history, a new technology changed the
24
way content was distributed.24 In each case, throughout our history,
25
that change meant that someone got a “free ride” on someone else’s
26
work.
27
In none of these cases did either the courts or Congress eliminate all
28
free riding. In none of these cases did the courts or Congress insist that
29
the law should assure that the copyright holder get all the value that his
30
copyright created. In every case, the copyright owners complained of
31
“piracy.” In every case, Congress acted to recognize some of the legiti-
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macy in the behavior of the “pirates.” In each case, Congress allowed
2
some new technology to beneﬁt from content made before. It balanced
3
the interests at stake.
4
When you think across these examples, and the other examples that
5
make up the ﬁrst four chapters of this section, this balance makes
6
sense. Was Walt Disney a pirate? Would doujinshi be better if creators
7
had to ask permission? Should tools that enable others to capture and
8
spread images as a way to cultivate or criticize our culture be better reg-
9
ulated? Is it really right that building a search engine should expose you
10
to $15 million in damages? Would it have been better if Edison had
11
controlled ﬁlm? Should every cover band have to hire a lawyer to get
12
permission to record a song?
13
We could answer yes to each of these questions, but our tradition
14
has answered no. In our tradition, as the Supreme Court has stated,
15
copyright “has never accorded the copyright owner complete control
16
over all possible uses of his work.”25 Instead, the particular uses that the
17
law regulates have been deﬁned by balancing the good that comes from
18
granting an exclusive right against the burdens such an exclusive right
19
creates. And this balancing has historically been done after a technol-
20
ogy has matured, or settled into the mix of technologies that facilitate
21
the distribution of content.
22
We should be doing the same thing today. The technology of the
23
Internet is changing quickly. The way people connect to the Internet
24
(wires vs. wireless) is changing very quickly. No doubt the network
25
should not become a tool for “stealing” from artists. But neither should
26
the law become a tool to entrench one particular way in which artists
27
(or more accurately, distributors) get paid. As I describe in some detail
28
in the last chapter of this book, we should be securing income to artists
29
while we allow the market to secure the most efﬁcient way to promote
30
and distribute content. This will require changes in the law, at least
31
in the interim. These changes should be designed to balance the pro-
32S
tection of the law against the strong public interest that innovation
33R
continue.
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This is especially true when a new technology enables a vastly su-
1
perior mode of distribution. And this p2p has done. P2p technologies
2
can be ideally efﬁcient in moving content across a widely diverse net-
3
work. Left to develop, they could make the network vastly more efﬁ-
4
cient. Yet these “potential public beneﬁts,” as John Schwartz writes in
5
The New York Times, “could be delayed in the P2P ﬁght.”26
6
7
8
Yet when anyone begins to talk about “balance,” the copyright war-
9
riors raise a different argument. “All this hand waving about balance
10
and incentives,” they say, “misses a fundamental point. Our content,”
11
the warriors insist, “is our property. Why should we wait for Congress
12
to ‘rebalance’ our property rights? Do you have to wait before calling
13
the police when your car has been stolen? And why should Congress
14
deliberate at all about the merits of this theft? Do we ask whether the
15
car thief had a good use for the car before we arrest him?”
16
“It is our property,” the warriors insist. “And it should be protected
17
just as any other property is protected.”
18
19
20
21
22
23
24
25
26
27
28
29
30
31
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
“PROPERTY”
S32
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❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
The copyright warriors are right: A copyright is a kind of
Po17
property. It can be owned and sold, and the law protects against its
18
theft. Ordinarily, the copyright owner gets to hold out for any price he
19
wants. Markets reckon the supply and demand that partially determine
20
the price she can get.
21
But in ordinary language, to call a copyright a “property” right is a
22
bit misleading, for the property of copyright is an odd kind of property.
23
Indeed, the very idea of property in any idea or any expression is very
24
odd. I understand what I am taking when I take the picnic table you
25
put in your backyard. I am taking a thing, the picnic table, and after I
26
take it, you don’t have it. But what am I taking when I take the good
27
idea you had to put a picnic table in the backyard—by, for example, go-
28
ing to Sears, buying a table, and putting it in my backyard? What is the
29
thing I am taking then?
30
The point is not just about the thingness of picnic tables versus
31
ideas, though that’s an important difference. The point instead is that
S32
in the ordinary case—indeed, in practically every case except for a nar-
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row range of exceptions—ideas released to the world are free. I don’t
2
take anything from you when I copy the way you dress—though I
3
might seem weird if I did it every day, and especially weird if you are a
4
woman. Instead, as Thomas Jefferson said (and as is especially true
5
when I copy the way someone else dresses), “He who receives an idea
6
from me, receives instruction himself without lessening mine; as he who
7
lights his taper at mine, receives light without darkening me.”1
8
The exceptions to free use are ideas and expressions within the
9
reach of the law of patent and copyright, and a few other domains that
10
I won’t discuss here. Here the law says you can’t take my idea or ex-
11
pression without my permission: The law turns the intangible into
12
property.
13
But how, and to what extent, and in what form—the details, in
14
other words—matter. To get a good sense of how this practice of turn-
15
ing the intangible into property emerged, we need to place this “prop-
16
erty” in its proper context.2
17
My strategy in doing this will be the same as my strategy in the pre-
18
ceding part. I offer four stories to help put the idea of “copyright ma-
19
terial is property” in context. Where did the idea come from? What are
20
its limits? How does it function in practice? After these stories, the
21
signiﬁcance of this true statement—“copyright material is property”—
22
will be a bit more clear, and its implications will be revealed as quite
23
different from the implications that the copyright warriors would have
24
us draw.
25
26
27
28
29
30
31
32S
33R
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2
3
4
5
6
7
8
9
10
11
12
13
14
CHAPTER SIX: Founders
15
16
William Shakespeare wrote Romeo and Juliet in 1595. The play
Co17
was ﬁrst published in 1597. It was the eleventh major play that Shake-
18
speare had written. He would continue to write plays through 1613,
19
and the plays that he wrote have continued to deﬁne Anglo-American
20
culture ever since. So deeply have the works of a sixteenth-century writer
21
seeped into our culture that we often don’t even recognize their source.
22
I once overheard someone commenting on Kenneth Branagh’s adapta-
23
tion of Henry V: “I liked it, but Shakespeare is so full of clichés.”
24
In 1774, almost 180 years after Romeo and Juliet was written, the
25
“copy-right” for the work was still thought by many to be the exclusive
26
right of a single London publisher, Jacob Tonson.1 Tonson was the
27
most prominent of a small group of publishers called the Conger2 who
28
controlled bookselling in England during the eighteenth century. The
29
Conger claimed a perpetual right to control the “copy” of books that
30
they had acquired from authors. That perpetual right meant that no
31
one else could publish copies of a book to which they held the copy-
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right. Prices of the classics were thus kept high; competition to pro-
2
duce better or cheaper editions was eliminated.
3
Now, there’s something puzzling about the year 1774 to anyone who
4
knows a little about copyright law. The better-known year in the history
5
of copyright is 1710, the year that the British Parliament adopted the
6
ﬁrst “copyright” act. Known as the Statute of Anne, the act stated that
7
all published works would get a copyright term of fourteen years, re-
8
newable once if the author was alive, and that all works already pub-
9
lished by 1710 would get a single term of twenty-one additional years.3
10
Under this law, Romeo and Juliet should have been free in 1731. So why
11
was there any issue about it still being under Tonson’s control in 1774?
12
The reason is that the English hadn’t yet agreed on what a “copy-
13
right” was—indeed, no one had. At the time the English passed the
14
Statute of Anne, there was no other legislation governing copyrights.
15
The last law regulating publishers, the Licensing Act of 1662, had ex-
16
pired in 1695. That law gave publishers a monopoly over publishing, as
17
a way to make it easier for the Crown to control what was published.
18
But after it expired, there was no positive law that said that the pub-
19
lishers, or “Stationers,” had an exclusive right to print books.
20
There was no positive law, but that didn’t mean that there was no
21
law. The Anglo-American legal tradition looks to both the words of
22
legislatures and the words of judges to know the rules that are to gov-
23
ern how people are to behave. We call the words from legislatures “pos-
24
itive law.” We call the words from judges “common law.” The common
25
law sets the background against which legislatures legislate; the legis-
26
lature, ordinarily, can trump that background only if it passes a law to
27
displace it. And so the real question after the licensing statutes had ex-
28
pired was whether the common law protected a copyright, indepen-
29
dent of any positive law.
30
This question was important to the publishers, or “booksellers,” as
31
they were called, because there was growing competition from foreign
32S
publishers. The Scottish, in particular, were increasingly publishing
33R
and exporting books to England. That competition reduced the proﬁts
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of the Conger, which reacted by demanding that Parliament pass a law
1
to again give them exclusive control over publishing. That demand ul-
2
timately resulted in the Statute of Anne.
3
The Statute of Anne granted the author or “proprietor” of a book
4
an exclusive right to print that book. In an important limitation, how-
5
ever, and to the horror of the booksellers, the law gave the bookseller
6
that right for a limited term. At the end of that term, the copyright “ex-
7
pired,” and the work would then be free and could be published by
8
anyone. Or so the legislature is thought to have believed.
9
Now, the thing to puzzle about for a moment is this: Why would
10
Parliament limit the exclusive right? Not why would they limit it to the
11
particular limit they set, but why would they limit the right at all?
12
For the booksellers, and the authors whom they represented, had a
13
very strong claim. Take Romeo and Juliet as an example: That play was
14
written by Shakespeare. It was his genius that brought it into the
15
world. He didn’t take anybody’s property when he created this play
16
(that’s a controversial claim, but never mind), and by his creating this
17
play, he didn’t make it any harder for others to craft a play. So why is it
18
that the law would ever allow someone else to come along and take
19
Shakespeare’s play without his, or his estate’s, permission? What rea-
20
son is there to allow someone else to “steal” Shakespeare’s work?
21
The answer comes in two parts. We ﬁrst need to see something spe-
22
cial about the notion of “copyright” that existed at the time of the
23
Statute of Anne. Second, we have to see something important about
24
“booksellers.”
25
First, about copyright. In the last three hundred years, we have
26
come to apply the concept of “copyright” ever more broadly. But in
27
1710, it wasn’t so much a concept as it was a very particular right. The
28
copyright was born as a very speciﬁc set of restrictions: It forbade oth-
29
ers from reprinting a book. In 1710, the “copy-right” was a right to use
30
a particular machine to replicate a particular work. It did not go be-
31
yond that very narrow right. It did not control any more generally how
S32
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strictions on the freedom of others: It grants the author the exclusive
2
right to copy, the exclusive right to distribute, the exclusive right to
3
perform, and so on.
4
So, for example, even if the copyright to Shakespeare’s works were
5
perpetual, all that would have meant under the original meaning of the
6
term was that no one could reprint Shakespeare’s work without the per-
7
mission of the Shakespeare estate. It would not have controlled any-
8
thing, for example, about how the work could be performed, whether
9
the work could be translated, or whether Kenneth Branagh would be
10
allowed to make his ﬁlms. The “copy-right” was only an exclusive right
11
to print—no less, of course, but also no more.
12
Even that limited right was viewed with skepticism by the British.
13
They had had a long and ugly experience with “exclusive rights,” espe-
14
cially “exclusive rights” granted by the Crown. The English had fought
15
a civil war in part about the Crown’s practice of handing out monopo-
16
lies—especially monopolies for works that already existed. King Henry
17
VIII granted a patent to print the Bible and a monopoly to Darcy to
18
print playing cards. The English Parliament began to ﬁght back
19
against this power of the Crown. In 1656, it passed the Statute of Mo-
20
nopolies, limiting monopolies to patents for new inventions. And by
21
1710, Parliament was eager to deal with the growing monopoly in
22
publishing.
23
Thus the “copy-right,” when viewed as a monopoly right, was nat-
24
urally viewed as a right that should be limited. (However convincing
25
the claim that “it’s my property, and I should have it forever,” try
26
sounding convincing when uttering, “It’s my monopoly, and I should
27
have it forever.”) The state would protect the exclusive right, but only
28
so long as it beneﬁted society. The British saw the harms from special-
29
interest favors; they passed a law to stop them.
30
Second, about booksellers. It wasn’t just that the copyright was a
31
monopoly. It was also that it was a monopoly held by the booksellers.
32S
Booksellers sound quaint and harmless to us. They were not viewed
33R
as harmless in seventeenth-century England. Members of the Conger
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were increasingly seen as monopolists of the worst kind—tools of the
1
Crown’s repression, selling the liberty of England to guarantee them-
2
selves a monopoly proﬁt. The attacks against these monopolists were
3
harsh: Milton described them as “old patentees and monopolizers in
4
the trade of book-selling”; they were “men who do not therefore labour
5
in an honest profession to which learning is indetted.”4
6
Many believed the power the booksellers exercised over the spread
7
of knowledge was harming that spread, just at the time the Enlighten-
8
ment was teaching the importance of education and knowledge spread
9
generally. The idea that knowledge should be free was a hallmark of the
10
time, and these powerful commercial interests were interfering with
11
that idea.
12
To balance this power, Parliament decided to increase competition
13
among booksellers, and the simplest way to do that was to spread the
14
wealth of valuable books. Parliament therefore limited the term of
15
copyrights, and thereby guaranteed that valuable books would become
16
open to any publisher to publish after a limited time. Thus the setting
17
of the term for existing works to just twenty-one years was a compro-
18
mise to ﬁght the power of the booksellers. The limitation on terms was
19
an indirect way to assure competition among publishers, and thus the
20
construction and spread of culture.
21
When 1731 (1710 + 21) came along, however, the booksellers were
22
getting anxious. They saw the consequences of more competition, and
23
like every competitor, they didn’t like them. At ﬁrst booksellers simply
24
ignored the Statute of Anne, continuing to insist on the perpetual right
25
to control publication. But in 1735 and 1737, they tried to persuade
26
Parliament to extend their terms. Twenty-one years was not enough,
27
they said; they needed more time.
28
Parliament rejected their requests. As one pamphleteer put it, in
29
words that echo today,
30
31
I see no Reason for granting a further Term now, which will not
S32
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ones Expire; so that should this Bill pass, it will in Effect be es-
2
tablishing a perpetual Monopoly, a Thing deservedly odious in
3
the Eye of the Law; it will be a great Cramp to Trade, a Discour-
4
agement to Learning, no Beneﬁt to the Authors, but a general
5
Tax on the Publick; and all this only to increase the private Gain
6
of the Booksellers.5
7
8
Having failed in Parliament, the publishers turned to the courts in
9
a series of cases. Their argument was simple and direct: The Statute of
10
Anne gave authors certain protections through positive law, but those
11
protections were not intended as replacements for the common law.
12
Instead, they were intended simply to supplement the common law.
13
Under common law, it was already wrong to take another person’s cre-
14
ative “property” and use it without his permission. The Statute of Anne,
15
the booksellers argued, didn’t change that. Therefore, just because the
16
protections of the Statute of Anne expired, that didn’t mean the pro-
17
tections of the common law expired: Under the common law they had
18
the right to ban the publication of a book, even if its Statute of Anne
19
copyright had expired. This, they argued, was the only way to protect
20
authors.
21
This was a clever argument, and one that had the support of some
22
of the leading jurists of the day. It also displayed extraordinary chutz-
23
pah. Until then, as law professor Raymond Patterson has put it, “The
24
publishers . . . had as much concern for authors as a cattle rancher has
25
for cattle.”6 The bookseller didn’t care squat for the rights of the au-
26
thor. His concern was the monopoly proﬁt that the author’s work gave.
27
The booksellers’ argument was not accepted without a ﬁght.
28
The hero of this ﬁght was a Scottish bookseller named Alexander
29
Donaldson.7
30
Donaldson was an outsider to the London Conger. He began his
31
career in Edinburgh in 1750. The focus of his business was inexpensive
32S
reprints “of standard works whose copyright term had expired,” at least
33R
under the Statute of Anne.8 Donaldson’s publishing house prospered
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and became “something of a center for literary Scotsmen.” “[A]mong
1
them,” Professor Mark Rose writes, was “the young James Boswell
2
who, together with his friend Andrew Erskine, published an anthology
3
of contemporary Scottish poems with Donaldson.”9
4
When the London booksellers tried to shut down Donaldson’s
5
shop in Scotland, he responded by moving his shop to London, where
6
he sold inexpensive editions “of the most popular English books, in de-
7
ﬁance of the supposed common law right of Literary Property.”10 His
8
books undercut the Conger prices by 30 to 50 percent, and he rested
9
his right to compete upon the ground that, under the Statute of Anne,
10
the works he was selling had passed out of protection.
11
The London booksellers quickly brought suit to block “piracy” like
12
Donaldson’s. A number of actions were successful against the “pirates,”
13
the most important early victory being Millar v. Taylor.
14
Millar was a bookseller who in 1729 had purchased the rights to
15
James Thomson’s poem “The Seasons.” Millar complied with the re-
16
quirements of the Statute of Anne, and therefore received the full pro-
17
tection of the statute. After the term of copyright ended, Robert Taylor
18
began printing a competing volume. Millar sued, claiming a perpetual
19
common law right, the Statute of Anne notwithstanding.11
20
Astonishingly to modern lawyers, one of the greatest judges in En-
21
glish history, Lord Mansﬁeld, agreed with the booksellers. Whatever
22
protection the Statute of Anne gave booksellers, it did not, he held,
23
extinguish any common law right. The question was whether the
24
common law would protect the author against subsequent “pirates.”
25
Mansﬁeld’s answer was yes: The common law would bar Taylor from
26
reprinting Thomson’s poem without Millar’s permission. That com-
27
mon law rule thus effectively gave the booksellers a perpetual right to
28
control the publication of any book assigned to them.
29
Considered as a matter of abstract justice—reasoning as if justice
30
were just a matter of logical deduction from ﬁrst principles—Mansﬁeld’s
31
conclusion might make some sense. But what it ignored was the larger
S32
issue that Parliament had struggled with in 1710: How best to limit
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the monopoly power of publishers? Parliament’s strategy was to offer a
2
term for existing works that was long enough to buy peace in 1710, but
3
short enough to assure that culture would pass into competition within
4
a reasonable period of time. Within twenty-one years, Parliament be-
5
lieved, Britain would mature from the controlled culture that the
6
Crown coveted to the free culture that we inherited.
7
The ﬁght to defend the limits of the Statute of Anne was not to end
8
there, however, and it is here that Donaldson enters the mix.
9
Millar died soon after his victory, so his case was not appealed. His
10
estate sold Thomson’s poems to a syndicate of printers that included
11
Thomas Beckett.12 Donaldson then released an unauthorized edition
12
of Thomson’s works. Beckett, on the strength of the decision in Millar,
13
got an injunction against Donaldson. Donaldson appealed the case to
14
the House of Lords, which functioned much like our own Supreme
15
Court. In February of 1774, that body had the chance to interpret the
16
meaning of Parliament’s limits from sixty years before.
17
As few legal cases ever do, Donaldson v. Beckett drew an enormous
18
amount of attention throughout Britain. Donaldson’s lawyers argued
19
that whatever rights may have existed under the common law, the Statute
20
of Anne terminated those rights. After passage of the Statute of Anne,
21
the only legal protection for an exclusive right to control publication
22
came from that statute. Thus, they argued, after the term speciﬁed in
23
the Statute of Anne expired, works that had been protected by the
24
statute were no longer protected.
25
The House of Lords was an odd institution. Legal questions were
26
presented to the House and voted upon ﬁrst by the “law lords,” mem-
27
bers of special legal distinction who functioned much like the Justices
28
in our Supreme Court. Then, after the law lords voted, the House of
29
Lords generally voted.
30
The reports about the law lords’ votes are mixed. On some counts,
31
it looks as if perpetual copyright prevailed. But there is no ambiguity
32S
about how the House of Lords voted as whole. By a two-to-one ma-
33R
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jority (22 to 11) they voted to reject the idea of perpetual copyrights.
1
Whatever one’s understanding of the common law, now a copyright
2
was ﬁxed for a limited time, after which the work protected by copy-
3
right passed into the public domain.
4
“The public domain.” Before the case of Donaldson v. Beckett, there
5
was no clear idea of a public domain in England. Before 1774, there
6
was a strong argument that common law copyrights were perpetual.
7
After 1774, the public domain was born. For the ﬁrst time in Anglo-
8
American history, the legal control over creative works expired, and the
9
greatest works in English history—including those of Shakespeare,
10
Bacon, Milton, Johnson, and Bunyan—were free of legal restraint.
11
It is hard for us to imagine, but this decision by the House of Lords
12
fueled an extraordinarily popular and political reaction. In Scotland,
13
where most of the “pirate publishers” did their work, people celebrated
14
the decision in the streets. As the Edinburgh Advertiser reported, “No
15
private cause has so much engrossed the attention of the public, and
16
none has been tried before the House of Lords in the decision of
17
which so many individuals were interested.” “Great rejoicing in Edin-
18
burgh upon victory over literary property: bonﬁres and illumina-
19
tions.”13
20
In London, however, at least among publishers, the reaction was
21
equally strong in the opposite direction. The Morning Chronicle re-
22
ported:
23
24
By the above decision . . . near 200,000 pounds worth of what
25
was honestly purchased at public sale, and which was yesterday
26
thought property is now reduced to nothing. The Booksellers of
27
London and Westminster, many of whom sold estates and houses
28
to purchase Copy-right, are in a manner ruined, and those who
29
after many years industry thought they had acquired a compe-
30
tency to provide for their families now ﬁnd themselves without a
31
shilling to devise to their successors. 14
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1
“Ruined” is a bit of an exaggeration. But it is not an exaggeration to
2
say that the change was profound. The decision of the House of Lords
3
meant that the booksellers could no longer control how culture in En-
4
gland would grow and develop. Culture in England was thereafter free.
5
Not in the sense that copyrights would not be respected, for of course,
6
for a limited time after a work was published, the bookseller had an ex-
7
clusive right to control the publication of that book. And not in the
8
sense that books could be stolen, for even after a copyright expired, you
9
still had to buy the book from someone. But free in the sense that the
10
culture and its growth would no longer be controlled by a small group
11
of publishers. As every free market does, this free market of free culture
12
would grow as the consumers and producers chose. English culture
13
would develop as the many English readers chose to let it develop—
14
chose in the books they bought and wrote; chose in the memes they
15
repeated and endorsed. Chose in a competitive context, not a context
16
in which the choices about what culture is available to people and
17
how they get access to it are made by the few despite the wishes of
18
the many.
19
At least, this was the rule in a world where the Parliament is anti-
20
monopoly, resistant to the protectionist pleas of publishers. In a world
21
where the Parliament is more pliant, free culture would be less pro-
22
tected.
23
24
25
26
27
28
29
30
31
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
CHAPTER SEVEN: Recorders
15
16
Jon Else is a ﬁlmmaker. He is best known for his documentaries and
Co17
has been very successful in spreading his art. He is also a teacher, and
18
as a teacher myself, I envy the loyalty and admiration that his students
19
feel for him. (I met, by accident, two of his students at a dinner party.
20
He was their god.)
21
Else worked on a documentary that I was involved in. At a break,
22
he told me a story about the freedom to create with ﬁlm in America
23
today.
24
In 1990, Else was working on a documentary about Wagner’s Ring
25
Cycle. The focus was stagehands at the San Francisco Opera. Stage-
26
hands are a particularly funny and colorful element of an opera. Dur-
27
ing a show, they hang out below the stage in the grips’ lounge and in
28
the lighting loft. They make a perfect contrast to the art on the stage.
29
During one of the performances, Else was shooting some stage-
30
hands playing checkers. In one corner of the room was a television set.
31
Playing on the television set, while the stagehands played checkers and
S32
the opera company played Wagner, was The Simpsons. As Else judged
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it, this touch of cartoon helped capture the ﬂavor of what was special
2
about the scene.
3
Years later, when he ﬁnally got funding to complete the ﬁlm, Else
4
attempted to clear the rights for those few seconds of The Simpsons.
5
For of course, those few seconds are copyrighted; and of course, to use
6
copyrighted material you need the permission of the copyright owner,
7
unless “fair use” or some other privilege applies.
8
Else called Simpsons creator Matt Groening’s ofﬁce to get permis-
9
sion. Groening approved the shot. The shot was a four-and-a-half-
10
second image on a tiny television set in the corner of the room. How
11
could it hurt? Groening was happy to have it in the ﬁlm, but he told
12
Else to contact Gracie Films, the company that produces the program.
13
Gracie Films was okay with it, too, but they, like Groening, wanted
14
to be careful. So they told Else to contact Fox, Gracie’s parent company.
15
Else called Fox and told them about the clip in the corner of the one
16
room shot of the ﬁlm. Matt Groening had already given permission,
17
Else said. He was just conﬁrming the permission with Fox.
18
Then, as Else told me, “two things happened. First we discov-
19
ered . . . that Matt Groening doesn’t own his own creation—or at least
20
that someone [at Fox] believes he doesn’t own his own creation.” And
21
second, Fox “wanted ten thousand dollars as a licensing fee for us to use
22
this four-point-ﬁve seconds of . . . entirely unsolicited Simpsons which
23
was in the corner of the shot.”
24
Else was certain there was a mistake. He worked his way up to
25
someone he thought was a vice president for licensing, Rebecca Her-
26
rera. He explained to her, “There must be some mistake here. . . .
27
We’re asking for your educational rate on this.” That was the educa-
28
tional rate, Herrera told Else. A day or so later, Else called again to
29
conﬁrm what he had been told.
30
“I wanted to make sure I had my facts straight,” he told me. “Yes,
31
you have your facts straight,” she said. It would cost $10,000 to use the
32S
clip of The Simpsons in the corner of a shot in a documentary ﬁlm about
33R
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Wagner’s Ring Cycle. And then, astonishingly, Herrera told Else, “And
1
if you quote me, I’ll turn you over to our attorneys.” As an assistant to
2
Herrera told Else later on, “They don’t give a shit. They just want the
3
money.”
4
Else didn’t have the money to buy the right to replay what was play-
5
ing on the television backstage at the San Francisco Opera. To reproduce
6
this reality was beyond the documentary ﬁlmmaker’s budget. At the very
7
last minute before the ﬁlm was to be released, Else digitally replaced the
8
shot with a clip from another ﬁlm that he had worked on, The Day After
9
Trinity, from ten years before.
10
11
12
There’s no doubt that someone, whether Matt Groening or Fox,
13
owns the copyright to The Simpsons. That copyright is their property.
14
To use that copyrighted material thus sometimes requires the permis-
15
sion of the copyright owner. If the use that Else wanted to make of the
16
Simpsons copyright were one of the uses restricted by the law, then he
17
would need to get the permission of the copyright owner before he
18
could use the work in that way. And in a free market, it is the owner of
19
the copyright who gets to set the price for any use that the law says the
20
owner gets to control.
21
For example, “public performance” is a use of The Simpsons that
22
the copyright owner gets to control. If you take a selection of favorite
23
episodes, rent a movie theater, and charge for tickets to come see “My
24
Favorite Simpsons,” then you need to get permission from the copy-
25
right owner. And the copyright owner (rightly, in my view) can charge
26
whatever she wants—$10 or $1,000,000. That’s her right, as set by
27
the law.
28
But when lawyers hear this story about Jon Else and Fox, their ﬁrst
29
thought is “fair use.”1 Else’s use of just 4.5 seconds of an indirect shot
30
of a Simpsons episode is clearly a fair use of The Simpsons—and fair use
31
does not require the permission of anyone.
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1
So I asked Else why he didn’t just rely upon “fair use.” Here’s his reply:
2
3
The Simpsons ﬁasco was for me a great lesson in the gulf be-
4
tween what lawyers ﬁnd irrelevant in some abstract sense, and
5
what is crushingly relevant in practice to those of us actually
6
trying to make and broadcast documentaries. I never had any
7
doubt that it was “clearly fair use” in an absolute legal sense. But
8
I couldn’t rely on the concept in any concrete way. Here’s why:
9
10
1. Before our ﬁlms can be broadcast, the network requires
11
that we buy Errors and Omissions insurance. The carriers re-
12
quire a detailed “visual cue sheet” listing the source and licens-
13
ing status of each shot in the ﬁlm. They take a dim view of
14
“fair use,” and a claim of “fair use” can grind the application
15
process to a halt.
16
17
2. I probably never should have asked Matt Groening in the
18
ﬁrst place. But I knew (at least from folklore) that Fox had a
19
history of tracking down and stopping unlicensed Simpsons
20
usage, just as George Lucas had a very high proﬁle litigating
21
Star Wars usage. So I decided to play by the book, thinking
22
that we would be granted free or cheap license to four seconds
23
of Simpsons. As a documentary producer working to exhaus-
24
tion on a shoestring, the last thing I wanted was to risk legal
25
trouble, even nuisance legal trouble, and even to defend a
26
principle.
27
28
3. I did, in fact, speak with one of your colleagues at Stanford
29
Law School . . . who conﬁrmed that it was fair use. He also
30
conﬁrmed that Fox would “depose and litigate you to within
31
an inch of your life,” regardless of the merits of my claim. He
32S
made clear that it would boil down to who had the bigger le-
33R
gal department and the deeper pockets, me or them.
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4. The question of fair use usually comes up at the end of the
1
project, when we are up against a release deadline and out of
2
money.
3
4
In theory, fair use means you need no permission. The theory there-
5
fore supports free culture and insulates against a permission culture.
6
But in practice, fair use functions very differently. The fuzzy lines of
7
the law, tied to the extraordinary liability if lines are crossed, means
8
that the effective fair use for many types of creators is slight. The law
9
has the right aim; practice has defeated the aim.
10
This practice shows just how far the law has come from its
11
eighteenth-century roots. The law was born as a shield to protect pub-
12
lishers’ proﬁts against the unfair competition of a pirate. It has matured
13
into a sword that interferes with any use, transformative or not.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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29
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31
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14
15
CHAPTER EIGHT: Transformers
16
17Co
In 1993, Alex Alben was a lawyer working at Starwave, Inc. Star-
18
wave was an innovative company founded by Microsoft cofounder
19
Paul Allen to develop digital entertainment. Long before the Internet
20
became popular, Starwave began investing in new technology for de-
21
livering entertainment in anticipation of the power of networks.
22
Alben had a special interest in new technology. He was intrigued by
23
the emerging market for CD-ROM technology—not to distribute
24
ﬁlm, but to do things with ﬁlm that otherwise would be very difﬁcult.
25
In 1993, he launched an initiative to develop a product to build retro-
26
spectives on the work of particular actors. The ﬁrst actor chosen was
27
Clint Eastwood. The idea was to showcase all of the work of East-
28
wood, with clips from his ﬁlms and interviews with ﬁgures important
29
to his career.
30
At that time, Eastwood had made more than ﬁfty ﬁlms, as an actor
31
and as a director. Alben began with a series of interviews with East-
32S
wood, asking him about his career. Because Starwave produced those
33R
interviews, it was free to include them on the CD.
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That alone would not have made a very interesting product, so
1
Starwave wanted to add content from the movies in Eastwood’s career:
2
posters, scripts, and other material relating to the ﬁlms Eastwood
3
made. Most of his career was spent at Warner Brothers, and so it was
4
relatively easy to get permission for that content.
5
Then Alben and his team decided to include actual ﬁlm clips. “Our
6
goal was that we were going to have a clip from every one of East-
7
wood’s ﬁlms,” Alben told me. It was here that the problem arose. “No
8
one had ever really done this before,” Alben explained. “No one had
9
ever tried to do this in the context of an artistic look at an actor’s
10
career.”
11
Alben brought the idea to Michael Slade, the CEO of Starwave.
12
Slade asked, “Well, what will it take?”
13
Alben replied, “Well, we’re going to have to clear rights from
14
everyone who appears in these ﬁlms, and the music and everything
15
else that we want to use in these ﬁlm clips.” Slade said, “Great! Go
16
for it.”1
17
The problem was that neither Alben nor Slade had any idea what
18
clearing those rights would mean. Every actor in each of the ﬁlms
19
could have a claim to royalties for the reuse of that ﬁlm. But CD-
20
ROMs had not been speciﬁed in the contracts for the actors, so there
21
was no clear way to know just what Starwave was to do.
22
I asked Alben how he dealt with the problem. With an obvious
23
pride in his resourcefulness that obscured the obvious bizarreness of his
24
tale, Alben recounted just what they did:
25
26
So we very mechanically went about looking up the ﬁlm clips.
27
We made some artistic decisions about what ﬁlm clips to in-
28
clude—of course we were going to use the “Make my day” clip
29
from Dirty Harry. But you then need to get the guy on the ground
30
who’s wiggling under the gun and you need to get his permis-
31
sion. And then you have to decide what you are going to pay
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We decided that it would be fair if we offered them the day-
2
player rate for the right to reuse that performance. We’re talking
3
about a clip of less than a minute, but to reuse that performance
4
in the CD-ROM the rate at the time was about $600.
5
So we had to identify the people—some of them were hard to
6
identify because in Eastwood movies you can’t tell who’s the guy
7
crashing through the glass—is it the actor or is it the stuntman?
8
And then we just, we put together a team, my assistant and some
9
others, and we just started calling people.
10
11
Some actors were glad to help—Donald Sutherland, for example,
12
followed up himself to be sure that the rights had been cleared.
13
Others were dumbfounded at their good fortune. Alben would ask,
14
“Hey, can I pay you $600 or maybe if you were in two ﬁlms, you
15
know, $1,200?” And they would say, “Are you for real? Hey, I’d love
16
to get $1,200.” And some of course were a bit difﬁcult (estranged
17
ex-wives, in particular). But eventually, Alben and his team had
18
cleared the rights to this retrospective CD-ROM on Clint Eastwood’s
19
career.
20
It was one year later—“and even then we weren’t sure whether we
21
were totally in the clear.”
22
Alben is proud of his work. The project was the ﬁrst of its kind and
23
the only time he knew of that a team had undertaken such a massive
24
project for the purpose of releasing a retrospective.
25
26
Everyone thought it would be too hard. Everyone just threw up
27
their hands and said, “Oh, my gosh, a ﬁlm, it’s so many copy-
28
rights, there’s the music, there’s the screenplay, there’s the director,
29
there’s the actors.” But we just broke it down. We just put it into
30
its constituent parts and said, “Okay, there’s this many actors, this
31
many directors, . . . this many musicians,” and we just went at it
32S
very systematically and cleared the rights.
33R
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And no doubt, the product itself was exceptionally good. Eastwood
1
loved it, and it sold very well.
2
But I pressed Alben about how weird it seems that it would have to
3
take a year’s work simply to clear rights. No doubt Alben had done this
4
efﬁciently, but as Peter Drucker has famously quipped, “There is noth-
5
ing so useless as doing efﬁciently that which should not be done at
6
all.”2 Did it make sense, I asked Alben, that this is the way a new work
7
has to be made?
8
For, as he acknowledged, “very few . . . have the time and resources,
9
and the will to do this,” and thus, very few such works would ever be
10
made. Does it make sense, I asked him, from the standpoint of what
11
anybody really thought they were ever giving rights for originally, that
12
you would have to go clear rights for these kinds of clips?
13
14
I don’t think so. When an actor renders a performance in a movie,
15
he or she gets paid very well. . . . And then when 30 seconds of
16
that performance is used in a new product that is a retrospective
17
of somebody’s career, I don’t think that that person . . . should be
18
compensated for that.
19
20
Or at least, is this how the artist should be compensated? Would it
21
make sense, I asked, for there to be some kind of statutory license that
22
someone could pay and be free to make derivative use of clips like this?
23
Did it really make sense that a follow-on creator would have to track
24
down every artist, actor, director, musician, and get explicit permission
25
from each? Wouldn’t a lot more be created if the legal part of the cre-
26
ative process could be made to be more clean?
27
28
Absolutely. I think that if there were some fair-licensing mecha-
29
nism—where you weren’t subject to hold-ups and you weren’t
30
subject to estranged former spouses—you’d see a lot more of this
31
work, because it wouldn’t be so daunting to try to put together a
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retrospective of someone’s career and meaningfully illustrate it
2
with lots of media from that person’s career. You’d build in a cost
3
as the producer of one of these things. You’d build in a cost of pay-
4
ing X dollars to the talent that performed. But it would be a
5
known cost. That’s the thing that trips everybody up and makes
6
this kind of product hard to get off the ground. If you knew I have
7
a hundred minutes of ﬁlm in this product and it’s going to cost me
8
X, then you build your budget around it, and you can get invest-
9
ments and everything else that you need to produce it. But if you
10
say, “Oh, I want a hundred minutes of something and I have no
11
idea what it’s going to cost me, and a certain number of people are
12
going to hold me up for money,” then it becomes difﬁcult to put
13
one of these things together.
14
15
Alben worked for a big company. His company was backed by some
16
of the richest investors in the world. He therefore had authority and
17
access that the average Web designer would not have. So if it took him
18
a year, how long would it take someone else? And how much creativity
19
is never made just because the costs of clearing the rights are so high?
20
These costs are the burdens of a kind of regulation. Put on a Re-
21
publican hat for a moment, and get angry for a bit. The government
22
deﬁnes the scope of these rights, and the scope deﬁned determines
23
how much it’s going to cost to negotiate them. (Remember the idea
24
that land runs to the heavens, and imagine the pilot purchasing ﬂy-
25
through rights as he negotiates to ﬂy from Los Angeles to San Francisco.)
26
These rights might well have once made sense; but as circumstances
27
change, they make no sense at all. Or at least, a well-trained, regulation-
28
minimizing Republican should look at the rights and ask, “Does this
29
still make sense?”
30
I’ve seen the ﬂash of recognition when people get this point, but only
31
a few times. The ﬁrst was at a conference of federal judges in California.
32S
The judges were gathered to discuss the emerging topic of cyber-law. I
33R
was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
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from an L.A. ﬁrm, introduced the panel with a video that he and a
1
friend, Robert Fairbank, had produced.
2
The video was a brilliant collage of ﬁlm from every period in the
3
twentieth century, all framed around the idea of a 60 Minutes episode.
4
The execution was perfect, down to the sixty-minute stopwatch. The
5
judges loved every minute of it.
6
When the lights came up, I looked over to my copanelist, David
7
Nimmer, perhaps the leading copyright scholar and practitioner in the
8
nation. He had an astonished look on his face, as he peered across the
9
room of over 250 well-entertained judges. Taking an ominous tone, he
10
began his talk with a question: “Do you know how many federal laws
11
were just violated in this room?”
12
For of course, the two brilliantly talented creators who made this
13
ﬁlm hadn’t done what Alben did. They hadn’t spent a year clearing the
14
rights to these clips; technically, what they had done violated the law.
15
Of course, it wasn’t as if they or anyone were going to be prosecuted for
16
this violation (the presence of 250 judges and a gaggle of federal mar-
17
shals notwithstanding). But Nimmer was making an important point:
18
A year before anyone would have heard of the word Napster, and two
19
years before another member of our panel, David Boies, would defend
20
Napster before the Ninth Circuit Court of Appeals, Nimmer was try-
21
ing to get the judges to see that the law would not be friendly to the
22
capacities that this technology would enable. Technology means you
23
can now do amazing things easily; but you couldn’t easily do them
24
legally.
25
26
27
We live in a “cut and paste” culture enabled by technology. Anyone
28
building a presentation knows the extraordinary freedom that the cut
29
and paste architecture of the Internet created—in a second you can
30
ﬁnd just about any image you want; in another second, you can have it
31
planted in your presentation.
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But presentations are just a tiny beginning. Using the Internet and
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its archives, musicians are able to string together mixes of sound never
2
before imagined; ﬁlmmakers are able to build movies out of clips on
3
computers around the world. An extraordinary site in Sweden takes
4
images of politicians and blends them with music to create biting po-
5
litical commentary. A site called Camp Chaos has produced some of
6
the most biting criticism of the record industry that there is through
7
the mixing of Flash! and music.
8
All of these creations are technically illegal. Even if the creators
9
wanted to be “legal,” the cost of complying with the law is impossibly
10
high. Therefore, for the law-abiding sorts, a wealth of creativity is
11
never made. And for that part that is made, if it doesn’t follow the
12
clearance rules, it doesn’t get released.
13
To some, these stories suggest a solution: Let’s alter the mix of
14
rights so that people are free to build upon our culture. Free to add or
15
mix as they see ﬁt. We could even make this change without necessar-
16
ily requiring that the “free” use be free as in “free beer.” Instead, the sys-
17
tem could simply make it easy for follow-on creators to compensate
18
artists without requiring an army of lawyers to come along: a rule, for
19
example, that says “the royalty owed the copyright owner of an unreg-
20
istered work for the derivative reuse of his work will be a ﬂat 1 percent
21
of net revenues, to be held in escrow for the copyright owner.” Under
22
this rule, the copyright owner could beneﬁt from some royalty, but he
23
would not have the beneﬁt of a full property right (meaning the right
24
to name his own price) unless he registers the work.
25
Who could possibly object to this? And what reason would there be
26
for objecting? We’re talking about work that is not now being made;
27
which if made, under this plan, would produce new income for artists.
28
What reason would anyone have to oppose it?
29
30
31
In February 2003, DreamWorks studios announced an agree-
32S
ment with Mike Myers, the comic genius of Saturday Night Live and
33R
Austin Powers. According to the announcement, Myers and Dream-
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Works would work together to form a “unique ﬁlmmaking pact.” Under
1
the agreement, DreamWorks “will acquire the rights to existing motion
2
picture hits and classics, write new storylines and—with the use of state-
3
of-the-art digital technology—insert Myers and other actors into the
4
ﬁlm, thereby creating an entirely new piece of entertainment.”
5
The announcement called this “ﬁlm sampling.” As Myers ex-
6
plained, “Film Sampling is an exciting way to put an original spin on
7
existing ﬁlms and allow audiences to see old movies in a new light. Rap
8
artists have been doing this for years with music and now we are able
9
to take that same concept and apply it to ﬁlm.” Steven Spielberg is
10
quoted as saying, “If anyone can create a way to bring old ﬁlms to new
11
audiences, it is Mike.”
12
Spielberg is right. Film sampling by Myers will be brilliant. But if
13
you don’t think about it, you might miss the truly astonishing point
14
about this announcement. As the vast majority of our ﬁlm heritage re-
15
mains under copyright, the real meaning of the DreamWorks an-
16
nouncement is just this: It is Mike Myers and only Mike Myers who is
17
free to sample. Any general freedom to build upon the ﬁlm archive of
18
our culture, a freedom in other contexts presumed for us all, is now a
19
privilege reserved for the funny and famous—and presumably rich.
20
This privilege becomes reserved for two sorts of reasons. The ﬁrst
21
continues the story of the last chapter: the vagueness of “fair use.”
22
Much of “sampling” should be considered “fair use.” But few would
23
rely upon so weak a doctrine to create. That leads to the second reason
24
that the privilege is reserved for the few: The costs of negotiating the
25
legal rights for the creative reuse of content are astronomically high.
26
These costs mirror the costs with fair use: You either pay a lawyer to
27
defend your fair use rights or pay a lawyer to track down permissions
28
so you don’t have to rely upon fair use rights. Either way, the creative
29
process is a process of paying lawyers—again a privilege, or perhaps a
30
curse, reserved for the few.
31
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CHAPTER NINE: Collectors
16
17Co
In April 1996, millions of “bots”—computer codes designed to
18
“spider,” or automatically search the Internet and copy content—began
19
running across the Net. Page by page, these bots copied Internet-based
20
information onto a small set of computers located in a basement in San
21
Francisco’s Presidio. Once the bots ﬁnished the whole of the Internet,
22
they started again. Over and over again, once every two months, these
23
bits of code took copies of the Internet and stored them.
24
By October 2001, the bots had collected more than ﬁve years of
25
copies. And at a small announcement in Berkeley, California, the archive
26
that these copies created, the Internet Archive, was opened to the
27
world. Using a technology called “the Way Back Machine,” you could
28
enter a Web page, and see all of its copies going back to 1996, as well
29
as when those pages changed.
30
This is the thing about the Internet that Orwell would have appre-
31
ciated. In the dystopia described in 1984, old newspapers were con-
32S
stantly updated to assure that the current view of the world, approved
33R
of by the government, was not contradicted by previous news reports.
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Thousands of workers constantly reedited the past, meaning there was
1
no way ever to know whether the story you were reading today was the
2
story that was printed on the date published on the paper.
3
It’s the same with the Internet. If you go to a Web page today,
4
there’s no way for you to know whether the content you are reading is
5
the same as the content you read before. The page may seem the same,
6
but the content could easily be different. The Internet is Orwell’s li-
7
brary—constantly updated, without any reliable memory.
8
Until the Way Back Machine, at least. With the Way Back Ma-
9
chine, and the Internet Archive underlying it, you can see what the
10
Internet was. You have the power to see what you remember. More
11
importantly, perhaps, you also have the power to ﬁnd what you don’t
12
remember and what others might prefer you forget.1
13
14
15
We take it for granted that we can go back to see what we remem-
16
ber reading. Think about newspapers. If you wanted to study the reac-
17
tion of your hometown newspaper to the race riots in Watts in 1965,
18
or to Bull Connor’s water cannon in 1963, you could go to your public
19
library and look at the newspapers. Those papers probably exist on
20
microﬁche. If you’re lucky, they exist in paper, too. Either way, you
21
are free, using a library, to go back and remember—not just what it is
22
convenient to remember, but remember something close to the truth.
23
It is said that those who fail to remember history are doomed to re-
24
peat it. That’s not quite correct. We all forget history. The key is whether
25
we have a way to go back to rediscover what we forget. More directly, the
26
key is whether an objective past can keep us honest. Libraries help do
27
that, by collecting content and keeping it, for schoolchildren, for re-
28
searchers, for grandma. A free society presumes this knowedge.
29
The Internet was an exception to this presumption. Until the In-
30
ternet Archive, there was no way to go back. The Internet was the
31
quintessentially transitory medium. And yet, as it becomes more im-
S32
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portant to maintain in some historical form. It’s just bizarre to think that
2
we have scads of archives of newspapers from tiny towns around the
3
world, yet there is but one copy of the Internet—the one kept by the In-
4
ternet Archive.
5
Brewster Kahle is the founder of the Internet Archive. He was a very
6
successful Internet entrepreneur after he was a successful computer re-
7
searcher. In the 1990s, Kahle decided he had had enough business suc-
8
cess. It was time to become a different kind of success. So he launched
9
a series of projects designed to archive human knowledge. The Inter-
10
net Archive was just the ﬁrst of the projects of this Andrew Carnegie
11
of the Internet. By December of 2002, the archive had over 10 billion
12
pages, and it was growing at about a billion pages a month.
13
The Way Back Machine is the largest archive of human knowledge
14
in human history. At the end of 2002, it held “two hundred and thirty
15
terabytes of material”—and was “ten times larger than the Library of
16
Congress.” And this was just the ﬁrst of the archives that Kahle set
17
out to build. In addition to the Internet Archive, Kahle has been con-
18
structing the Television Archive. Television, it turns out, is even more
19
ephemeral than the Internet. While much of twentieth-century culture
20
was constructed through television, only a tiny proportion of that cul-
21
ture is available for anyone to see today. Three hours of news are re-
22
corded each evening by Vanderbilt University—thanks to a speciﬁc
23
exemption in the copyright law. That content is indexed, and is available
24
to scholars for a very low fee. “But other than that, [television] is almost
25
unavailable,” Kahle told me. “If you were Barbara Walters you could get
26
access to [the archives], but if you are just a graduate student?” As Kahle
27
put it,
28
29
Do you remember when Dan Quayle was interacting with Mur-
30
phy Brown? Remember that back and forth surreal experience of
31
a politician interacting with a ﬁctional television character? If you
32S
were a graduate student wanting to study that, and you wanted to
33R
get those original back and forth exchanges between the two, the
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60 Minutes episode that came out after it . . . it would be almost
1
impossible. . . . Those materials are almost unﬁndable. . . .
2
3
Why is that? Why is it that the part of our culture that is recorded
4
in newspapers remains perpetually accessible, while the part that is
5
recorded on videotape is not? How is it that we’ve created a world
6
where researchers trying to understand the effect of media on nineteenth-
7
century America will have an easier time than researchers trying to un-
8
derstand the effect of media on twentieth-century America?
9
In part, this is because of the law. Early in American copyright law,
10
copyright owners were required to deposit copies of their work in li-
11
braries. These copies were intended both to facilitate the spread of
12
knowledge and to assure that a copy of the work would be around once
13
the copyright expired, so that others might access and copy the work.
14
These rules applied to ﬁlm as well. But in 1915, the Library of Con-
15
gress made an exception for ﬁlm. Film could be copyrighted so long
16
as such deposits were made. But the ﬁlmmaker was then allowed to
17
borrow back the deposits—for an unlimited time at no cost. In 1915
18
alone, there were more than 5,475 ﬁlms deposited and “borrowed back.”
19
Thus, when the copyrights to ﬁlms expire, there is no copy held by any
20
library. The copy exists—if it exists at all—in the library archive of the
21
ﬁlm company.2
22
The same is generally true about television. Television broadcasts
23
were originally not copyrighted—there was no way to capture the
24
broadcasts, so there was no fear of “theft.” But as technology enabled
25
capturing, broadcasters relied increasingly upon the law. The law re-
26
quired they make a copy of each broadcast for the work to be “copy-
27
righted.” But those copies were simply kept by the broadcasters. No
28
library had any right to them; the government didn’t demand them.
29
The content of this part of American culture is practically invisible to
30
anyone who would look.
31
Kahle was eager to correct this. Before September 11, 2001, he and
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tions from around the world and hit the Record button. After Septem-
2
ber 11, Kahle, working with dozens of others, selected twenty stations
3
from around the world and, beginning October 11, 2001, made their
4
coverage during the week of September 11 available free on-line. Any-
5
one could see how news reports from around the world covered the
6
events of that day.
7
Kahle had the same idea with ﬁlm. Working with Rick Prelinger,
8
whose archive of ﬁlm includes close to 45,000 “ephemeral ﬁlms”
9
(meaning ﬁlms other than Hollywood movies, ﬁlms that were never
10
copyrighted), Kahle established the Movie Archive. Prelinger let Kahle
11
digitize 1,300 ﬁlms in this archive and post those ﬁlms on the Internet
12
to be downloaded for free. Prelinger’s is a for-proﬁt company. It sells
13
copies of these ﬁlms as stock footage. What he has discovered is that
14
after he made a signiﬁcant chunk available for free, his stock footage
15
sales went up dramatically. People could easily ﬁnd the material they
16
wanted to use. Some downloaded that material and made ﬁlms on
17
their own. Others purchased copies to enable other ﬁlms to be made.
18
Either way, the archive enabled access to this important part of our cul-
19
ture. Want to see a copy of the “Duck and Cover” ﬁlm that instructed
20
children how to save themselves in the middle of nuclear attack? Go to
21
archive.org, and you can download the ﬁlm in a few minutes—for free.
22
Here again, Kahle is providing access to a part of our culture that
23
we otherwise could not get easily, if at all. It is yet another part of what
24
deﬁnes the twentieth century that we have lost to history. The law
25
doesn’t require these copies to be kept by anyone, or to be deposited in
26
an archive by anyone. Therefore, there is no simple way to ﬁnd them.
27
The key here is access, not price. Kahle wants to enable free access to
28
this content, but he also wants to enable others to sell access to it. His
29
aim is to ensure competition in access to this important part of our cul-
30
ture. Not during the commercial life of a bit of creative property, but dur-
31
ing a second life that all creative property has—a noncommercial life.
32S
For here is an idea that we should more clearly recognize. Every bit
33R
of creative property goes through different “lives.” In its ﬁrst life, if the
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creator is lucky, the content is sold. In such cases the commercial mar-
1
ket is successful for the creator. The vast majority of creative property
2
doesn’t enjoy such success, but some clearly does. For that content,
3
commercial life is extremely important. Without this commercial mar-
4
ket, there would be, many argue, much less creativity.
5
After the commercial life of creative property has ended, our tradi-
6
tion has always supported a second life as well. A newspaper delivers
7
the news every day to the doorsteps of America. The very next day, it is
8
used to wrap ﬁsh or to ﬁll boxes with fragile gifts or to build an archive
9
of knowledge about our history. In this second life, the content can
10
continue to inform even if that information is no longer sold.
11
The same has always been true about books. A book goes out of
12
print very quickly (the average today is after about a year3). After it is
13
out of print, it can be sold in used book stores without the copyright
14
owner getting anything and stored in libraries, where many get to read
15
the book, also for free. Used book stores and libraries are thus the sec-
16
ond life of a book. That second life is extremely important to the
17
spread and stability of culture.
18
Yet increasingly, any assumption about a stable second life for cre-
19
ative property does not hold true with the most important components
20
of popular culture in the twentieth and twenty-ﬁrst centuries. For
21
these—television, movies, music, radio, the Internet—there is no guar-
22
antee of a second life. For these sorts of culture, it is as if we’ve replaced
23
libraries with Barnes & Noble superstores. With this culture, what’s
24
accessible is nothing but what a certain limited market demands. Be-
25
yond that, culture disappears.
26
27
28
For most of the twentieth century, it was economics that made this
29
so. It would have been insanely expensive to collect and make accessi-
30
ble all television and ﬁlm and music: The cost of analog copies is ex-
31
traordinarily high. So even though the law in principle would have
S32
restricted the ability of a Brewster Kahle to copy culture generally, the
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real restriction was economics. The market made it impossibly difﬁcult
2
to do anything about this ephemeral culture; the law had little practi-
3
cal effect.
4
Perhaps the single most important feature of the digital revolution
5
is that for the ﬁrst time since the Library of Alexandria, it is feasible to
6
imagine constructing archives that hold all culture produced or distrib-
7
uted publicly. Technology makes it possible to imagine an archive of all
8
books published, and increasingly makes it possible to imagine an
9
archive of all moving images and sound.
10
The scale of this potential archive is something we’ve never imag-
11
ined before. The Brewster Kahles of our history have dreamed about it;
12
but we are for the ﬁrst time at a point where that dream is possible. As
13
Kahle describes,
14
15
It looks like there’s about two to three million recordings of mu-
16
sic. Ever. There are about a hundred thousand theatrical releases
17
of movies, . . . and about one to two million movies [distributed]
18
during the twentieth century. There are about twenty-six million
19
different titles of books. All of these would ﬁt on computers that
20
would ﬁt in this room and be able to be afforded by a small com-
21
pany. So we’re at a turning point in our history. Universal access is
22
the goal. And the opportunity of leading a different life, based on
23
this, is . . . thrilling. It could be one of the things humankind
24
would be most proud of. Up there with the Library of Alexandria,
25
putting a man on the moon, and the invention of the printing
26
press.
27
28
Kahle is not the only librarian. The Internet Archive is not the only
29
archive. But Kahle and the Internet Archive suggest what the future of
30
libraries or archives could be. When the commercial life of creative
31
property ends, I don’t know. But it does. And whenever it does, Kahle
32S
and his archive hint at a world where this knowledge, and culture, re-
33R
mains perpetually available. Some will draw upon it to understand it;
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some to criticize it. Some will use it, as Walt Disney did, to re-create
1
the past for the future. These technologies promise something that had
2
become unimaginable for much of our past—a future for our past. The
3
technology of digital arts could make the dream of the Library of
4
Alexandria real again.
5
Technologists have thus removed the economic costs of building
6
such an archive. But lawyers’ costs remain. For as much as we might
7
like to call these “archives,” as warm as the idea of a “library” might
8
seem, the “content” that is collected in these digital spaces is also some-
9
one’s “property.” And the law of property restricts the freedoms that
10
Kahle and others would exercise.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
CHAPTER TEN: “Property”
16
17Co
Jack Valenti has been the president of the Motion Picture Asso-
18
ciation of America since 1966. He ﬁrst came to Washington, D.C.,
19
with Lyndon Johnson’s administration—literally. The famous picture
20
of Johnson’s swearing-in on Air Force One after the assassination of
21
President Kennedy has Valenti in the background. In his almost forty
22
years of running the MPAA, Valenti has established himself as perhaps
23
the most prominent and effective lobbyist in Washington.
24
The MPAA is the American branch of the international Motion
25
Picture Association. It was formed in 1922 as a trade association whose
26
goal was to defend American movies against increasing domestic crit-
27
icism. The organization now represents not only ﬁlmmakers but pro-
28
ducers and distributors of entertainment for television, video, and
29
cable. Its board is made up of the chairmen and presidents of the seven
30
major producers and distributors of motion picture and television pro-
31
grams in the United States: Walt Disney, Sony Pictures Entertain-
32S
ment, MGM, Paramount Pictures, Twentieth Century Fox, Universal
33R
Studios, and Warner Brothers.
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Valenti is only the third president of the MPAA. No president
1
before him has had as much inﬂuence over that organization, or over
2
Washington. As a Texan, Valenti has mastered the single most impor-
3
tant political skill of a Southerner—the ability to appear simple and
4
slow while hiding a lightning-fast intellect. To this day, Valenti plays
5
the simple, humble man. But this Harvard MBA, and author of four
6
books, who ﬁnished high school at the age of ﬁfteen and ﬂew more
7
than ﬁfty combat missions in World War II, is no Mr. Smith. When
8
Valenti went to Washington, he mastered the city in a quintessentially
9
Washingtonian way.
10
In defending artistic liberty and the freedom of speech that our cul-
11
ture depends upon, the MPAA has done important good. In crafting
12
the MPAA rating system, it has probably avoided a great deal of
13
speech-regulating harm. But there is an aspect to the organization’s
14
mission that is both the most radical and the most important. This is
15
the organization’s effort, epitomized in Valenti’s every act, to redeﬁne
16
the meaning of “creative property.”
17
In 1982, Valenti’s testimony to Congress captured the strategy per-
18
fectly:
19
20
No matter the lengthy arguments made, no matter the charges
21
and the counter-charges, no matter the tumult and the shouting,
22
reasonable men and women will keep returning to the fundamen-
23
tal issue, the central theme which animates this entire debate: Cre-
24
ative property owners must be accorded the same rights and protection
25
resident in all other property owners in the nation. That is the issue.
26
That is the question. And that is the rostrum on which this entire
27
hearing and the debates to follow must rest.1
28
29
The strategy of this rhetoric, like the strategy of most of Valenti’s
30
rhetoric, is brilliant and simple and brilliant because simple. The “cen-
31
tral theme” to which “reasonable men and women” will return is this:
S32
“Creative property owners must be accorded the same rights and pro-
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tections resident in all other property owners in the nation.” There are
2
no second-class citizens, Valenti might have continued. There should
3
be no second-class property owners.
4
This claim has an obvious and powerful intuitive pull. It is stated
5
with such clarity as to make the idea as obvious as the notion that we
6
use elections to pick presidents. But in fact, there is no more extreme a
7
claim made by anyone who is serious in this debate than this claim of
8
Valenti’s. Jack Valenti, however sweet and however brilliant, is perhaps
9
the nation’s foremost extremist when it comes to the nature and scope
10
of “creative property.” His views have no reasonable connection to our
11
actual legal tradition, even if the subtle pull of his Texan charm has
12
slowly redeﬁned that tradition, at least in Washington.
13
While “creative property” is certainly “property” in a nerdy and pre-
14
cise sense that lawyers are trained to understand,2 it has never been the
15
case, nor should it be, that “creative property owners” have been “ac-
16
corded the same rights and protection resident in all other property
17
owners.” Indeed, if creative property owners were given the same rights
18
as all other property owners, that would effect a radical, and radically
19
undesirable, change in our tradition.
20
Valenti knows this. But he speaks for an industry that cares squat
21
for our tradition and the values it represents. He speaks for an industry
22
that is instead ﬁghting to restore the tradition that the British over-
23
turned in 1710. In the world that Valenti’s changes would create, a
24
powerful few would exercise powerful control over how our creative
25
culture would develop.
26
I have two purposes in this chapter. The ﬁrst is to convince you
27
that, historically, Valenti’s claim is absolutely wrong. The second is to
28
convince you that it would be terribly wrong for us to reject our his-
29
tory. We have always treated rights in creative property differently
30
from the rights resident in all other property owners. They have never
31
been the same. And they should never be the same, because, however
32S
counterintuitive this may seem, to make them the same would be to
33R
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fundamentally weaken the opportunity for new creators to create. Cre-
1
ativity depends upon the owners of creativity having less than perfect
2
control.
3
Organizations such as the MPAA, whose board includes the most
4
powerful of the old guard, have little interest, their rhetoric notwith-
5
standing, in assuring that the new can displace them. No organization
6
does. No person does. (Ask me about tenure, for example.) But what’s
7
good for the MPAA is not necessarily good for America. A society that
8
defends the ideals of free culture must preserve precisely the opportu-
9
nity for new creativity to threaten the old.
10
11
12
To get just a hint that there is something fundamentally wrong in
13
Valenti’s argument, we need look no further than the United States
14
Constitution itself.
15
The framers of our Constitution loved “property.” Indeed, so
16
strongly did they love property that they built into the Constitution an
17
important requirement. If the government takes your property—if it
18
condemns your house, or acquires a slice of land from your farm—it is
19
required, under the Fifth Amendment’s “Takings Clause,” to pay you
20
“just compensation” for that taking. The Constitution thus guarantees
21
that property is, in a certain sense, sacred. It cannot ever be taken from
22
the property owner unless the government pays for the privilege.
23
Yet the very same Constitution speaks very differently about what
24
Valenti calls “creative property.” In the clause granting Congress the
25
power to create “creative property,” the Constitution requires that after
26
a “limited time,” Congress take back the rights that it has granted and
27
set the “creative property” free to the public domain. Yet when Con-
28
gress does this, when the expiration of a copyright term “takes” your
29
copyright and turns it over to the public domain, Congress does not
30
have any obligation to pay “just compensation” for this “taking.” In-
31
stead, the same Constitution that requires compensation for your land
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requires that you lose your “creative property” right without any com-
2
pensation at all.
3
The Constitution thus on its face states that these two forms of
4
property are not to be accorded the same rights. They are plainly to be
5
treated differently. Valenti is therefore not just asking for a change in
6
our tradition when he argues that creative-property owners should be
7
accorded the same rights as every other property-right owner. He is ef-
8
fectively arguing for a change in our Constitution itself.
9
Arguing for a change in our Constitution is not necessarily wrong.
10
There was much in our original Constitution that was plainly wrong.
11
The Constitution of 1789 entrenched slavery; it left senators to be ap-
12
pointed rather than elected; it made it possible for the electoral college
13
to produce a tie between the president and his own vice president (as it
14
did in 1800). The framers were no doubt extraordinary, but I would be
15
the ﬁrst to admit that they made big mistakes. We have since rejected
16
some of those mistakes; no doubt there could be others that we should
17
reject as well. So my argument is not simply that because Jefferson did
18
it, we should, too.
19
Instead, my argument is that because Jefferson did it, we should at
20
least try to understand why. Why did the framers, fanatical property
21
types that they were, reject the claim that creative property be given the
22
same rights as all other property? Why did they require that for cre-
23
ative property there must be a public domain?
24
To answer this question, we need to get some perspective on the his-
25
tory of these “creative property” rights, and the control that they en-
26
abled. Once we see clearly how differently these rights have been
27
deﬁned, we will be in a better position to ask the question that should
28
be at the core of this war: Not whether creative property should be pro-
29
tected, but how. Not whether we will enforce the rights the law gives to
30
creative-property owners, but what the particular mix of rights ought to
31
be. Not whether artists should be paid, but whether institutions designed
32S
to assure that artists get paid need also control how culture develops.
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To answer these questions, we need a more general way to talk
1
about how property is protected. More precisely, we need a more gen-
2
eral way than the narrow language of the law allows. In Code and Other
3
Laws of Cyberspace, I used a simple model to capture this more general
4
perspective. For any particular right or regulation, this model asks how
5
four different modalities of regulation interact to support or weaken
6
the right or regulation. I represented it with this diagram:
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
At the center of this picture is a regulated dot: the individual or
23
group that is the target of regulation, or the holder of a right. (In each
24
case throughout, we can describe this either as regulation or as a right.
25
For simplicity’s sake, I will speak only of regulations.) The ovals repre-
26
sent four ways in which the individual or group might be regulated—
27
either constrained or, alternatively, enabled. Law is the most obvious
28
constraint (to lawyers, at least). It constrains by threatening punish-
29
ments after the fact if the rules set in advance are violated. So if, for ex-
30
ample, you willfully infringe Madonna’s copyright by copying a song
31
from her latest CD and posting it on the Web, you can be punished
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with a $150,000 ﬁne. The ﬁne is an ex post punishment for violating
2
an ex ante rule. It is imposed by the state.
3
Norms are a different kind of constraint. They, too, punish an indi-
4
vidual for violating a rule. But the punishment of a norm is imposed by
5
a community, not (or not only) by the state. There may be no law
6
against spitting, but that doesn’t mean you won’t be punished if you
7
spit on the ground while standing in line at a movie. The punishment
8
might not be harsh, though depending upon the community, it could
9
easily be more harsh than many of the punishments imposed by the
10
state. The mark of the difference is not the severity of the rule, but the
11
source of the enforcement.
12
The market is a third type of constraint. Its constraint is effected
13
through conditions: You can do X if you pay Y; you’ll be paid M if
14
you do N. These constraints are obviously not independent of law or
15
norms—it is property law that deﬁnes what must be bought if it is to be
16
taken legally; it is norms that say what is appropriately sold. But given a
17
set of norms, and a background of property and contract law, the mar-
18
ket imposes a simultaneous constraint upon how an individual or group
19
might behave.
20
Finally, and for the moment, perhaps, most mysteriously, “archi-
21
tecture”—the physical world as one ﬁnds it—is a constraint on be-
22
havior. A fallen bridge might constrain your ability to get across a
23
river. Railroad tracks might constrain the ability of a community to
24
integrate its social life. As with the market, architecture does not ef-
25
fect its constraint through ex post punishments. Instead, also as with
26
the market, architecture effects its constraint through simultaneous
27
conditions. These conditions are imposed not by courts enforcing con-
28
tracts, or by police punishing theft, but by nature, by “architecture.”
29
If a 500-pound boulder blocks your way, it is the law of gravity that
30
enforces this constraint. If a $500 airplane ticket stands between
31
you and a ﬂight to New York, it is the market that enforces this con-
32S
straint.
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So the ﬁrst point about these four modalities of regulation is obvi-
1
ous: They interact. Restrictions imposed by one might be reinforced
2
by another. Or restrictions imposed by one might be undermined by
3
another.
4
The second point follows directly: If we want to understand the
5
effective freedom that anyone has at a given moment to do any partic-
6
ular thing, we have to consider how these four modalities interact.
7
Whether or not there are other constraints (there may well be; my
8
claim is not about comprehensiveness), these four are among the most
9
signiﬁcant, and any regulator (whether controlling or freeing) must
10
consider how these four in particular interact.
11
So, for example, consider the “freedom” to drive a car at a high
12
speed. That freedom is in part restricted by laws: speed limits that say
13
how fast you can drive in particular places at particular times. It is in
14
part restricted by architecture: speed bumps, for example, slow most ra-
15
tional drivers; governors in buses, as another example, set the maxi-
16
mum rate at which the driver can drive. The freedom is in part restricted
17
by the market: Fuel efﬁciency drops as speed increases, thus the price of
18
gasoline indirectly constrains speed. And ﬁnally, the norms of a com-
19
munity may or may not constrain the freedom to speed. Drive at 50
20
mph by a school in your own neighborhood and you’re likely to be
21
punished by the neighbors. The same norm wouldn’t be as effective in
22
a different town, or at night.
23
The ﬁnal point about this simple model should also be fairly clear:
24
While these four modalities are analytically independent, law has a
25
special role in affecting the three.3 The law, in other words, sometimes
26
operates to increase or decrease the constraint of a particular modality.
27
Thus, the law might be used to increase taxes on gasoline, so as to in-
28
crease the incentives to drive more slowly. The law might be used to
29
mandate more speed bumps, so as to increase the difﬁculty of driving
30
rapidly. The law might be used to fund ads that stigmatize reckless
31
driving. Or the law might be used to require that other laws be more
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
strict—a federal requirement that states decrease the speed limit, for
18
example—so as to decrease the attractiveness of fast driving.
19
These constraints can thus change, and they can be changed. To
20
understand the effective protection of liberty or protection of property
21
at any particular moment, we must track these changes over time. A re-
22
striction imposed by one modality might be erased by another. A free-
23
dom enabled by one modality might be displaced by another.4
24
25
26
Why Hollywood Is Right
27
28
The most obvious point that this model reveals is just why, or just
29
how, Hollywood is right. The copyright warriors have rallied Congress
30
and the courts to defend copyright. This model helps us see why that
31
rallying makes sense.
32S
Let’s say this is the picture of copyright’s regulation before the In-
33R
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2
3
4
5
6
7
8
9
10
11
12
13
14
There is balance between law, norms, market, and architecture. The
15
law limits the ability to copy and share content, by imposing penalties
16
on those who copy and share content. Those penalties are reinforced by
17
technologies that make it hard to copy and share content (architecture)
18
and expensive to copy and share content (market). Finally, those penal-
19
ties are mitigated by norms we all recognize—kids, for example, taping
20
other kids’ records. These uses of copyrighted material may well be in-
21
fringement, but the norms of our society (before the Internet, at least)
22
had no problem with this form of infringement.
23
Enter the Internet, or, more precisely, technologies such as MP3s
24
and p2p sharing. Now the constraint of architecture changes dramati-
25
cally, as does the constraint of the market. And as both the market and
26
architecture relax the regulation of copyright, norms pile on. The
27
happy balance (for the warriors, at least) of life before the Internet be-
28
comes an effective state of anarchy after the Internet.
29
Thus the sense of, and justiﬁcation for, the warriors’ response. Tech-
30
nology has changed, the warriors say, and the effect of this change,
31
when ramiﬁed through the market and norms, is that a balance of pro-
S32
tection for the copyright owners’ rights has been lost. This is Iraq
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
after the fall of Saddam, but this time no government is justifying the
16
looting that results.
17
Neither this analysis nor the conclusions that follow are new to the
18
warriors. Indeed, in a “White Paper” prepared by the Commerce De-
19
partment (one heavily inﬂuenced by the copyright warriors) in 1995,
20
this mix of regulatory modalities had already been identiﬁed and the
21
strategy to respond already mapped. In response to the changes the In-
22
ternet had effected, the White Paper argued (1) Congress should
23
strengthen intellectual property law, (2) businesses should adopt inno-
24
vative marketing techniques, (3) technologists should push to develop
25
code to protect copyrighted material, and (4) educators should educate
26
kids to better protect copyright.
27
This mixed strategy is just what copyright needed—if it was to pre-
28
serve the particular balance that existed before the change induced by
29
the Internet. And it’s just what we should expect the content industry
30
to push for. It is as American as apple pie to consider the happy life
31
you have as an entitlement, and to look to the law to protect it if some-
32S
thing comes along to change that happy life. Homeowners living in a
33R
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ﬂood plain have no hesitation appealing to the government to rebuild
1
(and rebuild again) when a ﬂood (architecture) wipes away their prop-
2
erty (law). Farmers have no hesitation appealing to the government to
3
bail them out when a virus (architecture) devastates their crop. Unions
4
have no hesitation appealing to the government to bail them out when
5
imports (market) wipe out the U.S. steel industry.
6
Thus, there’s nothing wrong or surprising in the content industry’s
7
campaign to protect itself from the harmful consequences of a techno-
8
logical innovation. And I would be the last person to argue that the
9
changing technology of the Internet has not had a profound effect on the
10
content industry’s way of doing business, or as John Seely Brown de-
11
scribes it, its “architecture of revenue.”
12
But just because a particular interest asks for government support,
13
it doesn’t follow that support should be granted. And just because tech-
14
nology has weakened a particular way of doing business, it doesn’t fol-
15
low that the government should intervene to support that old way of
16
doing business. Kodak, for example, has lost perhaps as much as 20
17
percent of their traditional ﬁlm market to the emerging technologies
18
of digital cameras.5 Does anyone believe the government should ban
19
digital cameras just to support Kodak? Highways have weakened the
20
freight business for railroads. Does anyone think we should ban trucks
21
from roads for the purpose of protecting the railroads? Closer to the sub-
22
ject of this book, remote channel changers have weakened the “sticki-
23
ness” of television advertising (if a boring commercial comes on the
24
TV, the remote makes it easy to surf ), and it may well be that this
25
change has weakened the television advertising market. But does any-
26
one believe we should regulate remotes to reinforce commercial televi-
27
sion? (Maybe by limiting them to function only once a second, or to
28
switch to only ten channels within an hour?)
29
The obvious answer to these obviously rhetorical questions is no.
30
In a free society, with a free market, supported by free enterprise and
31
free trade, the government’s role is not to support one way of doing
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1
business against others. Its role is not to pick winners and protect
2
them against loss. If the government did this generally, then we would
3
never have any progress. As Microsoft chairman Bill Gates wrote in
4
1991, in a memo criticizing software patents, “established companies
5
have an interest in excluding future competitors.”6 And relative to a
6
startup, established companies also have the means. (Think RCA and
7
FM radio.) A world in which competitors with new ideas must ﬁght
8
not only the market but also the government is a world in which
9
competitors with new ideas will not succeed. It is a world of stasis and
10
increasingly concentrated stagnation. It is the Soviet Union under
11
Brezhnev.
12
Thus, while it is understandable for industries threatened with new
13
technologies that change the way they do business to look to the gov-
14
ernment for protection, it is the special duty of policy makers to guar-
15
antee that that protection not become a deterrent to progress. It is the
16
duty of policy makers, in other words, to assure that the changes they
17
create, in response to the request of those hurt by changing technology,
18
are changes that preserve the incentives and opportunities for innova-
19
tion and change.
20
In the context of laws regulating speech—which include, obviously,
21
copyright law—that duty is even stronger. When the industry com-
22
plaining about changing technologies is asking Congress to respond in
23
a way that burdens speech and creativity, policy makers should be es-
24
pecially wary of the request. It is always a bad deal for the government
25
to get into the business of regulating speech markets. The risks and
26
dangers of that game are precisely why our framers created the First
27
Amendment to our Constitution: “Congress shall make no law . . .
28
abridging the freedom of speech.” So when Congress is being asked to
29
pass laws that would “abridge” the freedom of speech, it should ask—
30
carefully—whether such regulation is justiﬁed.
31
My argument just now, however, has nothing to do with whether
32S
the changes that are being pushed by the copyright warriors are “justi-
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ﬁed.” My argument is about their effect. For before we get to the ques-
1
tion of justiﬁcation, a hard question that depends a great deal upon
2
your values, we should ﬁrst ask whether we understand the effect of the
3
changes the content industry wants.
4
Here’s the metaphor that will capture the argument to follow.
5
In 1873, the chemical DDT was ﬁrst synthesized. In 1948, Swiss
6
chemist Paul Hermann Müller won the Nobel Prize for his work
7
demonstrating the insecticidal properties of DDT. By the 1950s, the
8
insecticide was widely used around the world to kill disease-carrying
9
pests. It was also used to increase farm production.
10
No one doubts that killing disease-carrying pests or increasing crop
11
production is a good thing. No one doubts that the work of Müller was
12
important and valuable and probably saved lives, possibly millions.
13
But in 1962, Rachel Carson published Silent Spring, which argued
14
that DDT, whatever its primary beneﬁts, was also having unintended
15
environmental consequences. Birds were losing the ability to repro-
16
duce. Whole chains of the ecology were being destroyed.
17
No one set out to destroy the environment. Paul Müller certainly
18
did not aim to harm any birds. But the effort to solve one set of prob-
19
lems produced another set which, in the view of some, was far worse
20
than the problems that were originally attacked. Or more accurately,
21
the problems DDT caused were worse than the problems it solved, at
22
least when considering the other, more environmentally friendly ways
23
to solve the problems that DDT was meant to solve.
24
It is to this image precisely that Duke University law professor James
25
Boyle appeals when he argues that we need an “environmentalism” for
26
culture.7 His point, and the point I want to develop in the balance of
27
this chapter, is not that the aims of copyright are ﬂawed. Or that au-
28
thors should not be paid for their work. Or that music should be given
29
away “for free.” The point is that some of the ways in which we might
30
protect authors will have unintended consequences for the cultural en-
31
vironment, much like DDT had for the natural environment. And just
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1
as criticism of DDT is not an endorsement of malaria or an attack on
2
farmers, so, too, is criticism of one particular set of regulations protect-
3
ing copyright not an endorsement of anarchy or an attack on authors.
4
It is an environment of creativity that we seek, and we should be aware
5
of our actions’ effects on the environment.
6
My argument, in the balance of this chapter, tries to map exactly
7
this effect. No doubt the technology of the Internet has had a dramatic
8
effect on the ability of copyright owners to protect their content. But
9
there should also be little doubt that when you add together the
10
changes in copyright law over time, plus the change in technology that
11
the Internet is undergoing just now, the net effect of these changes will
12
not be only that copyrighted work is effectively protected. Also, and
13
generally missed, the net effect of this massive increase in protection
14
will be devastating to the environment for creativity.
15
In a line: To kill a gnat, we are spraying DDT with consequences
16
for free culture that will be far more devastating than that this gnat will
17
be lost.
18
19
20
Beginnings
21
22
America copied English copyright law. Actually, we copied and im-
23
proved English copyright law. Our Constitution makes the purpose of
24
“creative property” rights clear; its express limitations reinforce the En-
25
glish aim to avoid overly powerful publishers.
26
The power to establish “creative property” rights is granted to Con-
27
gress in a way that, for our Constitution, at least, is very odd. Article I,
28
section 8, clause 8 of our Constitution states that:
29
30
Congress has the power to promote the Progress of Science and
31
useful Arts, by securing for limited Times to Authors and Inventors
32S
the exclusive Right to their respective Writings and Discoveries.
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We can call this the “Progress Clause,” for notice what this clause does
1
not say. It does not say Congress has the power to grant “creative prop-
2
erty rights.” It says that Congress has the power to promote progress. The
3
grant of power is its purpose, and its purpose is a public one, not the
4
purpose of enriching publishers, nor even primarily the purpose of re-
5
warding authors.
6
The Progress Clause expressly limits the term of copyrights. As we
7
saw in chapter 6, the English limited the term of copyright so as to as-
8
sure that a few would not exercise disproportionate control over culture
9
by exercising disproportionate control over publishing. We can assume
10
the framers followed the English for a similar purpose. Indeed, unlike
11
the English, the framers reinforced that objective, by requiring that
12
copyrights extend “to Authors” only.
13
The design of the Progress Clause reﬂects something about the
14
Constitution’s design in general. To avoid a problem, the framers built
15
structure. To prevent the concentrated power of publishers, they built
16
a structure that kept copyrights away from publishers and kept them
17
short. To prevent the concentrated power of a church, they banned the
18
federal government from establishing a church. To prevent concentrat-
19
ing power in the federal government, they built structures to reinforce
20
the power of the states—including the Senate, whose members were
21
at the time selected by the states, and an electoral college, also selected
22
by the states, to select the president. In each case, a structure built
23
checks and balances into the constitutional frame, structured to pre-
24
vent otherwise inevitable concentrations of power.
25
I doubt the framers would recognize the regulation we call “copy-
26
right” today. The scope of that regulation is far beyond anything they
27
ever considered. To begin to understand what they did, we need to put
28
our “copyright” in context: We need to see how it has changed in the
29
210 years since they ﬁrst struck its design.
30
Some of these changes come from the law: some in light of changes
31
in technology, and some in light of changes in technology given a
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1
particular concentration of market power. In terms of our model, we
2
started here:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
We will end here:
19
20
21
22
23
24
25
26
27
28
29
30
31
32S
33R
Let me explain how.
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Law: Duration
1
2
When the ﬁrst Congress enacted laws to protect creative property, it
3
faced the same uncertainty about the status of creative property that
4
the English had confronted in 1774. Many states had passed laws pro-
5
tecting creative property, and some believed that these laws simply
6
supplemented common law rights that already protected creative au-
7
thorship.8 This meant that there was no guaranteed public domain in
8
the United States in 1790. If copyrights were protected by the com-
9
mon law, then there was no simple way to know whether a work pub-
10
lished in the United States was controlled or free. Just as in England,
11
this lingering uncertainty would make it hard for publishers to rely
12
upon a public domain to reprint and distribute works.
13
That uncertainty ended after Congress passed legislation granting
14
copyrights. Because federal law overrides any contrary state law, federal
15
protections for copyrighted works displaced any state law protections.
16
Just as in England the Statute of Anne eventually meant that the copy-
17
rights for all English works expired, a federal statute meant that any
18
state copyrights expired as well.
19
In 1790, Congress enacted the ﬁrst copyright law. It created a fed-
20
eral copyright and secured that copyright for fourteen years. If the au-
21
thor was alive at the end of that fourteen years, then he could opt to
22
renew the copyright for another fourteen years. If he did not renew the
23
copyright, his work passed into the public domain.
24
While there were many works created in the United States in the
25
ﬁrst ten years of the Republic, only 5 percent of the works were actu-
26
ally registered under the federal copyright regime. Of all the work cre-
27
ated in the United States both before 1790 and from 1790 through
28
1800, 95 percent immediately passed into the public domain; the bal-
29
ance would pass into the pubic domain within twenty-eight years at
30
most, and more likely within fourteen years.9
31
This system of renewal was a crucial part of the American system
S32
of copyright. It assured that the maximum terms of copyright would be
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1
granted only for works where they were wanted. After the initial term
2
of fourteen years, if it wasn’t worth it to an author to renew his copy-
3
right, then it wasn’t worth it to society to insist on the copyright, either.
4
Fourteen years may not seem long to us, but for the vast majority of
5
copyright owners at that time, it was long enough: Only a small mi-
6
nority of them renewed their copyright after fourteen years; the bal-
7
ance allowed their work to pass into the public domain.10
8
Even today, this structure would make sense. Most creative work
9
has an actual commercial life of just a couple of years. Most books fall
10
out of print after one year.11 When that happens, the used books are
11
traded free of copyright regulation. Thus the books are no longer effec-
12
tively controlled by copyright. The only practical commercial use of the
13
books at that time is to sell the books as used books; that use—because
14
it does not involve publication—is effectively free.
15
In the ﬁrst hundred years of the Republic, the term of copyright
16
was changed once. In 1831, the term was increased from a maximum
17
of 28 years to a maximum of 42 by increasing the initial term of copy-
18
right from 14 years to 28 years. In the next ﬁfty years of the Republic,
19
the term increased once again. In 1909, Congress extended the renewal
20
term of 14 years to 28 years, setting a maximum term of 56 years.
21
Then, beginning in 1962, Congress started a practice that has de-
22
ﬁned copyright law since. Eleven times in the last forty years, Congress
23
has extended the terms of existing copyrights; twice in those forty
24
years, Congress extended the term of future copyrights. Initially, the
25
extensions of existing copyrights were short, a mere one to two years.
26
In 1976, Congress extended all existing copyrights by nineteen years.
27
And in 1998, in the Sonny Bono Copyright Term Extension Act,
28
Congress extended the term of existing and future copyrights by
29
twenty years.
30
The effect of these extensions is simply to toll, or delay, the passing
31
of works into the public domain. This latest extension means that the
32S
public domain will have been tolled for thirty-nine out of ﬁfty-ﬁve
33R
years, or 70 percent of the time since 1962. Thus, in the twenty years
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after the Sonny Bono Act, while one million patents will pass into the
1
public domain, zero copyrights will pass into the public domain by virtue
2
of the expiration of a copyright term.
3
The effect of these extensions has been exacerbated by another,
4
little-noticed change in the copyright law. Remember I said that the
5
framers established a two-part copyright regime, requiring a copyright
6
owner to renew his copyright after an initial term. The requirement of
7
renewal meant that works that no longer needed copyright protection
8
would pass more quickly into the public domain. The works remaining
9
under protection would be those that had some continuing commercial
10
value.
11
The United States abandoned this sensible system in 1976. For
12
all works created after 1978, there was only one copyright term—the
13
maximum term. For “natural” authors, that term was life plus ﬁfty
14
years. For corporations, the term was seventy-ﬁve years. Then, in 1992,
15
Congress abandoned the renewal requirement for all works created
16
before 1978. All works still under copyright would be accorded the
17
maximum term then available. After the Sonny Bono Act, that term
18
was ninety-ﬁve years.
19
This change meant that American law no longer had an automatic
20
way to assure that works that were no longer exploited passed into the
21
public domain. And indeed, after these changes, it is unclear whether
22
it is even possible to put works into the public domain. The public do-
23
main is orphaned by these changes in copyright law. Despite the re-
24
quirement that terms be “limited,” we have no evidence that anything
25
will limit them.
26
The effect of these changes on the average duration of copyright is
27
dramatic. In 1973, more than 85 percent of copyright owners failed to
28
renew their copyright. That meant that the average term of copyright
29
in 1973 was just 32.2 years. Because of the elimination of the renewal
30
requirement, the average term of copyright is now the maximum term.
31
In thirty years, then, the average term has tripled, from 32.2 years to 95
S32
years.12
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Law: Scope
2
3
The “scope” of a copyright is the range of rights granted by the law.
4
The scope of American copyright has changed dramatically. Those
5
changes are not necessarily bad. But we should understand the extent
6
of the changes if we’re to keep this debate in context.
7
In 1790, that scope was very narrow. Copyright covered only “maps,
8
charts, and books.” That means it didn’t cover, for example, music or
9
architecture. More signiﬁcantly, the right granted by a copyright gave
10
the author the exclusive right to “publish” copyrighted works. That
11
means someone else violated the copyright only if he republished the
12
work without the copyright owner’s permission. Finally, the right granted
13
by a copyright was an exclusive right to that particular book. The right
14
did not extend to what lawyers call “derivative works.” It would not,
15
therefore, interfere with the right of someone other than the author to
16
translate a copyrighted book, or to adapt the story to a different form
17
(such as a drama based on a published book).
18
This, too, has changed dramatically. While the contours of copy-
19
right today are extremely hard to describe simply, in general terms, the
20
right covers practically any creative work that is reduced to a tangible
21
form. It covers music as well as architecture, drama as well as computer
22
programs. It gives the copyright owner of that creative work not only
23
the exclusive right to “publish” the work, but also the exclusive right of
24
control over any “copies” of that work. And most signiﬁcant for our
25
purposes here, the right gives the copyright owner control over not
26
only his or her particular work, but also any “derivative work” that might
27
grow out of the original work. In this way, the right covers more cre-
28
ative work, protects the creative work more broadly, and protects works
29
that are based in a signiﬁcant way on the initial creative work.
30
At the same time that the scope of copyright has expanded, proce-
31
dural limitations on the right have been relaxed. I’ve already described
32S
the complete removal of the renewal requirement in 1992. In addition
33R
to the renewal requirement, for most of the history of American copy-
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right law, there was a requirement that a work be registered before it
1
could receive the protection of a copyright. There was also a require-
2
ment that any copyrighted work be marked either with that famous ©
3
or the word copyright. And for most of the history of American copy-
4
right law, there was a requirement that works be deposited with the
5
government before a copyright could be secured.
6
The reason for the registration requirement was the sensible under-
7
standing that for most works, no copyright was required. Again, in the
8
ﬁrst ten years of the Republic, 95 percent of works eligible for copy-
9
right were never copyrighted. Thus, the rule reﬂected the norm: Most
10
works apparently didn’t need copyright, so registration narrowed the
11
regulation of the law to the few that did. The same reasoning justiﬁed
12
the requirement that a work be marked as copyrighted—that way it
13
was easy to know whether a copyright was being claimed. The require-
14
ment that works be deposited was to assure that after the copyright ex-
15
pired, there would be a copy of the work somewhere so that it could be
16
copied by others without locating the original author.
17
All of these “formalities” were abolished in the American system
18
when we decided to follow European copyright law. There is no re-
19
quirement that you register a work to get a copyright; the copyright
20
now is automatic; the copyright exists whether or not you mark your
21
work with a ©; and the copyright exists whether or not you actually
22
make a copy available for others to copy.
23
Consider a practical example to understand the scope of these dif-
24
ferences.
25
If, in 1790, you wrote a book and you were one of the 5 percent who
26
actually copyrighted that book, then the copyright law protected you
27
against another publisher’s taking your book and republishing it with-
28
out your permission. The aim of the act was to regulate publishers so
29
as to prevent that kind of unfair competition. In 1790, there were 174
30
publishers in the United States.13 The Copyright Act was thus a tiny
31
regulation of a tiny proportion of a tiny part of the creative market in
S32
the United States—publishers.
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1
The act left other creators totally unregulated. If I copied your
2
poem by hand, over and over again, as a way to learn it by heart, my
3
act was totally unregulated by the 1790 act. If I took your novel and
4
made a play based upon it, or if I translated it or abridged it, none of
5
those activities were regulated by the original copyright act. These cre-
6
ative activities remained free, while the activities of publishers were re-
7
strained.
8
Today the story is very different: If you write a book, your book is
9
automatically protected. Indeed, not just your book. Every e-mail,
10
every note to your spouse, every doodle, every creative act that’s re-
11
duced to a tangible form—all of this is automatically copyrighted.
12
There is no need to register or mark your work. The protection follows
13
the creation, not the steps you take to protect it.
14
That protection gives you the right (subject to a narrow range of
15
fair use exceptions) to control how others copy the work, whether they
16
copy it to republish it or to share an excerpt.
17
That much is the obvious part. Any system of copyright would con-
18
trol competing publishing. But there’s a second part to the copyright of
19
today that is not at all obvious. This is the protection of “derivative
20
rights.” If you write a book, no one can make a movie out of your
21
book without permission. No one can translate it without permission.
22
CliffsNotes can’t make an abridgment unless permission is granted. All
23
of these derivative uses of your original work are controlled by the
24
copyright holder. The copyright, in other words, is now not just an ex-
25
clusive right to your writings, but an exclusive right to your writings
26
and a large proportion of the writings inspired by them.
27
It is this derivative right that would seem most bizarre to our
28
framers, though it has become second nature to us. Initially, this ex-
29
pansion was created to deal with obvious evasions of a narrower copy-
30
right. If I write a book, can you change one word and then claim a
31
copyright in a new and different book? Obviously that would make a
32S
joke of the copyright, so the law was properly expanded to include
33R
those slight modiﬁcations as well as the verbatim original work.
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In preventing that joke, the law created an astonishing power within
1
a free culture—at least, it’s astonishing when you understand that the
2
law applies not just to the commercial publisher but to anyone with a
3
computer. I understand the wrong in duplicating and selling someone
4
else’s work. But whatever that wrong is, transforming someone else’s
5
work is a different wrong. Some view transformation as no wrong at
6
all—they believe that our law, as the framers penned it, should not pro-
7
tect derivative rights at all.14 Whether or not you go that far, it seems
8
plain that whatever wrong is involved is fundamentally different from
9
the wrong of direct piracy.
10
Yet copyright law treats these two different wrongs in the same
11
way. I can go to court and get an injunction against your pirating my
12
book. I can go to court and get an injunction against your transforma-
13
tive use of my book.15 These two different uses of my creative work are
14
treated the same.
15
This again may seem right to you. If I wrote a book, then why
16
should you be able to write a movie that takes my story and makes
17
money from it without paying me or crediting me? Or if Disney cre-
18
ates a creature called “Mickey Mouse,” why should you be able to make
19
Mickey Mouse toys and be the one to trade on the value that Disney
20
originally created?
21
These are good arguments, and, in general, my point is not that the
22
derivative right is unjustiﬁed. My aim just now is much narrower: sim-
23
ply to make clear that this expansion is a signiﬁcant change from the
24
rights originally granted.
25
26
27
Law and Architecture: Reach
28
29
Whereas originally the law regulated only publishers, the change in
30
copyright’s scope means that the law today regulates publishers, users,
31
and authors. It regulates them because all three are capable of making
S32
copies, and the core of the regulation of copyright law is copies.16
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“Copies.” That certainly sounds like the obvious thing for copyright
2
law to regulate. But as with Jack Valenti’s argument at the start of this
3
chapter, that “creative property” deserves the “same rights” as all other
4
property, it is the obvious that we need to be most careful about. For
5
while it may be obvious that in the world before the Internet, copies
6
were the obvious trigger for copyright law, upon reﬂection, it should be
7
obvious that in the world with the Internet, copies should not be the
8
trigger for copyright law. More precisely, they should not always be the
9
trigger for copyright law.
10
This is perhaps the central claim of this book, so let me take this
11
very slowly so that the point is not easily missed. My claim is that the
12
Internet should at least force us to rethink the conditions under which
13
the law of copyright automatically applies,17 because it is clear that the
14
current reach of copyright was never contemplated, much less chosen,
15
by the legislators who enacted copyright law.
16
We can see this point abstractly by beginning with this largely
17
empty circle.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
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Think about a book in real space, and imagine this circle to repre-
1
sent all its potential uses. Most of these uses are unregulated by copyright
2
law, because the uses don’t create a copy. If you read a book, that act is not
3
regulated by copyright law. If you give someone the book, that act is
4
not regulated by copyright law. If you resell a book, that act is not reg-
5
ulated (copyright law expressly states that after the ﬁrst sale of a book,
6
the copyright owner can impose no further conditions on the disposi-
7
tion of the book). If you sleep on the book or use it to hold up a lamp or
8
let your puppy chew it up, those acts are not regulated by copyright law,
9
because those acts do not make a copy.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Obviously, however, some uses of a copyrighted book are regulated
26
by copyright law. Republishing the book, for example, makes a copy. It
27
is therefore regulated by copyright law. Indeed, this particular use stands
28
at the core of this circle of possible uses of a copyrighted work. It is the
29
paradigmatic use properly regulated by copyright regulation (see ﬁrst
30
diagram on next page).
31
Finally, there is a tiny sliver of otherwise regulated copying uses
S32
that remain unregulated because the law considers these “fair uses.”
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1
2
3
4
5
6
7
8
9
10
11
12
13
These are uses that themselves involve copying, but which the law treats
14
as unregulated because public policy demands that they remain unreg-
15
ulated. You are free to quote from this book, even in a review that
16
is quite negative, without my permission, even though that quoting
17
makes a copy. That copy would ordinarily give the copyright owner the
18
exclusive right to say whether the copy is allowed or not, but the law
19
denies the owner any exclusive right over such “fair uses” for public
20
policy (and possibly First Amendment) reasons.
21
22
23
24
25
26
27
28
29
30
31
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
In real space, then, the possible uses of a book are divided into three
15
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
16
are nonetheless deemed “fair” regardless of the copyright owner’s views.
17
Enter the Internet—a distributed, digital network where every use
18
of a copyrighted work produces a copy.18 And because of this single,
19
arbitrary feature of the design of a digital network, the scope of cate-
20
gory 1 changes dramatically. Uses that before were presumptively un-
21
regulated are now presumptively regulated. No longer is there a set of
22
presumptively unregulated uses that deﬁne a freedom associated with a
23
copyrighted work. Instead, each use is now subject to the copyright,
24
because each use also makes a copy—category 1 gets sucked into cate-
25
gory 2. And those who would defend the unregulated uses of copy-
26
righted work must look exclusively to category 3, fair uses, to bear the
27
burden of this shift.
28
So let’s be very speciﬁc to make this general point clear. Before the
29
Internet, if you purchased a book and read it ten times, there would be
30
no plausible copyright-related argument that the copyright owner could
31
make to control that use of her book. Copyright law would have noth-
S32
ing to say about whether you read the book once, ten times, or every
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1
night before you went to bed. None of those instances of use—reading—
2
could be regulated by copyright law because none of those uses pro-
3
duced a copy.
4
But the same book as an e-book is effectively governed by a differ-
5
ent set of rules. Now if the copyright owner says you may read the book
6
only once or only once a month, then copyright law would aid the copy-
7
right owner in exercising this degree of control, because of the acci-
8
dental feature of copyright law that triggers its application upon there
9
being a copy. Now if you read the book ten times and the license says
10
you may read it only ﬁve times, then whenever you read the book (or
11
any portion of it) beyond the ﬁfth time, you are making a copy of the
12
book contrary to the copyright owner’s wish.
13
There are some people who think this makes perfect sense. My aim
14
just now is not to argue about whether it makes sense or not. My aim
15
is only to make clear the change. Once you see this point, a few other
16
points also become clear:
17
First, making category 1 disappear is not anything any policy maker
18
ever intended. Congress did not think through the collapse of the pre-
19
sumptively unregulated uses of copyrighted works. There is no evi-
20
dence at all that policy makers had this idea in mind when they allowed
21
our policy here to shift. Unregulated uses were an important part of
22
free culture before the Internet.
23
Second, this shift is especially troubling in the context of transfor-
24
mative uses of creative content. Again, we can all understand the wrong
25
in commercial piracy. But the law now purports to regulate any trans-
26
formation you make of creative work using a machine. “Copy and paste”
27
and “cut and paste” become crimes. Tinkering with a story and releas-
28
ing it to others exposes the tinkerer to at least a requirement of justiﬁ-
29
cation. However troubling the expansion with respect to copying a
30
particular work, it is extraordinarily troubling with respect to transfor-
31
mative uses of creative work.
32S
Third, this shift from category 1 to category 2 puts an extraordinary
33R
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burden on category 3 (“fair use”) that fair use never before had to bear.
1
If a copyright owner now tried to control how many times I could read
2
a book on-line, the natural response would be to argue that this is a
3
violation of my fair use rights. But there has never been any litigation
4
about whether I have a fair use right to read, because before the Inter-
5
net, reading did not trigger the application of copyright law and hence
6
the need for a fair use defense. The right to read was effectively pro-
7
tected before because reading was not regulated.
8
This point about fair use is totally ignored, even by advocates for
9
free culture. We have been cornered into arguing that our rights de-
10
pend upon fair use—never even addressing the earlier question about
11
the expansion in effective regulation. A thin protection grounded in
12
fair use makes sense when the vast majority of uses are unregulated. But
13
when everything becomes presumptively regulated, then the protec-
14
tions of fair use are not enough.
15
The case of Video Pipeline is a good example. Video Pipeline was
16
in the business of making “trailer” advertisements for movies available
17
to video stores. The video stores displayed the trailers as a way to sell
18
videos. Video Pipeline got the trailers from the ﬁlm distributors, put
19
the trailers on tape, and sold the tapes to the retail stores.
20
The company did this for about ﬁfteen years. Then, in 1997, it be-
21
gan to think about the Internet as another way to distribute these pre-
22
views. The idea was to expand their “selling by sampling” technique by
23
giving on-line stores the same ability to enable “browsing.” Just as in a
24
bookstore you can read a few pages of a book before you buy the book,
25
so, too, you would be able to sample a bit from the movie on-line be-
26
fore you bought it.
27
In 1998, Video Pipeline informed Disney and other ﬁlm distribu-
28
tors that it intended to distribute the trailers through the Internet
29
(rather than sending the tapes) to distributors of their videos. Two
30
years later, Disney told Video Pipeline to stop. The owner of Video
31
Pipeline asked Disney to talk about the matter—he had built a busi-
S32
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ness on distributing this content as a way to help sell Disney ﬁlms; he
2
had customers who depended upon his delivering this content. Disney
3
would agree to talk only if Video Pipeline stopped the distribution im-
4
mediately. Video Pipeline thought it was within their “fair use” rights
5
to distribute the clips as they had. So they ﬁled a lawsuit to ask the
6
court to declare that these rights were in fact their rights.
7
Disney countersued—for $100 million in damages. Those damages
8
were predicated upon a claim that Video Pipeline had “willfully in-
9
fringed” on Disney’s copyright. When a court makes a ﬁnding of will-
10
ful infringement, it can award damages not on the basis of the actual
11
harm to the copyright owner, but on the basis of an amount set in the
12
statute. Because Video Pipeline had distributed seven hundred clips of
13
Disney movies to enable video stores to sell copies of those movies,
14
Disney was now suing Video Pipeline for $100 million.
15
Disney has the right to control its property, of course. But the video
16
stores that were selling Disney’s ﬁlms also had some sort of right to be
17
able to sell the ﬁlms that they had bought from Disney. Disney’s claim
18
in court was that the stores were allowed to sell the ﬁlms and they were
19
permitted to list the titles of the ﬁlms they were selling, but they were
20
not allowed to show clips of the ﬁlms as a way of selling them without
21
Disney’s permission.
22
Now, you might think this is a close case, and I think the courts would
23
consider it a close case. My point here is to map the change that gives
24
Disney this power. Before the Internet, Disney couldn’t really control
25
how people got access to their content. Once a video was in the market-
26
place, the “ﬁrst-sale doctrine” would free the seller to use the video as he
27
wished, including showing portions of it in order to engender sales of the
28
entire movie video. But with the Internet, it becomes possible for Disney
29
to centralize control over access to this content. Because each use of the
30
Internet produces a copy, use on the Internet becomes subject to the
31
copyright owner’s control. The technology expands the scope of effective
32S
control, because the technology builds a copy into every transaction.
33R
No doubt, a potential is not yet an abuse, and so the potential for con-
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trol is not yet the abuse of control. Barnes & Noble has the right to say
1
you can’t touch a book in their store; property law gives them that right.
2
But the market effectively protects against that abuse. If Barnes & No-
3
ble banned browsing, then consumers would choose other bookstores.
4
Competition protects against the extremes. And it may well be (my argu-
5
ment so far does not even question this) that competition would prevent
6
any similar danger when it comes to copyright. Sure, publishers exercis-
7
ing the rights that authors have assigned to them might try to regulate
8
how many times you read a book, or try to stop you from sharing the book
9
with anyone. But in a competitive market such as the book market, the
10
dangers of this happening are quite slight.
11
Again, my aim so far is simply to map the changes that this changed
12
architecture enables. Enabling technology to enforce the control of
13
copyright means that the control of copyright is no longer deﬁned by
14
balanced policy. The control of copyright is simply what private own-
15
ers choose. In some contexts, at least, that fact is harmless. But in some
16
contexts it is a recipe for disaster.
17
18
19
Architecture and Law: Force
20
21
The disappearance of unregulated uses would be change enough, but a
22
second important change brought about by the Internet magniﬁes its
23
signiﬁcance. This second change does not affect the reach of copyright
24
regulation; it affects how such regulation is enforced.
25
In the world before digital technology, it was generally the law that
26
controlled whether and how someone was regulated by copyright law.
27
The law, meaning a court, meaning a judge: In the end, it was a human,
28
trained in the tradition of the law and cognizant of the balances that
29
tradition embraced, who said whether and how the law would restrict
30
your freedom.
31
There’s a famous story about a battle between the Marx Brothers
S32
and Warner Brothers. The Marxes intended to make a parody of
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Casablanca. Warner Brothers objected. They wrote a nasty letter to the
2
Marxes, warning them that there would be serious legal consequences
3
if they went forward with their plan.19
4
This led the Marx Brothers to respond in kind. They warned
5
Warner Brothers that the Marx Brothers “were brothers long before
6
you were.”20 The Marx Brothers therefore owned the word brothers,
7
and if Warner Brothers insisted on trying to control Casablanca, then
8
the Marx Brothers would insist on control over brothers.
9
An absurd and hollow threat, of course, because Warner Brothers,
10
like the Marx Brothers, knew that no court would ever enforce such a
11
silly claim. This extremism was irrelevant to the real freedoms anyone
12
(including Warner Brothers) enjoyed.
13
On the Internet, however, there is no check on silly rules, because
14
on the Internet, increasingly, rules are enforced not by a human but by
15
a machine: Increasingly, the rules of copyright law, as interpreted by
16
the copyright owner, get built into the technology that delivers copy-
17
righted content. It is code, rather than law, that rules. And the problem
18
with code regulations is that, unlike law, code has no shame. Code
19
would not get the humor of the Marx Brothers. The consequence of
20
that is not at all funny.
21
Consider the life of my Adobe eBook Reader.
22
An e-book is a book delivered in electronic form. An Adobe eBook
23
is not a book that Adobe has published; Adobe simply produces the
24
software that publishers use to deliver e-books. It provides the tech-
25
nology, and the publisher delivers the content by using the technology.
26
On the next page is a picture of an old version of my Adobe eBook
27
Reader.
28
As you can see, I have a small collection of e-books within this
29
e-book library. Some of these books reproduce content that is in the
30
public domain: Middlemarch, for example, is in the public domain.
31
Some of them reproduce content that is not in the public domain: My
32S
own book The Future of Ideas is not yet within the public domain.
33R
Consider Middlemarch ﬁrst. If you click on my e-book copy of
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Middlemarch, you’ll see a fancy cover, and then a button at the bottom
19
called Permissions.
20
If you click on the Permissions button, you’ll see a list of the per-
21
missions that the publisher purports to grant with this book.
22
23
24
25
26
27
28
29
30
31
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According to my eBook
2
Reader, I have the permission
3
to copy to the clipboard of the
4
computer ten text selections
5
every ten days. (So far, I’ve
6
copied no text to the clipboard.)
7
I also have the permission to
8
print ten pages from the book
9
every ten days. Lastly, I have
10
the permission to use the Read
11
Aloud button to hear Middle-
12
march read aloud through the
13
computer.
14
Here’s the e-book for another
15
work in the public domain (in-
16
cluding the translation): Aristo-
17
tle’s Politics.
18
According to its permissions, no printing or copying is permitted
19
at all. But fortunately, you can use the Read Aloud button to hear
20
the book.
21
22
23
24
25
26
27
28
29
30
31
32S
Finally (and most embarrassingly), here are the permissions for the
33R
original e-book version of my last book, The Future of Ideas:
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2
3
4
5
6
7
8
9
No copying, no printing, and don’t you dare try to listen to this book!
10
Now, the Adobe eBook Reader calls these controls “permissions”—
11
as if the publisher has the power to control how you use these works.
12
For works under copyright, the copyright owner certainly does have
13
the power—up to the limits of the copyright law. But for work not un-
14
der copyright, there is no such copyright power.21 When my e-book of
15
Middlemarch says I have the permission to copy only ten text selections
16
into the memory every ten days, what that really means is that the
17
eBook Reader has enabled the publisher to control how I use the book
18
on my computer, far beyond the control that the law would enable.
19
The control comes instead from the code—from the technology
20
within which the e-book “lives.” Though the e-book says that these are
21
permissions, they are not the sort of “permissions” that most of us deal
22
with. When a teenager gets “permission” to stay out till midnight, she
23
knows (unless she’s Cinderella) that she can stay out till 2 A.M., but
24
will suffer a punishment if she’s caught. But when the Adobe eBook
25
Reader says I have the permission to make ten copies of the text into
26
the computer’s memory, that means that after I’ve made ten copies, the
27
computer will not make any more. The same with the printing restric-
28
tions: After ten pages, the eBook Reader will not print any more pages.
29
It’s the same with the silly restriction that says that you can’t use the
30
Read Aloud button to read my book aloud—it’s not that the company
31
will sue you if you do; instead, if you push the Read Aloud button with
S32
my book, the machine simply won’t read aloud.
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1
These are controls, not permissions. Imagine a world where the
2
Marx Brothers sold word processing software that, when you tried to
3
type “Warner Brothers,” erased “Brothers” from the sentence.
4
This is the future of copyright law: not so much copyright law as
5
copyright code. The controls over access to content will not be controls
6
that are ratiﬁed by courts; the controls over access to content will be
7
controls that are coded by programmers. And whereas the controls that
8
are built into the law are always to be checked by a judge, the controls
9
that are built into the technology have no similar built-in check.
10
How signiﬁcant is this? Isn’t it always possible to get around the
11
controls built into the technology? Software used to be sold with tech-
12
nologies that limited the ability of users to copy the software, but those
13
were trivial protections to defeat. Why won’t it be trivial to defeat these
14
protections as well?
15
We’ve only scratched the surface of this story. Return to the Adobe
16
eBook Reader.
17
Early in the life of the Adobe eBook Reader, Adobe suffered a pub-
18
lic relations nightmare. Among the books that you could download for
19
free on the Adobe site was a copy of Alice’s Adventures in Wonderland.
20
This wonderful book is in the public domain. Yet when you clicked on
21
Permissions for that book, you got the following report:
22
23
24
25
26
27
28
29
30
31
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Here was a public domain children’s book that you were not al-
1
lowed to copy, not allowed to lend, not allowed to give, and, as the “per-
2
missions” indicated, not allowed to “read aloud”!
3
The public relations nightmare attached to that ﬁnal permission.
4
For the text did not say that you were not permitted to use the Read
5
Aloud button; it said you did not have the permission to read the book
6
aloud. That led some people to think that Adobe was restricting the
7
right of parents, for example, to read the book to their children, which
8
seemed, to say the least, absurd.
9
Adobe responded quickly that it was absurd to think that it was try-
10
ing to restrict the right to read a book aloud. Obviously it was only re-
11
stricting the ability to use the Read Aloud button to have the book read
12
aloud. But the question Adobe never did answer is this: Would Adobe
13
thus agree that a consumer was free to use software to hack around the
14
restrictions built into the eBook Reader? If some company (call it
15
Elcomsoft) developed a program to disable the technological protec-
16
tion built into an Adobe eBook so that a blind person, say, could use a
17
computer to read the book aloud, would Adobe agree that such a use of
18
an eBook Reader was fair? Adobe didn’t answer because the answer,
19
however absurd it might seem, is no.
20
The point is not to blame Adobe. Indeed, Adobe is among the most
21
innovative companies developing strategies to balance open access to
22
content with incentives for companies to innovate. But Adobe’s tech-
23
nology enables control, and Adobe has an incentive to defend this con-
24
trol. That incentive is understandable, yet what it creates is often crazy.
25
To see the point in a particularly absurd context, consider a favorite
26
story of mine that makes the same point.
27
Consider the robotic dog made by Sony named “Aibo.” The Aibo
28
learns tricks, cuddles, and follows you around. It eats only electricity
29
and that doesn’t leave that much of a mess (at least in your house).
30
The Aibo is expensive and popular. Fans from around the world
31
have set up clubs to trade stories. One fan in particular set up a Web
S32
site to enable information about the Aibo dog to be shared. This fan set
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up aibopet.com (and aibohack.com, but that resolves to the same site),
2
and on that site he provided information about how to teach an Aibo
3
to do tricks in addition to the ones Sony had taught it.
4
“Teach” here has a special meaning. Aibos are just cute computers.
5
You teach a computer how to do something by programming it differ-
6
ently. So to say that aibopet.com was giving information about how to
7
teach the dog to do new tricks is just to say that aibopet.com was giv-
8
ing information to users of the Aibo pet about how to hack their com-
9
puter “dog” to make it do new tricks (thus, aibohack.com).
10
If you’re not a programmer or don’t know many programmers, the
11
word hack has a particularly unfriendly connotation. Nonprogrammers
12
hack bushes or weeds. Nonprogrammers in horror movies do even
13
worse. But to programmers, or coders, as I call them, hack is a much
14
more positive term. Hack just means code that enables the program to
15
do something it wasn’t originally intended or enabled to do. If you buy
16
a new printer for an old computer, you might ﬁnd the old computer
17
doesn’t run, or “drive,” the printer. If you discovered that, you’d later be
18
happy to discover a hack on the Net by someone who has written a
19
driver to enable the computer to drive the printer you just bought.
20
Some hacks are easy. Some are unbelievably hard. Hackers as a
21
community like to challenge themselves and others with increasingly
22
difﬁcult tasks. There’s a certain respect that goes with the talent to hack
23
well. There’s a well-deserved respect that goes with the talent to hack
24
ethically.
25
The Aibo fan was displaying a bit of both when he hacked the pro-
26
gram and offered to the world a bit of code that would enable the Aibo
27
to dance jazz. The dog wasn’t programmed to dance jazz. It was a
28
clever bit of tinkering that turned the dog into a more talented creature
29
than Sony had built.
30
I’ve told this story in many contexts, both inside and outside the
31
United States. Once I was asked by a puzzled member of the audience,
32S
is it permissible for a dog to dance jazz in the United States? We for-
33R
get that stories about the backcountry still ﬂow across much of the
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world. So let’s just be clear before we continue: It’s not a crime any-
1
where (anymore) to dance jazz. Nor is it a crime to teach your dog to
2
dance jazz. Nor should it be a crime (though we don’t have a lot to go
3
on here) to teach your robot dog to dance jazz. Dancing jazz is a com-
4
pletely legal activity. One imagines that the owner of aibopet.com
5
thought, What possible problem could there be with teaching a robot dog to
6
dance?
7
Let’s put the dog to sleep for a minute, and turn to a pony show—
8
not literally a pony show, but rather a paper that a Princeton academic
9
named Ed Felten prepared for a conference. This Princeton academic
10
is well known and respected. He was hired by the government in the
11
Microsoft case to test Microsoft’s claims about what could and could
12
not be done with its own code. In that trial, he demonstrated both his
13
brilliance and his coolness. Under heavy badgering by Microsoft
14
lawyers, Ed Felten stood his ground. He was not about to be bullied
15
into being silent about something he knew very well.
16
But Felten’s bravery was really tested in April 2001.22 He and a
17
group of colleagues were working on a paper to be submitted at con-
18
ference. The paper was intended to describe the weakness in an encryp-
19
tion system being developed by the Secure Digital Music Initiative as
20
a technique to control the distribution of music.
21
The SDMI coalition had as its goal a technology to enable content
22
owners to exercise much better control over their content than the In-
23
ternet, as it originally stood, granted them. Using encryption, SDMI
24
hoped to develop a standard that would allow the content owner to say
25
“this music cannot be copied,” and have a computer respect that com-
26
mand. The technology was to be part of a “trusted system” of control
27
that would get content owners to trust the system of the Internet much
28
more.
29
When SDMI thought it was close to a standard, it set up a compe-
30
tition. In exchange for providing contestants with the code to an
31
SDMI-encrypted bit of content, contestants were to try to crack it
S32
and, if they did, report the problems to the consortium.
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Felten and his team ﬁgured out the encryption system quickly. He
2
and the team saw the weakness of this system as a type: Many encryp-
3
tion systems would suffer the same weakness, and Felten and his team
4
thought it worthwhile to point this out to those who study encryption.
5
Let’s review just what Felten was doing. Again, this is the United
6
States. We have a principle of free speech. We have this principle not
7
just because it is the law, but also because it is a really great idea. A
8
strongly protected tradition of free speech is likely to encourage a wide
9
range of criticism. That criticism is likely, in turn, to improve the sys-
10
tems or people or ideas criticized.
11
What Felten and his colleagues were doing was publishing a paper
12
describing the weakness in a technology. They were not spreading free
13
music, or building and deploying this technology. The paper was an
14
academic essay, unintelligible to most people. But it clearly showed the
15
weakness in the SDMI system, and why SDMI would not, as presently
16
constituted, succeed.
17
What links these two, aibopet.com and Felten, is the letters they
18
then received. Aibopet.com received a letter from Sony about the
19
aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
20
wrote:
21
22
Your site contains information providing the means to circumvent
23
AIBO-ware’s copy protection protocol constituting a violation of
24
the anti-circumvention provisions of the Digital Millennium Copy-
25
right Act.
26
27
And though an academic paper describing the weakness in a system
28
of encryption should also be perfectly legal, Felten received a letter
29
from an RIAA lawyer that read:
30
31
Any disclosure of information gained from participating in the
32S
Public Challenge would be outside the scope of activities permit-
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ted by the Agreement and could subject you and your research
1
team to actions under the Digital Millennium Copyright Act
2
(“DMCA”).
3
4
In both cases, this weirdly Orwellian law was invoked to control the
5
spread of information. The Digital Millennium Copyright Act made
6
spreading such information an offense.
7
The DMCA was enacted as a response to copyright owners’ ﬁrst fear
8
about cyberspace. The fear was that copyright control was effectively
9
dead; the response was to ﬁnd technologies that might compensate.
10
These new technologies would be copyright protection technologies—
11
technologies to control the replication and distribution of copyrighted
12
material. They were designed as code to modify the original code of the
13
Internet, to reestablish some protection for copyright owners.
14
The DMCA was a bit of law intended to back up the protection of
15
this code designed to protect copyrighted material. It was, we could
16
say, legal code intended to buttress software code which itself was in-
17
tended to support the legal code of copyright.
18
But the DMCA was not designed merely to protect copyrighted
19
works to the extent copyright law protected them. Its protection, that
20
is, did not end at the line that copyright law drew. The DMCA regu-
21
lated devices that were designed to circumvent copyright protection
22
measures. It was designed to ban those devices, whether or not the use
23
of the copyrighted material made possible by that circumvention
24
would have been a copyright violation.
25
Aibopet.com and Felten make the point. The Aibo hack circum-
26
vented a copyright protection system for the purpose of enabling the
27
dog to dance jazz. That enablement no doubt involved the use of copy-
28
righted material. But as aibopet.com’s site was noncommercial, and the
29
use did not enable subsequent copyright infringements, there’s no doubt
30
that aibopet.com’s hack was fair use of Sony’s copyrighted material. Yet
31
fair use is not a defense to the DMCA. The question is not whether the
S32
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use of the copyrighted material was a copyright violation. The question
2
is whether a copyright protection system was circumvented.
3
The threat against Felten was more attenuated, but it followed the
4
same line of reasoning. By publishing a paper describing how a copy-
5
right protection system could be circumvented, the RIAA lawyer sug-
6
gested, Felten himself was distributing a circumvention technology.
7
Thus, even though he was not himself infringing anyone’s copyright,
8
his academic paper was enabling others to infringe others’ copyright.
9
The bizarreness of these arguments is captured in a cartoon drawn
10
in 1981 by Paul Conrad. At that time, a court in California had held
11
that the VCR could be banned because it was a copyright-infringing
12
technology: It enabled consumers to copy ﬁlms without the permission
13
of the copyright owner. No doubt there were uses of the technology
14
that were legal: Fred Rogers, aka “Mr. Rogers,” for example, had testi-
15
ﬁed in that case that he wanted people to feel free to tape Mr. Rogers’
16
Neighborhood.
17
18
Some public stations, as well as commercial stations, program the
19
“Neighborhood” at hours when some children cannot use it. I
20
think that it’s a real service to families to be able to record such
21
programs and show them at appropriate times. I have always felt
22
that with the advent of all of this new technology that allows
23
people to tape the “Neighborhood” off-the-air, and I’m speak-
24
ing for the “Neighborhood” because that’s what I produce,
25
that they then become much more active in the programming of
26
their family’s television life. Very frankly, I am opposed to people
27
being programmed by others. My whole approach in broadcast-
28
ing has always been “You are an important person just the way
29
you are. You can make healthy decisions.” Maybe I’m going on
30
too long, but I just feel that anything that allows a person to be
31
more active in the control of his or her life, in a healthy way, is
32S
important.23
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Even though there were uses that were legal, because there were
1
some uses that were illegal, the court held the companies producing
2
the VCR responsible.
3
This led Conrad to draw the cartoon below, which we can adopt to
4
the DMCA.
5
No argument I have can top this picture, but let me try to get close.
6
The anticircumvention provisions of the DMCA target copyright
7
circumvention technologies. Circumvention technologies can be used
8
for different ends. They can be used, for example, to enable massive pi-
9
rating of copyrighted material—a bad end. Or they can be used to en-
10
able the use of particular copyrighted materials in ways that would be
11
considered fair use—a good end.
12
A handgun can be used to shoot a police ofﬁcer or a child. Most
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
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1
would agree such a use is bad. Or a handgun can be used for target
2
practice or to protect against an intruder. At least some would say that
3
such a use would be good. It, too, is a technology that has both good
4
and bad uses.
5
The obvious point of Conrad’s cartoon is the weirdness of a world
6
where guns are legal, despite the harm they can do, while VCRs (and
7
circumvention technologies) are illegal. Flash: No one ever died from
8
copyright circumvention. Yet the law bans circumvention technologies
9
absolutely, despite the potential that they might do some good, but
10
permits guns, despite the obvious and tragic harm they do.
11
The Aibo and RIAA examples demonstrate how copyright owners
12
are changing the balance that copyright law grants. Using code, copy-
13
right owners restrict fair use; using the DMCA, they punish those who
14
would attempt to evade the restrictions on fair use that they impose
15
through code. Technology becomes a means by which fair use can be
16
erased; the law of the DMCA backs up that erasing.
17
This is how code becomes law. The controls built into the technology
18
of copy and access protection become rules the violation of which is also
19
a violation of the law. In this way, the code extends the law—increasing its
20
regulation, even if the subject it regulates (activities that would otherwise
21
plainly constitute fair use) is beyond the reach of the law. Code becomes
22
law; code extends the law; code thus extends the control that copyright
23
owners effect—at least for those copyright holders with the lawyers
24
who can write the nasty letters that Felten and aibopet.com received.
25
There is one ﬁnal aspect of the interaction between architecture
26
and law that contributes to the force of copyright’s regulation. This is
27
the ease with which infringements of the law can be detected. For
28
contrary to the rhetoric common at the birth of cyberspace that on the
29
Internet, no one knows you’re a dog, increasingly, given changing tech-
30
nologies deployed on the Internet, it is easy to ﬁnd the dog who com-
31
mitted a legal wrong. The technologies of the Internet are open to
32S
snoops as well as sharers, and the snoops are increasingly good at track-
33R
ing down the identity of those who violate the rules.
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For example, imagine you were part of a Star Trek fan club. You
1
gathered every month to share trivia, and maybe to enact a kind of fan
2
ﬁction about the show. One person would play Spock, another, Cap-
3
tain Kirk. The characters would begin with a plot from a real story,
4
then simply continue it.24
5
Before the Internet, this was, in effect, a totally unregulated activ-
6
ity. No matter what happened inside your club room, you would never
7
be interfered with by the copyright police. You were free in that space
8
to do as you wished with this part of our culture. You were allowed to
9
build on it as you wished without fear of legal control.
10
But if you moved your club onto the Internet, and made it generally
11
available for others to join, the story would be very different. Bots scour-
12
ing the Net for trademark and copyright infringement would quickly
13
find your site. Your posting of fan ﬁction, depending upon the owner-
14
ship of the series that you’re depicting, could well inspire a lawyer’s
15
threat. And ignoring the lawyer’s threat would be extremely costly in-
16
deed. The law of copyright is extremely efﬁcient. The penalties are se-
17
vere, and the process is quick.
18
This change in the effective force of the law is caused by a change
19
in the ease with which the law can be enforced. That change too shifts
20
the law’s balance radically. It is as if your car transmitted the speed at
21
which you traveled at every moment that you drove; that would be just
22
one step before the state started issuing tickets based upon the data you
23
transmitted. That is, in effect, what is happening here.
24
25
26
Market: Concentration
27
28
So copyright’s duration has increased dramatically—tripled in the past
29
thirty years. And copyright’s scope has increased as well—from regu-
30
lating only publishers to now regulating just about everyone. And
31
copyright’s reach has changed, as every action becomes a copy and
S32
hence presumptively regulated. And as technologists ﬁnd better ways
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1
to control the use of content, and as copyright is increasingly enforced
2
through technology, copyright’s force changes, too. Misuse is easier to
3
ﬁnd and easier to control. This regulation of the creative process, which
4
began as a tiny regulation governing a tiny part of the market for cre-
5
ative work, has become the single most important regulator of creativ-
6
ity there is. It is a massive expansion in the scope of the government’s
7
control over innovation and creativity; it would be totally unrecogniz-
8
able to those who gave birth to copyright’s control.
9
Still, in my view, all of these changes would not matter much if it
10
weren’t for one more change that we must also consider. This is a
11
change that is in some sense the most familiar, though its signiﬁcance
12
and scope are not well understood. It is the one that creates precisely the
13
reason to be concerned about all the other changes I have described.
14
This is the change in the concentration and integration of the media.
15
In the past twenty years, the nature of media ownership has undergone
16
a radical alteration, caused by changes in legal rules governing the me-
17
dia. Before this change happened, the different forms of media were
18
owned by separate media companies. Now, the media is increasingly
19
owned by only a few companies. Indeed, after the changes that the
20
FCC announced in June 2003, most expect that within a few years, we
21
will live in a world where just three companies control more than 85
22
percent of the media.
23
These changes are of two sorts: the scope of concentration, and its
24
nature.
25
Changes in scope are the easier ones to describe. As Senator John
26
McCain summarized the data produced in the FCC’s review of media
27
ownership, “ﬁve companies control 85 percent of our media sources.”25
28
The ﬁve recording labels of Universal Music Group, BMG, Sony Mu-
29
sic Entertainment, Warner Music Group, and EMI control 84.8 per-
30
cent of the U.S. music market.26 The “ﬁve largest cable companies pipe
31
programming to 74 percent of the cable subscribers nationwide.”27
32S
The story with radio is even more dramatic. Before deregulation,
33R
the nation’s largest radio broadcasting conglomerate owned fewer than
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seventy-ﬁve stations. Today one company owns more than 1,200 stations.
1
During that period of consolidation, the total number of radio owners
2
dropped by 34 percent. Today, in most markets, the two largest broad-
3
casters control 74 percent of that market’s revenues. Overall, just four
4
companies control 90 percent of the nation’s radio advertising revenues.
5
Newspaper ownership is becoming more concentrated as well. To-
6
day, there are six hundred fewer daily newspapers in the United States
7
than there were eighty years ago, and ten companies control half of the
8
nation’s circulation. There are twenty major newspaper publishers in
9
the United States. The top ten ﬁlm studios receive 99 percent of all
10
ﬁlm revenue. The ten largest cable companies account for 85 percent of
11
all cable revenue. This is a market far from the free press the framers
12
sought to protect. Indeed, it is a market that is quite well protected—
13
by the market.
14
Concentration in size alone is one thing. The more invidious
15
change is in the nature of that concentration. As author James Fallows
16
put it in a recent article about Rupert Murdoch,
17
18
Murdoch’s companies now constitute a production system un-
19
matched in its integration. They supply content—Fox movies . . .
20
Fox TV shows . . . Fox-controlled sports broadcasts, plus newspa-
21
pers and books. They sell the content to the public and to adver-
22
tisers—in newspapers, on the broadcast network, on the cable
23
channels. And they operate the physical distribution system
24
through which the content reaches the customers. Murdoch’s
25
satellite systems now distribute News Corp. content in Europe
26
and Asia; if Murdoch becomes DirecTV’s largest single owner,
27
that system will serve the same function in the United States.28
28
29
The pattern with Murdoch is the pattern of modern media. Not
30
just large companies owning many radio stations, but a few companies
31
owning as many outlets of media as possible. A picture describes this
S32
pattern better than a thousand words could do:
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Does this concentration matter? Will it affect what is made, or
17
what is distributed? Or is it merely a more efﬁcient way to produce and
18
distribute content?
19
My view was that concentration wouldn’t matter. I thought it was
20
nothing more than a more efﬁcient ﬁnancial structure. But now, after
21
reading and listening to a barrage of creators try to convince me to the
22
contrary, I am beginning to change my mind.
23
Here’s a representative story that begins to suggest how this inte-
24
gration may matter.
25
In 1969, Norman Lear created a pilot for All in the Family. He took
26
the pilot to ABC. The network didn’t like it. It was too edgy, they told
27
Lear. Make it again. Lear made a second pilot, more edgy than the
28
ﬁrst. ABC was exasperated. You’re missing the point, they told Lear.
29
We wanted less edgy, not more.
30
Rather than comply, Lear simply took the show elsewhere. CBS
31
was happy to have the series; ABC could not stop Lear from walking.
32S
The copyrights that Lear held assured an independence from network
33R
control.29
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The network did not control those copyrights because the law for-
1
bade the networks from controlling the content they syndicated. The
2
law required a separation between the networks and the content pro-
3
ducers; that separation would guarantee Lear freedom. And as late as
4
1992, because of these rules, the vast majority of prime time televi-
5
sion—75 percent of it—was “independent” of the networks.
6
In 1994, the FCC abandoned the rules that required this inde-
7
pendence. After that change, the networks quickly changed the balance.
8
In 1985, there were twenty-ﬁve independent television production stu-
9
dios; in 2002, only ﬁve independent television studios remained. “In
10
1992, only 15 percent of new series were produced for a network by a
11
company it controlled. Last year, the percentage of shows produced by
12
controlled companies more than quintupled to 77 percent.” “In 1992,
13
16 new series were produced independently of conglomerate control,
14
last year there was one.”30 In 2002, 75 percent of prime time television
15
was owned by the networks that ran it. “In the ten-year period between
16
1992 and 2002, the number of prime time television hours per week
17
produced by network studios increased over 200%, whereas the num-
18
ber of prime time television hours per week produced by independent
19
studios decreased 63%.”31
20
Today, another Norman Lear with another All in the Family would
21
ﬁnd that he had the choice either to make the show less edgy or to be
22
ﬁred: The content of any show developed for a network is increasingly
23
owned by the network.
24
While the number of channels has increased dramatically, the own-
25
ership of those channels has narrowed to an ever smaller and smaller
26
few. As Barry Diller said to Bill Moyers,
27
28
Well, if you have companies that produce, that ﬁnance, that air on
29
their channel and then distribute worldwide everything that goes
30
through their controlled distribution system, then what you get is
31
fewer and fewer actual voices participating in the process. [We
S32
u]sed to have dozens and dozens of thriving independent produc-
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1
tion companies producing television programs. Now you have less
2
than a handful.32
3
4
This narrowing has an effect on what is produced. The product of
5
such large and concentrated networks is increasingly homogenous. In-
6
creasingly safe. Increasingly sterile. The product of news shows from
7
networks like this is increasingly tailored to the message the network
8
wants to convey. This is not the communist party, though from the in-
9
side, it must feel a bit like the communist party. No one can question
10
without risk of consequence—not necessarily banishment to Siberia,
11
but punishment nonetheless. Independent, critical, different views are
12
quashed. This is not the environment for a democracy.
13
Economics itself offers a parallel that explains why this integration
14
affects creativity. Clay Christensen has written about the “Innovator’s
15
Dilemma”: the fact that large traditional ﬁrms ﬁnd it rational to ignore
16
new, breakthrough technologies that compete with their core business.
17
The same analysis could help explain why large, traditional media
18
companies would ﬁnd it rational to ignore new cultural trends.33 Lum-
19
bering giants not only don’t, but should not, sprint. Yet if the ﬁeld is
20
only open to the giants, there will be far too little sprinting.
21
I don’t think we know enough about the economics of the media
22
market to say with certainty what concentration and integration will
23
do. The efﬁciencies are important, and the effect on culture is hard to
24
measure.
25
But there is a quintessentially obvious example that does strongly
26
suggest the concern.
27
In addition to the copyright wars, we’re in the middle of the drug
28
wars. Government policy is strongly directed against the drug cartels;
29
criminal and civil courts are ﬁlled with the consequences of this battle.
30
Let me hereby disqualify myself from any possible appointment to
31
any position in government by saying I believe this war is a profound
32S
mistake. I am not pro drugs. Indeed, I come from a family once
33R
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wrecked by drugs—though the drugs that wrecked my family were all
1
quite legal. I believe this war is a profound mistake because the collat-
2
eral damage from it is so great as to make waging the war insane.
3
When you add together the burdens on the criminal justice system, the
4
desperation of generations of kids whose only real economic opportu-
5
nities are as drug warriors, the queering of constitutional protections be-
6
cause of the constant surveillance this war requires, and, most profoundly,
7
the total destruction of the legal systems of many South American na-
8
tions because of the power of the local drug cartels, I ﬁnd it impossible
9
to believe that the marginal beneﬁt in reduced drug consumption by
10
Americans could possibly outweigh these costs.
11
You may not be convinced. That’s ﬁne. We live in a democracy, and
12
it is through votes that we are to choose policy. But to do that, we de-
13
pend fundamentally upon the press to help inform Americans about
14
these issues.
15
Beginning in 1998, the Ofﬁce of National Drug Control Policy
16
launched a media campaign as part of the “war on drugs.” The cam-
17
paign produced scores of short ﬁlm clips about issues related to illegal
18
drugs. In one series (the Nick and Norm series) two men are in a bar,
19
discussing the idea of legalizing drugs as a way to avoid some of the
20
collateral damage from the war. One advances an argument in favor of
21
drug legalization. The other responds in a powerful and effective way
22
against the argument of the ﬁrst. In the end, the ﬁrst guy changes his
23
mind (hey, it’s television). The plug at the end is a damning attack on
24
the pro-legalization campaign.
25
Fair enough. It’s a good ad. Not terribly misleading. It delivers its
26
message well. It’s a fair and reasonable message.
27
But let’s say you think it is a wrong message, and you’d like to run a
28
countercommercial. Say you want to run a series of ads that try to
29
demonstrate the extraordinary collateral harm that comes from the
30
drug war. Can you do it?
31
Well, obviously, these ads cost lots of money. Assume you raise the
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money. Assume a group of concerned citizens donates all the money in
2
the world to help you get your message out. Can you be sure your mes-
3
sage will be heard then?
4
No. You cannot. Television stations have a general policy of avoid-
5
ing “controversial” ads. Ads sponsored by the government are deemed
6
uncontroversial; ads disagreeing with the government are controversial.
7
This selectivity might be thought inconsistent with the First Amend-
8
ment, but the Supreme Court has held that stations have the right to
9
choose what they run. Thus, the major channels of commercial media
10
will refuse one side of a crucial debate the opportunity to present its case.
11
And the courts will defend the rights of the stations to be this biased.34
12
I’d be happy to defend the networks’ rights, as well—if we lived in
13
a media market that was truly diverse. But concentration in the media
14
throws that condition into doubt. If a handful of companies control ac-
15
cess to the media, and that handful of companies gets to decide which
16
political positions it will allow to be promoted on its channels, then in
17
an obvious and important way, concentration matters. You might like
18
the positions the handful of companies selects. But you should not like
19
a world in which a mere few get to decide which issues the rest of us
20
get to know about.
21
22
23
Together
24
25
There is something innocent and obvious about the claim of the copy-
26
right warriors that the government should “protect my property.” In
27
the abstract, it is obviously true and, ordinarily, totally harmless. No
28
sane sort who is not an anarchist could disagree.
29
But when we see how dramatically this “property” has changed—
30
when we recognize how it might now interact with both technology
31
and markets to mean that the effective constraint on the liberty to cul-
32S
tivate our culture is dramatically different—the claim begins to seem
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less innocent and obvious. Given (1) the power of technology to sup-
1
plement the law’s control, and (2) the power of concentrated markets
2
to weaken the opportunity for dissent, if strictly enforcing the mas-
3
sively expanded “property” rights granted by copyright fundamentally
4
changes the freedom within this culture to cultivate and build upon our
5
past, then we have to ask whether this property should be redeﬁned.
6
Not starkly. Or absolutely. My point is not that we should abolish
7
copyright or go back to the eighteenth century. That would be a total
8
mistake, disastrous for the most important creative enterprises within
9
our culture today.
10
But there is a space between zero and one, Internet culture notwith-
11
standing. And these massive shifts in the effective power of copyright
12
regulation, tied to increased concentration of the content industry and
13
resting in the hands of technology that will increasingly enable control
14
over the use of culture, should drive us to consider whether another ad-
15
justment is called for. Not an adjustment that increases copyright’s
16
power. Not an adjustment that increases its term. Rather, an adjust-
17
ment to restore the balance that has traditionally deﬁned copyright’s
18
regulation—a weakening of that regulation, to strengthen creativity.
19
Copyright law has not been a rock of Gibraltar. It’s not a set of con-
20
stant commitments that, for some mysterious reason, teenagers and
21
geeks now ﬂout. Instead, copyright power has grown dramatically in a
22
short period of time, as the technologies of distribution and creation
23
have changed and as lobbyists have pushed for more control by copy-
24
right holders. Changes in the past in response to changes in technol-
25
ogy suggest that we may well need similar changes in the future. And
26
these changes have to be reductions in the scope of copyright, in re-
27
sponse to the extraordinary increase in control that technology and the
28
market enable.
29
For the single point that is lost in this war on pirates is a point that
30
we see only after surveying the range of these changes. When you add
31
together the effect of changing law, concentrated markets, and chang-
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1
ing technology, together they produce an astonishing conclusion:
2
Never in our history have fewer had a legal right to control more of the de-
3
velopment of our culture than now.
4
Not when copyrights were perpetual, for when copyrights were
5
perpetual, they affected only that precise creative work. Not when only
6
publishers had the tools to publish, for the market then was much more
7
diverse. Not when there were only three television networks, for even
8
then, newspapers, ﬁlm studios, radio stations, and publishers were in-
9
dependent of the networks. Never has copyright protected such a wide
10
range of rights, against as broad a range of actors, for a term that was
11
remotely as long. This form of regulation—a tiny regulation of a tiny
12
part of the creative energy of a nation at the founding—is now a mas-
13
sive regulation of the overall creative process. Law plus technology plus
14
the market now interact to turn this historically benign regulation into
15
the most signiﬁcant regulation of culture that our free society has
16
known.35
17
18
19
This has been a long chapter. Its point can now be brieﬂy stated.
20
At the start of this book, I distinguished between commercial and
21
noncommercial culture. In the course of this chapter, I have distin-
22
guished between copying a work and transforming it. We can now
23
combine these two distinctions and draw a clear map of the changes
24
that copyright law has undergone.
25
In 1790, the law looked like this:
26
27
PUBLISH
TRANSFORM
28
Commercial
©
Free
29
Noncommercial
Free
Free
30
31
The act of publishing a map, chart, and book was regulated by
32S
copyright law. Nothing else was. Transformations were free. And as
33R
copyright attached only with registration, and only those who intended
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to beneﬁt commercially would register, copying through publishing of
1
noncommercial work was also free.
2
By the end of the nineteenth century, the law had changed to this:
3
4
PUBLISH
TRANSFORM
5
Commercial
©
©
6
Noncommercial
Free
Free
7
8
Derivative works were now regulated by copyright law—if pub-
9
lished, which again, given the economics of publishing at the time,
10
means if offered commercially. But noncommercial publishing and
11
transformation were still essentially free.
12
In 1909 the law changed to regulate copies, not publishing, and af-
13
ter this change, the scope of the law was tied to technology. As the
14
technology of copying became more prevalent, the reach of the law ex-
15
panded. Thus by 1975, as photocopying machines became more com-
16
mon, we could say the law began to look like this:
17
18
COPY
TRANSFORM
19
Commercial
©
©
20
Noncommercial
©/Free
Free
21
22
The law was interpreted to reach noncommercial copying through,
23
say, copy machines, but still much of copying outside of the commer-
24
cial market remained free. But the consequence of the emergence of
25
digital technologies, especially in the context of a digital network,
26
means that the law now looks like this:
27
28
COPY
TRANSFORM
29
Commercial
©
©
Noncommercial
©
©
30
31
Every realm is governed by copyright law, whereas before most cre-
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commercial or not, transformative or not—with the same rules designed
2
to regulate commercial publishers.
3
Obviously, copyright law is not the enemy. The enemy is regulation
4
that does no good. So the question that we should be asking just now
5
is whether extending the regulations of copyright law into each of
6
these domains actually does any good.
7
I have no doubt that it does good in regulating commercial copying.
8
But I also have no doubt that it does more harm than good when
9
regulating (as it regulates just now) noncommercial copying and, espe-
10
cially, noncommercial transformation. And increasingly, for the rea-
11
sons sketched especially in chapters 7 and 8, one might well wonder
12
whether it does more harm than good for commercial transformation.
13
More commercial transformative work would be created if derivative
14
rights were more sharply restricted.
15
The issue is therefore not simply whether copyright is property. Of
16
course copyright is a kind of “property,” and of course, as with any
17
property, the state ought to protect it. But ﬁrst impressions notwith-
18
standing, historically, this property right (as with all property rights36)
19
has been crafted to balance the important need to give authors and
20
artists incentives with the equally important need to assure access to
21
creative work. This balance has always been struck in light of new tech-
22
nologies. And for almost half of our tradition, the “copyright” did not
23
control at all the freedom of others to build upon or transform a creative
24
work. American culture was born free, and for almost 180 years our
25
country consistently protected a vibrant and rich free culture.
26
We achieved that free culture because our law respected important
27
limits on the scope of the interests protected by “property.” The very
28
birth of “copyright” as a statutory right recognized those limits, by
29
granting copyright owners protection for a limited time only (the story
30
of chapter 6). The tradition of “fair use” is animated by a similar con-
31
cern that is increasingly under strain as the costs of exercising any fair
32S
use right become unavoidably high (the story of chapter 7). Adding
33R
statutory rights where markets might stiﬂe innovation is another famil-
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iar limit on the property right that copyright is (chapter 8). And grant-
1
ing archives and libraries a broad freedom to collect, claims of property
2
notwithstanding, is a crucial part of guaranteeing the soul of a culture
3
(chapter 9). Free cultures, like free markets, are built with property. But
4
the nature of the property that builds a free culture is very different
5
from the extremist vision that dominates the debate today.
6
Free culture is increasingly the casualty in this war on piracy. In re-
7
sponse to a real, if not yet quantiﬁed, threat that the technologies of the
8
Internet present to twentieth-century business models for producing
9
and distributing culture, the law and technology are being transformed
10
in a way that will undermine our tradition of free culture. The property
11
right that is copyright is no longer the balanced right that it was, or
12
was intended to be. The property right that is copyright has become
13
unbalanced, tilted toward an extreme. The opportunity to create and
14
transform becomes weakened in a world in which creation requires
15
permission and creativity must check with a lawyer.
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
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8
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12
13
14
15
16
17
18
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21
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23
24
25
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27
28
29
30
31
PUZZLES
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3
4
5
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7
8
9
10
11
12
13
14
CHAPTER ELEVEN: Chimera
15
16
In a well-known short story by H. G. Wells, a mountain climber
Co17
named Nunez trips (literally, down an ice slope) into an unknown and
18
isolated valley in the Peruvian Andes.1 The valley is extraordinarily
19
beautiful, with “sweet water, pasture, an even climate, slopes of rich
20
brown soil with tangles of a shrub that bore an excellent fruit.” But the
21
villagers are all blind. Nunez takes this as an opportunity. “In the
22
Country of the Blind,” he tells himself, “the One-Eyed Man is King.”
23
So he resolves to live with the villagers to explore life as a king.
24
Things don’t go quite as he planned. He tries to explain the idea of
25
sight to the villagers. They don’t understand. He tells them they are
26
“blind.” They don’t have the word blind. They think he’s just thick. In-
27
deed, as they increasingly notice the things he can’t do (hear the sound
28
of grass being stepped on, for example), they increasingly try to control
29
him. He, in turn, becomes increasingly frustrated. “‘You don’t under-
30
stand,’ he cried, in a voice that was meant to be great and resolute, and
31
which broke. ‘You are blind and I can see. Leave me alone!’”
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The villagers don’t leave him alone. Nor do they see (so to speak)
2
the virtue of his special power. Not even the ultimate target of his af-
3
fection, a young woman who to him seems “the most beautiful thing in
4
the whole of creation,” understands the beauty of sight. Nunez’s de-
5
scription of what he sees “seemed to her the most poetical of fancies,
6
and she listened to his description of the stars and the mountains and
7
her own sweet white-lit beauty as though it was a guilty indulgence.”
8
“She did not believe,” Wells tells us, and “she could only half under-
9
stand, but she was mysteriously delighted.”
10
When Nunez announces his desire to marry his “mysteriously de-
11
lighted” love, the father and the village object. “You see, my dear,” her
12
father instructs, “he’s an idiot. He has delusions. He can’t do anything
13
right.” They take Nunez to the village doctor.
14
After a careful examination, the doctor gives his opinion. “His brain
15
is affected,” he reports.
16
“What affects it?” the father asks.
17
“Those queer things that are called the eyes . . . are diseased . . . in
18
such a way as to affect his brain.”
19
The doctor continues: “I think I may say with reasonable certainty
20
that in order to cure him completely, all that we need to do is a simple
21
and easy surgical operation—namely, to remove these irritant bodies
22
[the eyes].”
23
“Thank Heaven for science!” says the father to the doctor. They in-
24
form Nunez of this condition necessary for him to be allowed his bride.
25
(You’ll have to read the original to learn what happens in the end. I be-
26
lieve in free culture, but never in giving away the end of a story.)
27
28
29
It sometimes happens that the eggs of twins fuse in the mother’s
30
womb. That fusion produces a “chimera.” A chimera is a single creature
31
with two sets of DNA. The DNA in the blood, for example, might be
32S
different from the DNA of the skin. This possibility is an underused
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plot for murder mysteries. “But the DNA shows with 100 percent cer-
1
tainty that she was not the person whose blood was at the scene. . . .”
2
Before I had read about chimeras, I would have said they were im-
3
possible. A single person can’t have two sets of DNA. The very idea of
4
DNA is that it is the code of an individual. Yet in fact, not only can two
5
individuals have the same set of DNA (identical twins), but one person
6
can have two different sets of DNA (a chimera). Our understanding of
7
a “person” should reﬂect this reality.
8
The more I work to understand the current struggle over copyright
9
and culture, which I’ve sometimes called unfairly, and sometimes not
10
unfairly enough, “the copyright wars,” the more I think we’re dealing
11
with a chimera. For example, in the battle over the question “What is
12
p2p ﬁle sharing?” both sides have it right, and both sides have it wrong.
13
One side says, “File sharing is just like two kids taping each others’
14
records—the sort of thing we’ve been doing for the last thirty years
15
without any question at all.” That’s true, at least in part. When I tell my
16
best friend to try out a new CD that I’ve bought, but rather than just
17
send the CD, I point him to my p2p server, that is, in all relevant re-
18
spects, just like what every executive in every recording company no
19
doubt did as a kid: sharing music.
20
But the description is also false in part. For when my p2p server is
21
on a p2p network through which anyone can get access to my music,
22
then sure, my friends can get access, but it stretches the meaning of
23
“friends” beyond recognition to say “my ten thousand best friends” can
24
get access. Whether or not sharing my music with my best friend is
25
what “we have always been allowed to do,” we have not always been al-
26
lowed to share music with “our ten thousand best friends.”
27
Likewise, when the other side says, “File sharing is just like walking
28
into a Tower Records and taking a CD off the shelf and walking out
29
with it,” that’s true, at least in part. If, after Lyle Lovett (ﬁnally) re-
30
leases a new album, rather than buying it, I go to Kazaa and ﬁnd a free
31
copy to take, that is very much like stealing a copy from Tower.
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But it is not quite stealing from Tower. After all, when I take a CD
2
from Tower Records, Tower has one less CD to sell. And when I take
3
a CD from Tower Records, I get a bit of plastic and a cover, and some-
4
thing to show on my shelves. (And, while we’re at it, we could also note
5
that when I take a CD from Tower Records, the maximum ﬁne that
6
might be imposed on me, under California law, at least, is $1,000. Ac-
7
cording to the RIAA, by contrast, if I download a ten-song CD, I’m li-
8
able for $1,500,000 in damages.)
9
The point is not that it is as neither side describes. The point is that
10
it is both—both as the RIAA describes it and as Kazaa describes it. It
11
is a chimera. And rather than simply denying what the other side as-
12
serts, we need to begin to think about how we should respond to this
13
chimera. What rules should govern it?
14
We could respond by simply pretending that it is not a chimera. We
15
could, with the RIAA, decide that every act of ﬁle sharing should be a
16
felony. We could prosecute families for millions of dollars in damages
17
just because ﬁle sharing occurred on a family computer. And we can get
18
universities to monitor all computer trafﬁc to make sure that no com-
19
puter is used to commit this crime. These responses might be extreme,
20
but each of them has either been proposed or actually implemented.2
21
Alternatively, we could respond to ﬁle sharing the way many kids
22
act as though we’ve responded. We could totally legalize it. Let there
23
be no copyright liability, either civil or criminal, for making copy-
24
righted content available on the Net. Make ﬁle sharing like gossip: reg-
25
ulated, if at all, by social norms but not by law.
26
Either response is possible. I think either would be a mistake.
27
Rather than embrace one of these two extremes, we should embrace
28
something that recognizes the truth in both. And while I end this book
29
with a sketch of a system that does just that, my aim in the next chapter
30
is to show just how awful it would be for us to adopt the zero-tolerance
31
extreme. I believe either extreme would be worse than a reasonable al-
32S
ternative. But I believe the zero-tolerance solution would be the worse
33R
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Yet zero tolerance is increasingly our government’s policy. In the
1
middle of the chaos that the Internet has created, an extraordinary land
2
grab is occurring. The law and technology are being shifted to give con-
3
tent holders a kind of control over our culture that they have never had
4
before. And in this extremism, many an opportunity for new inno-
5
vation and new creativity will be lost.
6
I’m not talking about the opportunities for kids to “steal” music. My
7
focus instead is the commercial and cultural innovation that this war
8
will also kill. We have never seen the power to innovate spread so
9
broadly among our citizens, and we have just begun to see the innova-
10
tion that this power will unleash. Yet the Internet has already seen the
11
passing of one cycle of innovation around technologies to distribute
12
content. The law is responsible for this passing. As the vice president
13
for global public policy at one of these new innovators, eMusic.com,
14
put it when criticizing the DMCA’s added protection for copyrighted
15
material,
16
17
eMusic opposes music piracy. We are a distributor of copyrighted
18
material, and we want to protect those rights.
19
But building a technology fortress that locks in the clout of
20
the major labels is by no means the only way to protect copyright
21
interests, nor is it necessarily the best. It is simply too early to an-
22
swer that question. Market forces operating naturally may very
23
well produce a totally different industry model.
24
This is a critical point. The choices that industry sectors make
25
with respect to these systems will in many ways directly shape the
26
market for digital media and the manner in which digital media
27
are distributed. This in turn will directly inﬂuence the options
28
that are available to consumers, both in terms of the ease with
29
which they will be able to access digital media and the equipment
30
that they will require to do so. Poor choices made this early in the
31
game will retard the growth of this market, hurting everyone’s
S32
interests.3
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In April 2001, eMusic.com was purchased by Vivendi Universal,
2
one of “the major labels.” Its position on these matters has now
3
changed.
4
Reversing our tradition of tolerance now will not merely quash
5
piracy. It will sacriﬁce values that are important to this culture, and will
6
kill opportunities that could be extraordinarily valuable.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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25
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27
28
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2
3
4
5
6
7
8
9
10
11
12
13
14
CHAPTER TWELVE: Harms
15
16
To ﬁght “piracy,” to protect “property,” the content industry has
Co17
launched a war. Lobbying and lots of campaign contributions have
18
now brought the government into this war. As with any war, this one
19
will have both direct and collateral damage. As with any war of prohi-
20
bition, these damages will be suffered most by our own people.
21
My aim so far has been to describe the consequences of this war, in
22
particular, the consequences for “free culture.” But my aim now is to ex-
23
tend this description of consequences into an argument. Is this war jus-
24
tiﬁed?
25
In my view, it is not. There is no good reason why this time, for the
26
ﬁrst time, the law should defend the old against the new, just when the
27
power of the property called “intellectual property” is at its greatest in
28
our history.
29
Yet “common sense” does not see it this way. Common sense is still
30
on the side of the Causbys and the content industry. The extreme
31
claims of control in the name of property still resonate; the uncritical
S32
rejection of “piracy” still has play.
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There will be many consequences of continuing this war. I want to
2
describe just three. All three might be said to be unintended. I am quite
3
conﬁdent the third is unintended. I’m less sure about the ﬁrst two. The
4
ﬁrst two protect modern RCAs, but there is no Howard Armstrong in
5
the wings to ﬁght today’s monopolists of culture.
6
7
8
Constraining Creators
9
10
In the next ten years we will see an explosion of digital technologies.
11
These technologies will enable almost anyone to capture and share
12
content. Capturing and sharing content, of course, is what humans have
13
done since the dawn of man. It is how we learn and communicate. But
14
capturing and sharing through digital technology is different. The ﬁ-
15
delity and power are different. You could send an e-mail telling some-
16
one about a joke you saw on Comedy Central, or you could send the
17
clip. You could write an essay about the inconsistencies in the argu-
18
ments of the politician you most love to hate, or you could make a short
19
ﬁlm that puts statement against statement. You could write a poem to
20
express your love, or you could weave together a string—a mash-up—
21
of songs from your favorite artists in a collage and make it available on
22
the Net.
23
This digital “capturing and sharing” is in part an extension of the
24
capturing and sharing that has always been integral to our culture, and
25
in part it is something new. It is continuous with the Kodak, but it ex-
26
plodes the boundaries of Kodak-like technologies. The technology of
27
digital “capturing and sharing” promises a world of extraordinarily di-
28
verse creativity that can be easily and broadly shared. And as that cre-
29
ativity is applied to democracy, it will enable a broad range of citizens
30
to use technology to express and criticize and contribute to the culture
31
all around.
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Technology has thus given us an opportunity to do something with
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culture that has only ever been possible for individuals in small groups,
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isolated from others. Think about an old man telling a story to a col-
1
lection of neighbors in a small town. Now imagine that same story-
2
telling extended across the globe.
3
Yet all this is possible only if the activity is presumptively legal. In
4
the current regime of legal regulation, it is not. Forget ﬁle sharing for
5
a moment. Think about your favorite amazing sites on the Net. Web
6
sites that offer plot summaries from forgotten television shows; sites
7
that catalog cartoons from the 1960s; sites that mix images and sound
8
to criticize politicians or businesses; sites that gather newspaper articles
9
on remote topics of science or culture. There is a vast amount of creative
10
work spread across the Internet. But as the law is currently crafted, this
11
work is presumptively illegal.
12
That presumption will increasingly chill creativity, as the examples
13
of extreme penalties for vague infringements continue to proliferate. It
14
is impossible to get a clear sense of what’s allowed and what’s not, and at
15
the same time, the penalties for crossing the line are astonishingly harsh.
16
The four students who were threatened by the RIAA ( Jesse Jordan of
17
chapter 3 was just one) were threatened with a $98 billion lawsuit for
18
building search engines that permitted songs to be copied. Yet World-
19
Com—which defrauded investors of $11 billion, resulting in a loss to in-
20
vestors in market capitalization of over $200 billion—received a ﬁne of a
21
mere $750 million.1 And under legislation being pushed in Congress
22
right now, a doctor who negligently removes the wrong leg in an opera-
23
tion would be liable for no more than $250,000 in damages for pain and
24
suffering.2 Can common sense recognize the absurdity in a world where
25
the maximum ﬁne for downloading two songs off the Internet is more
26
than the ﬁne for a doctor’s negligently butchering a patient?
27
The consequence of this legal uncertainty, tied to these extremely
28
high penalties, is that an extraordinary amount of creativity will either
29
never be exercised, or never be exercised in the open. We drive this cre-
30
ative process underground by branding the modern-day Walt Disneys
31
“pirates.” We make it impossible for businesses to rely upon a public
S32
domain, because the boundaries of the public domain are designed to
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1
be unclear. It never pays to do anything except pay for the right to cre-
2
ate, and hence only those who can pay are allowed to create. As was the
3
case in the Soviet Union, though for very different reasons, we will be-
4
gin to see a world of underground art—not because the message is nec-
5
essarily political, or because the subject is controversial, but because the
6
very act of creating the art is legally fraught. Already, exhibits of “ille-
7
gal art” tour the United States.3 In what does their “illegality” consist?
8
In the act of mixing the culture around us with an expression that is
9
critical or reﬂective.
10
Part of the reason for this fear of illegality has to do with the chang-
11
ing law. I described that change in detail in chapter 10. But an even
12
bigger part has to do with the increasing ease with which infractions
13
can be tracked. As users of ﬁle-sharing systems discovered in 2002, it
14
is a trivial matter for copyright owners to get courts to order Internet
15
service providers to reveal who has what content. It is as if your cassette
16
tape player transmitted a list of the songs that you played in the privacy
17
of your own home that anyone could tune into for whatever reason
18
they chose.
19
Never in our history has a painter had to worry about whether
20
his painting infringed on someone else’s work; but the modern-day
21
painter, using the tools of Photoshop, sharing content on the Web,
22
must worry all the time. Images are all around, but the only safe images
23
to use in the act of creation are those purchased from Corbis or another
24
image farm. And in purchasing, censoring happens. There is a free
25
market in pencils; we needn’t worry about its effect on creativity. But
26
there is a highly regulated, monopolized market in cultural icons; the
27
right to cultivate and transform them is not similarly free.
28
Lawyers rarely see this because lawyers are rarely empirical. As I
29
described in chapter 7, in response to the story about documentary
30
ﬁlmmaker Jon Else, I have been lectured again and again by lawyers
31
who insist Else’s use was fair use, and hence I am wrong to say that the
32S
law regulates such a use.
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But fair use in America simply means the right to hire a lawyer to
1
defend your right to create. And as lawyers love to forget, our system
2
for defending rights such as fair use is astonishingly bad—in practically
3
every context, but especially here. It costs too much, it delivers too
4
slowly, and what it delivers often has little connection to the justice un-
5
derlying the claim. The legal system may be tolerable for the very rich.
6
For everyone else, it is an embarrassment to a tradition that prides it-
7
self on the rule of law.
8
Judges and lawyers can tell themselves that fair use provides ade-
9
quate “breathing room” between regulation by the law and the access
10
the law should allow. But it is a measure of how out of touch our legal
11
system has become that anyone actually believes this. The rules that
12
publishers impose upon writers, the rules that ﬁlm distributors impose
13
upon ﬁlmmakers, the rules that newspapers impose upon journalists—
14
these are the real laws governing creativity. And these rules have little
15
relationship to the “law” with which judges comfort themselves.
16
For in a world that threatens $150,000 for a single willful infringe-
17
ment of a copyright, and which demands tens of thousands of dollars to
18
even defend against a copyright infringement claim, and which would
19
never return to the wrongfully accused defendant anything of the costs
20
she suffered to defend her right to speak—in that world, the astonish-
21
ingly broad regulations that pass under the name “copyright” silence
22
speech and creativity. And in that world, it takes a studied blindness for
23
people to continue to believe they live in a culture that is free.
24
As Jed Horovitz, the businessman behind Video Pipeline, said
25
to me,
26
27
We’re losing [creative] opportunities right and left. Creative
28
people are being forced not to express themselves. Thoughts are
29
not being expressed. And while a lot of stuff may [still] be created,
30
it still won’t get distributed. Even if the stuff gets made . . . you’re
31
not going to get it distributed in the mainstream media unless
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1
you’ve got a little note from a lawyer saying, “This has been
2
cleared.” You’re not even going to get it on PBS without that kind
3
of permission. That’s the point at which they control it.
4
5
6
Constraining Innovators
7
8
The story of the last section was a crunchy-lefty story—creativity
9
quashed, artists who can’t speak, yada yada yada. Maybe that doesn’t
10
get you going. Maybe you think there’s enough weird art out there, and
11
enough expression that is critical of what seems to be just about every-
12
thing. And if you think that, you might think there’s little in this story
13
to worry you.
14
But there’s an aspect of this story that is not lefty in any sense. In-
15
deed, it is an aspect that could be written by the most extreme pro-
16
market ideologue. And if you’re one of these sorts (and a special one at
17
that, 188 pages into a book like this), then you can see this other aspect
18
by substituting “free market” every place I’ve spoken of “free culture.”
19
The point is the same, even if the interests affecting culture are more
20
fundamental.
21
The charge I’ve been making about the regulation of culture is the
22
same charge free marketers make about regulating markets. Everyone,
23
of course, concedes that some regulation of markets is necessary—at a
24
minimum, we need rules of property and contract, and courts to en-
25
force both. Likewise, in this culture debate, everyone concedes that at
26
least some framework of copyright is also required. But both perspec-
27
tives vehemently insist that just because some regulation is good, it
28
doesn’t follow that more regulation is better. And both perspectives are
29
constantly attuned to the ways in which regulation simply enables the
30
powerful industries of today to protect themselves against the com-
31
petitors of tomorrow.
32S
This is the single most dramatic effect of the shift in regulatory
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strategy that I described in chapter 10. The consequence of this mas-
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sive threat of liability tied to the murky boundaries of copyright law is
1
that innovators who want to innovate in this space can safely innovate
2
only if they have the sign-off from last generation’s dominant indus-
3
tries. That lesson has been taught through a series of cases that were
4
designed and executed to teach venture capitalists a lesson. That les-
5
son—what former Napster CEO Hank Barry calls a “nuclear pall” that
6
has fallen over the Valley—has been learned.
7
Consider one example to make the point, a story whose beginning
8
I told in The Future of Ideas and which has progressed in a way that
9
even I (pessimist extraordinaire) would never have predicted.
10
In 1997, Michael Roberts launched a company called MP3.com.
11
MP3.com was keen to remake the music business. Their goal was not
12
just to facilitate new ways to get access to content. Their goal was also
13
to facilitate new ways to create content. Unlike the major labels,
14
MP3.com offered creators a venue to distribute their creativity, with-
15
out demanding an exclusive engagement from the creators.
16
To make this system work, however, MP3.com needed a reliable
17
way to recommend music to its users. The idea behind this alternative
18
was to leverage the revealed preferences of music listeners to recom-
19
mend new artists. If you like Lyle Lovett, you’re likely to enjoy Bonnie
20
Raitt. And so on.
21
This idea required a simple way to gather data about user prefer-
22
ences. MP3.com came up with an extraordinarily clever way to gather
23
this preference data. In January 2000, the company launched a service
24
called my.mp3.com. Using software provided by MP3.com, a user would
25
sign into an account and then insert into her computer a CD. The soft-
26
ware would identify the CD, and then give the user access to that con-
27
tent. So, for example, if you inserted a CD by Jill Sobule, then
28
wherever you were—at work or at home—you could get access to that
29
music once you signed into your account. The system was therefore a
30
kind of music-lockbox.
31
No doubt some could use this system to illegally copy content. But
S32
that opportunity existed with or without MP3.com. The aim of the
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my.mp3.com service was to give users access to their own content, and
2
as a by-product, by seeing the content they already owned, to discover
3
the kind of content the users liked.
4
To make this system function, however, MP3.com needed to copy
5
50,000 CDs to a server. (In principle, it could have been the user who
6
uploaded the music, but that would have taken a great deal of time, and
7
would have produced a product of questionable quality.) It therefore
8
purchased 50,000 CDs from a store, and started the process of making
9
copies of those CDs. Again, it would not serve the content from those
10
copies to anyone except those who authenticated that they had a copy
11
of the CD they wanted to access. So while this was 50,000 copies, it
12
was 50,000 copies directed at giving customers something they had al-
13
ready bought.
14
Nine days after MP3.com launched its service, the ﬁve major labels,
15
headed by the RIAA, brought a lawsuit against MP3.com. MP3.com
16
settled with four of the ﬁve. Nine months later, a federal judge found
17
MP3.com to have been guilty of willful infringement with respect to
18
the ﬁfth. Applying the law as it is, the judge imposed a ﬁne against
19
MP3.com of $118 million. MP3.com then settled with the remaining
20
plaintiff, Vivendi Universal, paying over $54 million. Vivendi pur-
21
chased MP3.com just about a year later.
22
That part of the story I have told before. Now consider its conclusion.
23
After Vivendi purchased MP3.com, Vivendi turned around and
24
ﬁled a malpractice lawsuit against the lawyers who had advised it that
25
they had a good faith claim that the service they wanted to offer would
26
be considered legal under copyright law. This lawsuit alleged that it
27
should have been obvious that the courts would ﬁnd this behavior ille-
28
gal; therefore, this lawsuit sought to punish any lawyer who had dared
29
to suggest that the law was less restrictive than the labels demanded.
30
The clear purpose of this lawsuit (which was settled for an unspec-
31
iﬁed amount shortly after the story was no longer covered in the press)
32S
was to send an unequivocal message to lawyers advising clients in this
33R
space: It is not just your clients who might suffer if the content indus-
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try directs its guns against them. It is also you. So those of you who be-
1
lieve the law should be less restrictive should realize that such a view of
2
the law will cost you and your ﬁrm dearly.
3
This strategy is not just limited to the lawyers. In April 2003,
4
Universal and EMI brought a lawsuit against Hummer Winblad, the
5
venture capital ﬁrm (VC) that had funded Napster at a certain stage of
6
its development, its cofounder ( John Hummer), and general partner
7
(Hank Barry).4 The claim here, as well, was that the VC should have
8
recognized the right of the content industry to control how the indus-
9
try should develop. They should be held personally liable for funding a
10
company whose business turned out to be beyond the law. Here again,
11
the aim of the lawsuit is transparent: Any VC now recognizes that if
12
you fund a company whose business is not approved of by the dinosaurs,
13
you are at risk not just in the marketplace, but in the courtroom as well.
14
Your investment buys you not only a company, it also buys you a lawsuit.
15
So extreme has the environment become that even car manufacturers
16
are afraid of technologies that touch content. In an article in Business
17
2.0, Rafe Needleman describes a discussion with BMW:
18
19
I asked why, with all the storage capacity and computer power in
20
the car, there was no way to play MP3 ﬁles. I was told that BMW
21
engineers in Germany had rigged a new vehicle to play MP3s via
22
the car’s built-in sound system, but that the company’s marketing
23
and legal departments weren’t comfortable with pushing this for-
24
ward for release stateside. Even today, no new cars are sold in the
25
United States with bona ﬁde MP3 players. . . . 5
26
27
This is the world of the maﬁa—ﬁlled with “your money or your
28
life” offers, governed in the end not by courts but by the threats that the
29
law empowers copyright holders to exercise. It is a system that will ob-
30
viously and necessarily stiﬂe new innovation. It is hard enough to start
31
a company. It is impossibly hard if that company is constantly threat-
S32
ened by litigation.
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1
The point is not that businesses should have a right to start illegal
2
enterprises. The point is the deﬁnition of “illegal.” The law is a mess of
3
uncertainty. We have no good way to know how it should apply to new
4
technologies. Yet by reversing our tradition of judicial deference, and
5
by embracing the astonishingly high penalties that copyright law im-
6
poses, that uncertainty now yields a reality which is far more conserv-
7
ative than is right. If the law imposed the death penalty for parking
8
tickets, we’d not only have fewer parking tickets, we’d also have much
9
less driving. The same principle applies to innovation. If innovation is
10
constantly checked by this uncertain and unlimited liability, we will
11
have much less vibrant innovation and much less creativity.
12
The point is directly parallel to the crunchy-lefty point about fair
13
use. Whatever the “real” law is, realism about the effect of law in both
14
contexts is the same. This wildly punitive system of regulation will sys-
15
tematically stiﬂe creativity and innovation. It will protect some indus-
16
tries and some creators, but it will harm industry and creativity
17
generally. Free market and free culture depend upon vibrant competi-
18
tion. Yet the effect of the law today is to stiﬂe just this kind of competi-
19
tion. The effect is to produce an overregulated culture, just as the effect
20
of too much control in the market is to produce an overregulated-
21
regulated market.
22
The building of a permission culture, rather than a free culture, is
23
the ﬁrst important way in which the changes I have described will bur-
24
den innovation. A permission culture means a lawyer’s culture—a cul-
25
ture in which the ability to create requires a call to your lawyer. Again,
26
I am not antilawyer, at least when they’re kept in their proper place. I
27
am certainly not antilaw. But our profession has lost the sense of its
28
limits. And leaders in our profession have lost an appreciation of the
29
high costs that our profession imposes upon others. The inefﬁciency of
30
the law is an embarrassment to our tradition. And while I believe our
31
profession should therefore do everything it can to make the law more
32S
efﬁcient, it should at least do everything it can to limit the reach of the
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law where the law is not doing any good. The transaction costs buried
1
within a permission culture are enough to bury a wide range of creativ-
2
ity. Someone needs to do a lot of justifying to justify that result.
3
4
5
The uncertainty of the law is one burden on innovation. There is
6
a second burden that operates more directly. This is the effort by many
7
in the content industry to use the law to directly regulate the technol-
8
ogy of the Internet so that it better protects their content.
9
The motivation for this response is obvious. The Internet enables
10
the efﬁcient spread of content. That efﬁciency is a feature of the Inter-
11
net’s design. But from the perspective of the content industry, this fea-
12
ture is a “bug.” The efﬁcient spread of content means that content
13
distributors have a harder time controlling the distribution of content.
14
One obvious response to this efﬁciency is thus to make the Internet
15
less efﬁcient. If the Internet enables “piracy,” then, this response says,
16
we should break the kneecaps of the Internet.
17
The examples of this form of legislation are many. At the urging of
18
the content industry, some in Congress have threatened legislation that
19
would require computers to determine whether the content they access
20
is protected or not, and to disable the spread of protected content.6 Con-
21
gress has already launched proceedings to explore a mandatory “broad-
22
cast ﬂag” that would be required on any device capable of transmitting
23
digital video (i.e., a computer), and that would disable the copying of
24
any content that is marked with a broadcast ﬂag. Other members of
25
Congress have proposed immunizing content providers from liability
26
for technology they might deploy that would hunt down copyright vi-
27
olators and disable their machines.7
28
In one sense, these solutions seem sensible. If the problem is the
29
code, why not regulate the code to remove the problem. But any regu-
30
lation of technical infrastructure will always be tuned to the particular
31
technology of the day. It will impose signiﬁcant burdens and costs on
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the technology, but will likely be eclipsed by advances around exactly
2
those requirements.
3
In March 2002, a broad coalition of technology companies, led by
4
Intel, tried to get Congress to see the harm that such legislation would
5
impose.8 Their argument was obviously not that copyright should not
6
be protected. Instead, they argued, any protection should not do more
7
harm than good.
8
9
10
There is one more obvious way in which this war has harmed in-
11
novation—again, a story that will be quite familiar to the free market
12
crowd.
13
Copyright may be property, but like all property, it is also a form
14
of regulation. It is a regulation that beneﬁts some and harms others.
15
When done right, it beneﬁts creators and harms leeches. When done
16
wrong, it is regulation the powerful use to defeat competitors.
17
As I described in chapter 10, despite this feature of copyright as
18
regulation, and subject to important qualiﬁcations outlined by Jessica
19
Litman in her book Digital Copyright,9 overall this history of copyright
20
is not bad. As chapter 10 details, when new technologies have come
21
along, Congress has struck a balance to assure that the new is protected
22
from the old. Compulsory, or statutory, licenses have been one part of
23
that strategy. Free use (as in the case of the VCR) has been another.
24
But that pattern of deference to new technologies has now changed
25
with the rise of the Internet. Rather than striking a balance between
26
the claims of a new technology and the legitimate rights of content
27
creators, both the courts and Congress have imposed legal restrictions
28
that will have the effect of smothering the new to beneﬁt the old.
29
The response by the courts has been fairly universal.10 It has been
30
mirrored in the responses threatened and actually implemented by
31
Congress. I won’t catalog all of those responses here.11 But there is one
32S
example that captures the ﬂavor of them all. This is the story of the de-
33R
mise of Internet radio.
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As I described in chapter 4, when a radio station plays a song, the
1
recording artist doesn’t get paid for that “radio performance” unless he
2
or she is also the composer. So, for example if Marilyn Monroe had
3
recorded a version of “Happy Birthday”—to memorialize her famous
4
performance before President Kennedy at Madison Square Garden—
5
then whenever that recording was played on the radio, the current copy-
6
right owners of “Happy Birthday” would get some money, whereas
7
Marilyn Monroe would not.
8
The reasoning behind this balance struck by Congress makes some
9
sense. The justiﬁcation was that radio was a kind of advertising. The
10
recording artist thus beneﬁted because by playing her music, the radio
11
station was making it more likely that her records would be purchased.
12
Thus, the recording artist got something, even if only indirectly. Prob-
13
ably this reasoning had less to do with the result than with the power
14
of radio stations: Their lobbyists were quite good at stopping any ef-
15
forts to get Congress to require compensation to the recording artists.
16
Enter Internet radio. Like regular radio, Internet radio is a technol-
17
ogy to stream content from a broadcaster to a listener. The broadcast
18
travels across the Internet, not across the ether of radio spectrum.
19
Thus, I can “tune in” to an Internet radio station in Berlin while sitting
20
in San Francisco, even though there’s no way for me to tune in to a reg-
21
ular radio station much beyond the San Francisco metropolitan area.
22
This feature of the architecture of Internet radio means that there
23
are potentially an unlimited number of radio stations that a user could
24
tune in to using her computer, whereas under the existing architecture
25
for broadcast radio, there is an obvious limit to the number of broad-
26
casters and clear broadcast frequencies. Internet radio could therefore
27
be more competitive than regular radio; it could provide a wider range
28
of selections. And because the potential audience for Internet radio is
29
the whole world, niche stations could easily develop and market their
30
content to a relatively large number of users worldwide. According to
31
some estimates, more than eighty million users worldwide have tuned
S32
in to this new form of radio.
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Internet radio is thus to radio what FM was to AM. It is an im-
2
provement potentially vastly more signiﬁcant than the FM improve-
3
ment over AM, since not only is the technology better, so, too, is the
4
competition. Indeed, there is a direct parallel between the ﬁght to es-
5
tablish FM radio and the ﬁght to protect Internet radio. As one author
6
describes Howard Armstrong’s struggle to enable FM radio,
7
8
An almost unlimited number of FM stations was possible in the
9
shortwaves, thus ending the unnatural restrictions imposed on ra-
10
dio in the crowded longwaves. If FM were freely developed, the
11
number of stations would be limited only by economics and com-
12
petition rather than by technical restrictions. . . . Armstrong
13
likened the situation that had grown up in radio to that following
14
the invention of the printing press, when governments and ruling
15
interests attempted to control this new instrument of mass com-
16
munications by imposing restrictive licenses on it. This tyranny
17
was broken only when it became possible for men freely to ac-
18
quire printing presses and freely to run them. FM in this sense
19
was as great an invention as the printing presses, for it gave radio
20
the opportunity to strike off its shackles.12
21
22
This potential for FM radio was never realized—not because Arm-
23
strong was wrong about the technology, but because he underestimated
24
the power of “vested interests, habits, customs and legislation”13 to re-
25
tard the growth of this competing technology.
26
Now the very same claim could be made about Internet radio. For
27
again, there is no technical limitation that could restrict the number of
28
Internet radio stations. The only restrictions on Internet radio are
29
those imposed by the law. Copyright law is one such law. So the ﬁrst
30
question we should ask is, what copyright rules would govern Internet
31
radio?
32S
But here the power of the lobbyists is reversed. Internet radio is a
33R
new industry. The recording artists, on the other hand, have a very
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powerful lobby, the RIAA. Thus when Congress considered the phe-
1
nomenon of Internet radio in 1995, the lobbyists had primed Congress
2
to adopt a different rule for Internet radio than the rule that applies to
3
terrestrial radio. While terrestrial radio does not have to pay our hypo-
4
thetical Marilyn Monroe when it plays her hypothetical recording of
5
“Happy Birthday” on the air, Internet radio does. Not only is the law not
6
neutral toward Internet radio—the law actually burdens Internet radio
7
more than it burdens terrestrial radio.
8
This ﬁnancial burden is not slight. As Harvard law professor
9
William Fisher estimates, if an Internet radio station distributed ad-
10
free popular music to (on average) ten thousand listeners, twenty-four
11
hours a day, the total artist fees that radio station would owe would be
12
over $1 million a year.14 A regular radio station broadcasting the same
13
content would pay no equivalent fee.
14
The burden is not ﬁnancial only. Under the original rules that were
15
proposed, an Internet radio station (but not a terrestrial radio station)
16
would have to collect the following data from every listening transaction:
17
18
1. name of the service;
19
2. channel of the program (AM/FM stations use station ID);
20
3. type of program (archived/looped/live);
21
4. date of transmission;
22
5. time of transmission;
23
6. time zone of origination of transmission;
24
7. numeric designation of the place of the sound recording
25
within the program;
26
8. duration of transmission (to nearest second);
27
9. sound recording title;
28
10. ISRC code of the recording;
29
11. release year of the album per copyright notice and in the case
30
of compilation albums, the release year of the album and copy-
31
right date of the track;
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12. featured recording artist;
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13. retail album title;
2
14. recording label;
3
15. UPC code of the retail album;
4
16. catalog number;
5
17. copyright owner information;
6
18. musical genre of the channel or program (station format);
7
19. name of the service or entity;
8
20. channel or program;
9
21. date and time that the user logged in (in the user’s time zone);
10
22. date and time that the user logged out (in the user’s time zone);
11
23. time zone where the signal was received (user);
12
24. Unique User identiﬁer;
13
25. the country in which the user received the transmissions.
14
15
The Librarian of Congress eventually suspended these reporting
16
requirements, pending further study. And he also changed the original
17
rates set by the arbitration panel charged with setting rates. But the
18
basic difference between Internet radio and terrestrial radio remains:
19
Internet radio has to pay a type of copyright fee that terrestrial radio
20
does not.
21
Why? What justiﬁes this difference? Was there any study of the
22
economic consequences from Internet radio that would justify these
23
differences? Was the motive to protect artists against piracy?
24
In a rare bit of candor, one RIAA expert admitted what seemed ob-
25
vious to everyone at the time. As Alex Alben, vice president for Public
26
Policy at Real Networks, told me,
27
28
The RIAA, which was representing the record labels, presented
29
some testimony about what they thought a willing buyer would
30
pay to a willing seller, and it was much higher. It was ten times
31
higher than what radio stations pay to perform the same songs for
32S
the same period of time. And so the attorneys representing the
33R
webcasters asked the RIAA, . . . “How do you come up with a
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rate that’s so much higher? Why is it worth more than radio? Be-
1
cause here we have hundreds of thousands of webcasters who
2
want to pay, and that should establish the market rate, and if you
3
set the rate so high, you’re going to drive the small webcasters out
4
of business. . . .”
5
And the RIAA experts said, “Well, we don’t really model this
6
as an industry with thousands of webcasters, we think it should be
7
an industry with, you know, ﬁve or seven big players who can pay a
8
high rate and it’s a stable, predictable market.” (Emphasis added.)
9
10
Translation: The aim is to use the law to eliminate competition, so
11
that this platform of potentially immense competition, which would
12
cause the diversity and range of content available to explode, would not
13
cause pain to the dinosaurs of old. There is no one, on either the right
14
or the left, who should endorse this use of the law. And yet there is
15
practically no one, on either the right or the left, who is doing anything
16
effective to prevent it.
17
18
19
Corrupting Citizens
20
21
Overregulation stiﬂes creativity. It smothers innovation. It gives di-
22
nosaurs a veto over the future. It wastes the extraordinary opportunity
23
for a democratic creativity that digital technology enables.
24
In addition to these important harms, there is one more that was
25
important to our forebears, but seems forgotten today. Overregulation
26
corrupts citizens and weakens the rule of law.
27
The war that is being waged today is a war of prohibition. As with
28
every war of prohibition, it is targeted against the behavior of a very
29
large number of citizens. According to The New York Times, 43 million
30
Americans downloaded music in May 2002.15 According to the RIAA,
31
the behavior of those 43 million Americans is a felony. We thus have a
S32
set of rules that transform 20 percent of America into criminals. As the
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RIAA launches lawsuits against not only the Napsters and Kazaas of
2
the world, but against students building search engines, and increas-
3
ingly against ordinary users downloading content, the technologies for
4
sharing will advance to further protect and hide illegal use. It is an arms
5
race or a civil war, with the extremes of one side inviting a more ex-
6
treme response by the other.
7
The content industry’s tactics exploit the failings of the American
8
legal system. When the RIAA brought suit against Jesse Jordan, it
9
knew that in Jordan it had found a scapegoat, not a defendant. The
10
threat of having to pay either all the money in the world in damages
11
($15,000,000) or almost all the money in the world to defend against
12
paying all the money in the world in damages ($250,000 in legal fees)
13
led Jordan to choose to pay all the money he had in the world
14
($12,000) to make the suit go away. The same strategy animates the
15
RIAA’s suits against individual users. In September 2003, the RIAA
16
sued 261 individuals—including a twelve-year-old girl living in public
17
housing and a seventy-year-old man who had no idea what ﬁle sharing
18
was.16 As these scapegoats discovered, it will always cost more to de-
19
fend against these suits than it would cost to simply settle. (The twelve
20
year old, for example, like Jesse Jordan, paid her life savings of $2,000
21
to settle the case.) Our law is an awful system for defending rights. It
22
is an embarrassment to our tradition. And the consequence of our law
23
as it is, is that those with the power can use the law to quash any rights
24
they oppose.
25
Wars of prohibition are nothing new in America. This one is just
26
something more extreme than anything we’ve seen before. We experi-
27
mented with alcohol prohibition, at a time when the per capita con-
28
sumption of alcohol was 1.5 gallons per capita per year. The war against
29
drinking initially reduced that consumption to just 30 percent of its
30
preprohibition levels, but by the end of prohibition, consumption was
31
up to 70 percent of the preprohibition level. Americans were drinking
32S
just about as much, but now, a vast number were criminals.17 We have
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launched a war on drugs aimed at reducing the consumption of regu-
1
lated narcotics that 7 percent (or 16 million) Americans now use.18
2
That is a drop from the high (so to speak) in 1979 of 14 percent of the
3
population. We regulate automobiles to the point where the vast ma-
4
jority of Americans violate the law every day. We run such a complex
5
tax system that a majority of cash businesses regularly cheat.19 We
6
pride ourselves on our “free society,” but an endless array of ordinary
7
behavior is regulated within our society. And as a result, a huge pro-
8
portion of Americans regularly violate at least some law.
9
This state of affairs is not without consequence. It is a particularly
10
salient issue for teachers like me, whose job it is to teach law students
11
about the importance of “ethics.” As my colleague Charlie Nesson told
12
a class at Stanford, each year law schools admit thousands of students
13
who have illegally downloaded music, illegally consumed alcohol and
14
sometimes drugs, illegally worked without paying taxes, illegally driven
15
cars. These are kids for whom behaving illegally is increasingly the
16
norm. And then we, as law professors, are supposed to teach them how
17
to behave ethically—how to say no to bribes, or keep client funds sep-
18
arate, or honor a demand to disclose a document that will mean that
19
your case is over. Generations of Americans—more signiﬁcantly in
20
some parts of America than in others, but still, everywhere in America
21
today—can’t live their lives both normally and legally, since “normally”
22
entails a certain degree of illegality.
23
The response to this general illegality is either to enforce the law
24
more severely or to change the law. We, as a society, have to learn how
25
to make that choice more rationally. Whether a law makes sense de-
26
pends, in part, at least, upon whether the costs of the law, both in-
27
tended and collateral, outweigh the beneﬁts. If the costs, intended and
28
collateral, do outweigh the beneﬁts, then the law ought to be changed.
29
Alternatively, if the costs of the existing system are much greater than
30
the costs of an alternative, then we have a good reason to consider the
31
alternative.
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My point is not the idiotic one: Just because people violate a law, we
2
should therefore repeal it. Obviously, we could reduce murder statistics
3
dramatically by legalizing murder on Wednesdays and Fridays. But
4
that wouldn’t make any sense, since murder is wrong every day of the
5
week. A society is right to ban murder always and everywhere.
6
My point is instead one that democracies understood for gen-
7
erations, but that we recently have learned to forget. The rule of law
8
depends upon people obeying the law. The more often, and more re-
9
peatedly, we as citizens experience violating the law, the less we respect
10
the law. Obviously, in most cases, the important issue is the law, not
11
respect for the law. I don’t care whether the rapist respects the law or
12
not; I want to catch and incarcerate the rapist. But I do care whether
13
my students respect the law. And I do care if the rules of law sow in-
14
creasing disrespect because of the extreme of regulation they impose.
15
Twenty million Americans have come of age since the Internet intro-
16
duced this different idea of “sharing.” We need to be able to call these
17
twenty million Americans “citizens,” not “felons.”
18
When at least forty-three million citizens download content from
19
the Internet, and when they use tools to combine that content in ways
20
unauthorized by copyright holders, the ﬁrst question we should be ask-
21
ing is not how best to involve the FBI. The ﬁrst question should be
22
whether this particular prohibition is really necessary in order to achieve
23
the proper ends that copyright law serves. Is there another way to
24
assure that artists get paid without transforming forty-three million
25
Americans into felons? Does it make sense if there are other ways to
26
assure that artists get paid without transforming America into a nation
27
of felons?
28
This abstract point can be made more clear with a particular example.
29
We all own CDs. Many of us still own phonograph records. These
30
pieces of plastic encode music that in a certain sense we have bought.
31
The law protects our right to buy and sell that plastic: It is not a copy-
32S
right infringement for me to sell all my classical records at a used
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record store and buy jazz records to replace them. That “use” of the
1
recordings is free.
2
But as the MP3 craze has demonstrated, there is another use of
3
phonograph records that is effectively free. Because these recordings
4
were made without copy-protection technologies, I am “free” to copy,
5
or “rip,” music from my records onto a computer hard disk. Indeed,
6
Apple Corporation went so far as to suggest that “freedom” was a right:
7
In a series of commercials, Apple endorsed the “Rip, Mix, Burn” ca-
8
pacities of digital technologies.
9
This “use” of my records is certainly valuable. I have begun a large
10
process at home of ripping all of my and my wife’s CDs, and storing
11
them in one archive. Then, using Apple’s iTunes, or a wonderful pro-
12
gram called Andromeda, we can build different play lists of our music:
13
Bach, Baroque, Love Songs, Love Songs of Signiﬁcant Others—the
14
potential is endless. And by reducing the costs of mixing play lists,
15
these technologies help build a creativity with play lists that is itself in-
16
dependently valuable. Compilations of songs are creative and mean-
17
ingful in their own right.
18
This use is enabled by unprotected media—either CDs or records.
19
But unprotected media also enable ﬁle sharing. File sharing threatens
20
(or so the content industry believes) the ability of creators to earn a fair
21
return from their creativity. And thus, many are beginning to experi-
22
ment with technologies to eliminate unprotected media. These tech-
23
nologies, for example, would enable CDs that could not be ripped. Or
24
they might enable spy programs to identify ripped content on people’s
25
machines.
26
If these technologies took off, then the building of large archives of
27
your own music would become quite difﬁcult. You might hang in
28
hacker circles, and get technology to disable the technologies that pro-
29
tect the content. Trading in those technologies is illegal, but maybe that
30
doesn’t bother you much. In any case, for the vast majority of people,
31
these protection technologies would effectively destroy the archiving
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use of CDs. The technology, in other words, would force us all back to
2
the world where we either listened to music by manipulating pieces of
3
plastic or were part of a massively complex “digital rights manage-
4
ment” system.
5
If the only way to assure that artists get paid were the elimination
6
of the ability to freely move content, then these technologies to inter-
7
fere with the freedom to move content would be justiﬁable. But what
8
if there were another way to assure that artists are paid, without lock-
9
ing down any content? What if, in other words, a different system
10
could assure compensation to artists while also preserving the freedom
11
to move content easily?
12
My point just now is not to prove that there is such a system. I of-
13
fer a version of such a system in the last chapter of this book. For now,
14
the only point is the relatively uncontroversial one: If a different system
15
achieved the same legitimate objectives that the existing copyright sys-
16
tem achieved, but left consumers and creators much more free, then
17
we’d have a very good reason to pursue this alternative—namely, free-
18
dom. The choice, in other words, would not be between property and
19
piracy; the choice would be between different property systems and the
20
freedoms each allowed.
21
I believe there is a way to assure that artists are paid without turn-
22
ing forty-three million Americans into felons. But the salient feature
23
of this alternative is that it would lead to a very different market for
24
producing and distributing creativity. The dominant few, who today
25
control the vast majority of the distribution of content in the world,
26
would no longer exercise this extreme of control. Rather, they would go
27
the way of the horse-drawn buggy.
28
Except that this generation’s buggy manufacturers have already
29
saddled Congress, and are riding the law to protect themselves against
30
this new form of competition. For them the choice is between forty-
31
three million Americans as criminals and their own survival.
32S
It is understandable why they choose as they do. It is not under-
33R
standable why we as a democracy continue to choose as we do. Jack
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Valenti is charming; but not so charming as to justify giving up a tra-
1
dition as deep and important as our tradition of free culture.
2
3
4
There’s one more aspect to this corruption that is particularly im-
5
portant to civil liberties, and follows directly from any war of prohibi-
6
tion. As Electronic Frontier Foundation attorney Fred von Lohmann
7
describes, this is the “collateral damage” that “arises whenever you turn
8
a very large percentage of the population into criminals.” This is the
9
collateral damage to civil liberties generally.
10
“If you can treat someone as a putative lawbreaker,” von Lohmann
11
explains,
12
13
then all of a sudden a lot of basic civil liberty protections evapo-
14
rate to one degree or another. . . . If you’re a copyright infringer,
15
how can you hope to have any privacy rights? If you’re a copyright
16
infringer, how can you hope to be secure against seizures of your
17
computer? How can you hope to continue to receive Internet
18
access? . . . Our sensibilities change as soon as we think, “Oh,
19
well, but that person’s a criminal, a lawbreaker.” Well, what this
20
campaign against ﬁle sharing has done is turn a remarkable per-
21
centage of the American Internet-using population into “law-
22
breakers.”
23
24
And the consequence of this transformation of the American public
25
into criminals is that it becomes trivial, as a matter of due process, to
26
effectively erase much of the privacy most would presume.
27
Users of the Internet began to see this generally in 2003 as the
28
RIAA launched its campaign to force Internet service providers to turn
29
over the names of customers who the RIAA believed were violating
30
copyright law. Verizon fought that demand and lost. With a simple re-
31
quest to a judge, and without any notice to the customer at all, the
S32
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The RIAA then expanded this campaign, by announcing a general
2
strategy to sue individual users of the Internet who are alleged to have
3
downloaded copyrighted music from ﬁle-sharing systems. But as we’ve
4
seen, the potential damages from these suits are astronomical: If a fam-
5
ily’s computer is used to download a single CD’s worth of music, the
6
family could be liable for $2 million in damages. That didn’t stop the
7
RIAA from suing a number of these families, just as they had sued
8
Jesse Jordan.20
9
Even this understates the espionage that is being waged by the
10
RIAA. A report from CNN late last summer described a strategy the
11
RIAA had adopted to track Napster users.21 Using a sophisticated
12
hashing algorithm, the RIAA took what is in effect a ﬁngerprint of
13
every song in the Napster catalog. Any copy of one of those MP3s will
14
have the same “ﬁngerprint.”
15
So imagine the following not-implausible scenario: Imagine a
16
friend gives a CD to your daughter—a collection of songs just like the
17
cassettes you used to make as a kid. You don’t know, and neither does
18
your daughter, where these songs came from. But she copies these
19
songs onto her computer. She then takes her computer to college and
20
connects it to a college network, and if the college network is “cooper-
21
ating” with the RIAA’s espionage, and she hasn’t properly protected
22
her content from the network (do you know how to do that yourself ?),
23
then the RIAA will be able to identify your daughter as a “criminal.”
24
And under the rules that universities are beginning to deploy,22 your
25
daughter can lose the right to use the university’s computer network.
26
She can, in some cases, be expelled.
27
Now, of course, she’ll have the right to defend herself. You can hire
28
a lawyer for her (at $300 per hour, if you’re lucky), and she can plead
29
that she didn’t know anything about the source of the songs or that
30
they came from Napster. And it may well be that the university believes
31
her. But the university might not believe her. It might treat this “con-
32S
traband” as presumptive of guilt. And as any number of college students
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have already learned, our presumptions about innocence disappear in
1
the middle of wars of prohibition. This war is no different.
2
Says von Lohmann,
3
4
So when we’re talking about numbers like forty to sixty million
5
Americans that are essentially copyright infringers, you create a
6
situation where the civil liberties of those people are very much in
7
peril in a general matter. [I don’t] think [there is any] analog
8
where you could randomly choose any person off the street and be
9
conﬁdent that they were committing an unlawful act that could
10
put them on the hook for potential felony liability or hundreds of
11
millions of dollars of civil liability. Certainly we all speed, but
12
speeding isn’t the kind of an act for which we routinely forfeit
13
civil liberties. Some people use drugs, and I think that’s the clos-
14
est analog, [but] many have noted that the war against drugs has
15
eroded all of our civil liberties because it’s treated so many Amer-
16
icans as criminals. Well, I think it’s fair to say that ﬁle sharing
17
is an order of magnitude larger number of Americans than drug
18
use. . . . If forty to sixty million Americans have become law-
19
breakers, then we’re really on a slippery slope to lose a lot of civil
20
liberties for all forty to sixty million of them.
21
22
When forty to sixty million Americans are considered “criminals”
23
under the law, and when the law could achieve the same objective—
24
securing rights to authors—without these millions being considered
25
“criminals,” who is the villain? Americans or the law? Which is Amer-
26
ican, a constant war on our own people or a concerted effort through
27
our democracy to change our law?
28
29
30
31
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3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
BALANCES
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
So here’s the picture: You’re standing at the side of the road. Your
Po17
car is on ﬁre. You are angry and upset because in part you helped start
18
the ﬁre. Now you don’t know how to put it out. Next to you is a bucket,
19
ﬁlled with gasoline. Obviously, gasoline won’t put the ﬁre out.
20
As you ponder the mess, someone else comes along. In a panic, she
21
grabs the bucket. Before you have a chance to tell her to stop—or be-
22
fore she understands just why she should stop—the bucket is in the air.
23
The gasoline is about to hit the blazing car. And the ﬁre that gasoline
24
will ignite is about to ignite everything around.
25
26
27
A war about copyright rages all around—and we’re all focusing on the
28
wrong thing. No doubt, current technologies threaten existing busi-
29
nesses. No doubt they may threaten artists. But technologies change.
30
The industry and technologists have plenty of ways to use technology
31
to protect themselves against the current threats of the Internet. This
S32
is a ﬁre that if let alone would burn itself out.
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Yet policy makers are not willing to leave this ﬁre to itself. Primed
2
with plenty of lobbyists’ money, they are keen to intervene to eliminate
3
the problem they perceive. But the problem they perceive is not the real
4
threat this culture faces. For while we watch this small ﬁre in the cor-
5
ner, there is a massive change in the way culture is made that is hap-
6
pening all around.
7
Somehow we have to ﬁnd a way to turn attention to this more im-
8
portant and fundamental issue. Somehow we have to ﬁnd a way to
9
avoid pouring gasoline onto this ﬁre.
10
We have not found that way yet. Instead, we seem trapped in a sim-
11
pler, binary view. However much many people push to frame this de-
12
bate more broadly, it is the simple, binary view that remains. We
13
rubberneck to look at the ﬁre when we should be keeping our eyes on
14
the road.
15
This challenge has been my life these last few years. It has also been
16
my failure. In the two chapters that follow, I describe one small brace
17
of efforts, so far failed, to ﬁnd a way to refocus this debate. We must
18
understand these failures if we’re to understand what success will re-
19
quire.
20
21
22
23
24
25
26
27
28
29
30
31
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2
3
4
5
6
7
8
9
10
11
12
13
14
CHAPTER THIRTEEN: Eldred
15
16
In 1995, a father was frustrated that his daughters didn’t seem to like
Co17
Hawthorne. No doubt there was more than one such father, but at least
18
one did something about it. Eric Eldred, a retired computer program-
19
mer living in New Hampshire, decided to put Hawthorne on the
20
Web. An electronic version, Eldred thought, with links to pictures and
21
explanatory text, would make this nineteenth-century author’s work
22
come alive.
23
It didn’t work—at least for his daughters. They didn’t ﬁnd Haw-
24
thorne any more interesting than before. But Eldred’s experiment gave
25
birth to a hobby, and his hobby begat a cause: Eldred would build a
26
library of public domain works by scanning these works and making
27
them available for free.
28
Eldred’s library was not simply a copy of certain public domain
29
works, though even a copy would have been of great value to people
30
across the world who can’t get access to printed versions of these
31
works. Instead, Eldred was producing derivative works from these
S32
public domain works. Just as Disney turned Grimm into stories more
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accessible to the twentieth century, Eldred transformed Hawthorne,
2
and many others, into a form more accessible—technically accessi-
3
ble—today.
4
Eldred’s freedom to do this with Hawthorne’s work grew from the
5
same source as Disney’s. Hawthorne’s Scarlet Letter had passed into the
6
public domain in 1907. It was free for anyone to take without the per-
7
mission of the Hawthorne estate or anyone else. Some, such as Dover
8
Press and Penguin Classics, take works from the public domain and
9
produce printed editions, which they sell in bookstores across the
10
country. Others, such as Disney, take these stories and turn them into
11
animated cartoons, sometimes successfully (Cinderella), sometimes not
12
(The Hunchback of Notre Dame, Treasure Planet). These are all commer-
13
cial publications of public domain works.
14
The Internet created the possibility of noncommercial publications
15
of public domain works. Eldred’s is just one example. There are liter-
16
ally thousands of others. Hundreds of thousands from across the world
17
have discovered this platform of expression and now use it to share
18
works that are, by law, free for the taking. This has produced what we
19
might call the “noncommercial publishing industry,” which before the
20
Internet was limited to people with large egos or with political or so-
21
cial causes. But with the Internet, it includes a wide range of individu-
22
als and groups dedicated to spreading culture generally.1
23
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost’s
24
collection of poems New Hampshire was slated to pass into the public
25
domain. Eldred wanted to post that collection in his free public library.
26
But Congress got in the way. As I described in chapter 10, in 1998, for
27
the eleventh time in forty years, Congress extended the terms of exist-
28
ing copyrights—this time by twenty years. Eldred would not be free to
29
add any works more recent than 1923 to his collection until 2019. In-
30
deed, no copyrighted work would pass into the public domain until
31
that year (and not even then, if Congress extends the term again). By
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contrast, in the same period, more than 1 million patents will pass into
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This was the Sonny Bono Copyright Term Extension Act
1
(CTEA), enacted in memory of the congressman and former musician
2
Sonny Bono, who, his widow, Mary Bono, says, believed that “copy-
3
rights should be forever.”2
4
Eldred decided to ﬁght this law. He ﬁrst resolved to ﬁght it through
5
civil disobedience. In a series of interviews, Eldred announced that he
6
would publish as planned, CTEA notwithstanding. But because of a
7
second law passed in 1998, the NET (No Electronic Theft) Act, his act
8
of publishing would make Eldred a felon—whether or not anyone
9
complained. This was a dangerous strategy for a disabled programmer
10
to undertake.
11
It was here that I became involved in Eldred’s battle. I was a con-
12
stitutional scholar whose ﬁrst passion was constitutional interpreta-
13
tion. And though constitutional law courses never focus upon the
14
Progress Clause of the Constitution, it had always struck me as impor-
15
tantly different. As you know, the Constitution says,
16
17
Congress has the power to promote the Progress of Science . . .
18
by securing for limited Times to Authors . . . exclusive Right to
19
their . . . Writings. . . .
20
21
As I’ve described, this clause is unique within the power-granting
22
clause of Article I, section 8 of our Constitution. Every other clause
23
granting power to Congress simply says Congress has the power to do
24
something—for example, to regulate “commerce among the several
25
states” or “declare War.” But here, the “something” is something quite spe-
26
ciﬁc—to “promote . . . Progress”—through means that are also speciﬁc—
27
by “securing” “exclusive Rights” (i.e., copyrights) “for limited Times.”
28
In the past forty years, Congress has gotten into the practice of ex-
29
tending existing terms of copyright protection. What puzzled me
30
about this was, if Congress has the power to extend existing terms,
31
then the Constitution’s requirement that terms be “limited” will have
S32
no practical effect. If every time a copyright is about to expire, Con-
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gress has the power to extend its term, then Congress can achieve what
2
the Constitution plainly forbids—perpetual terms “on the installment
3
plan,” as Professor Peter Jaszi so nicely put it.
4
As an academic, my ﬁrst response was to hit the books. I remember
5
sitting late at the ofﬁce, scouring on-line databases for any serious con-
6
sideration of the question. No one had ever challenged Congress’s
7
practice of extending existing terms. That failure may in part be why
8
Congress seemed so untroubled in its habit. That, and the fact that the
9
practice had become so lucrative for Congress. Congress knows that
10
copyright owners will be willing to pay a great deal of money to see
11
their copyright terms extended. And so Congress is quite happy to
12
keep this gravy train going.
13
For this is the core of the corruption in our present system of
14
government. “Corruption” not in the sense that representatives are bribed.
15
Rather, “corruption” in the sense that the system induces the beneﬁci-
16
aries of Congress’s acts to raise and give money to Congress to induce
17
it to act. There’s only so much time; there’s only so much Congress can
18
do. Why not limit its actions to those things it must do—and those
19
things that pay? Extending copyright terms pays.
20
If that’s not obvious to you, consider the following: Say you’re one
21
of the very few lucky copyright owners whose copyright continues to
22
make money one hundred years after it was created. The Estate of
23
Robert Frost is a good example. Frost died in 1963. His poetry contin-
24
ues to be extraordinarily valuable. Thus the Robert Frost estate bene-
25
ﬁts greatly from any extension of copyright, since no publisher would
26
pay the estate any money if the poems Frost wrote could be published
27
by anyone for free.
28
So imagine the Robert Frost estate is earning $100,000 a year from
29
three of Frost’s poems. And imagine the copyright for those poems
30
is about to expire. You sit on the board of the Robert Frost estate.
31
Your ﬁnancial adviser comes to your board meeting with a very grim
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report:
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“Next year,” the adviser announces, “our copyrights in works A, B,
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and C will expire. That means that after next year, we will no longer be
1
receiving the annual royalty check of $100,000 from the publishers of
2
those works.
3
“There’s a proposal in Congress, however,” she continues, “that
4
could change this. A few congressmen are ﬂoating a bill to extend the
5
terms of copyright by twenty years. That bill would be extraordinarily
6
valuable to us. So we should hope this bill passes.”
7
“Hope?” a fellow board member says. “Can’t we be doing something
8
about it?”
9
“Well, obviously, yes,” the adviser responds. “We could contribute
10
to the campaigns of a number of representatives to try to assure that
11
they support the bill.”
12
You hate politics. You hate contributing to campaigns. So you want
13
to know whether this disgusting practice is worth it. “How much
14
would we get if this extension were passed?” you ask the adviser. “How
15
much is it worth?”
16
“Well,” the adviser says, “if you’re conﬁdent that you will continue
17
to get at least $100,000 a year from these copyrights, and you use the
18
‘discount rate’ that we use to evaluate estate investments (6 percent),
19
then this law would be worth $1,146,000 to the estate.”
20
You’re a bit shocked by the number, but you quickly come to the
21
correct conclusion:
22
“So you’re saying it would be worth it for us to pay more than
23
$1,000,000 in campaign contributions if we were conﬁdent those con-
24
tributions would assure that the bill was passed?”
25
“Absolutely,” the adviser responds. “It is worth it to you to con-
26
tribute up to the ‘present value’ of the income you expect from these
27
copyrights. Which for us means over $1,000,000.”
28
You quickly get the point—you as the member of the board and, I
29
trust, you the reader. Each time copyrights are about to expire, every
30
beneﬁciary in the position of the Robert Frost estate faces the same
31
choice: If they can contribute to get a law passed to extend copyrights,
S32
they will beneﬁt greatly from that extension. And so each time copy-
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rights are about to expire, there is a massive amount of lobbying to get
2
the copyright term extended.
3
Thus a congressional perpetual motion machine: So long as legisla-
4
tion can be bought (albeit indirectly), there will be all the incentive in
5
the world to buy further extensions of copyright.
6
In the lobbying that led to the passage of the Sonny Bono Copy-
7
right Term Extension Act, this “theory” about incentives was proved
8
real. Ten of the thirteen original sponsors of the act in the House
9
received the maximum contribution from Disney’s political action
10
committee; in the Senate, eight of the twelve sponsors received contri-
11
butions.3 The RIAA and the MPAA are estimated to have spent over
12
$1.5 million lobbying in the 1998 election cycle. They paid out more
13
than $200,000 in campaign contributions.4 Disney is estimated to have
14
contributed more than $800,000 to reelection campaigns in the 1998
15
cycle.5
16
17
18
Constitutional law is not oblivious to the obvious. Or at least,
19
it need not be. So when I was considering Eldred’s complaint, this re-
20
ality about the never-ending incentives to increase the copyright term
21
was central to my thinking. In my view, a pragmatic court committed
22
to interpreting and applying the Constitution of our framers would see
23
that if Congress has the power to extend existing terms, then there
24
would be no effective constitutional requirement that terms be “lim-
25
ited.” If they could extend it once, they would extend it again and again
26
and again.
27
It was also my judgment that this Supreme Court would not allow
28
Congress to extend existing terms. As anyone close to the Supreme
29
Court’s work knows, this Court has increasingly restricted the power
30
of Congress when it has viewed Congress’s actions as exceeding the
31
power granted to it by the Constitution. Among constitutional schol-
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ars, the most famous example of this trend was the Supreme Court’s
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decision in 1995 to strike down a law that banned the possession of
1
guns near schools.
2
Since 1937, the Supreme Court had interpreted Congress’s granted
3
powers very broadly; so, while the Constitution grants Congress the
4
power to regulate only “commerce among the several states” (aka “in-
5
terstate commerce”), the Supreme Court had interpreted that power to
6
include the power to regulate any activity that merely affected inter-
7
state commerce.
8
As the economy grew, this standard increasingly meant that there
9
was no limit to Congress’s power to regulate, since just about every ac-
10
tivity, when considered on a national scale, affects interstate commerce.
11
A Constitution designed to limit Congress’s power was instead inter-
12
preted to impose no limit.
13
The Supreme Court, under Chief Justice Rehnquist’s command,
14
changed that in United States v. Lopez. The government had argued
15
that possessing guns near schools affected interstate commerce. Guns
16
near schools increase crime, crime lowers property values, and so on. In
17
the oral argument, the Chief Justice asked the government whether
18
there was any activity that would not affect interstate commerce under
19
the reasoning the government advanced. The government said there
20
was not; if Congress says an activity affects interstate commerce, then
21
that activity affects interstate commerce. The Supreme Court, the gov-
22
ernment said, was not in the position to second-guess Congress.
23
“We pause to consider the implications of the government’s argu-
24
ments,” the Chief Justice wrote.6 If anything Congress says is interstate
25
commerce must therefore be considered interstate commerce, then
26
there would be no limit to Congress’s power. The decision in Lopez was
27
reafﬁrmed ﬁve years later in United States v. Morrison.7
28
If a principle were at work here, then it should apply to the Progress
29
Clause as much as the Commerce Clause.8 And if it is applied to the
30
Progress Clause, the principle should yield the conclusion that Con-
31
gress can’t extend an existing term. If Congress could extend an exist-
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1
ing term, then there would be no “stopping point” to Congress’s power
2
over terms, though the Constitution expressly states that there is such
3
a limit. Thus, the same principle applied to the power to grant copy-
4
rights should entail that Congress is not allowed to extend the term of
5
existing copyrights.
6
If, that is, the principle announced in Lopez stood for a principle.
7
Many believed the decision in Lopez stood for politics—a conservative
8
Supreme Court, which believed in states’ rights, using its power over
9
Congress to advance its own personal political preferences. But I re-
10
jected that view of the Supreme Court’s decision. Indeed, shortly after
11
the decision, I wrote an article demonstrating the “ﬁdelity” in such an
12
interpretation of the Constitution. The idea that the Supreme Court
13
decides cases based upon its politics struck me as extraordinarily bor-
14
ing. I was not going to devote my life to teaching constitutional law if
15
these nine Justices were going to be petty politicians.
16
17
18
Now let’s pause for a moment to make sure we understand what
19
the argument in Eldred was not about. By insisting on the Constitu-
20
tion’s limits to copyright, obviously Eldred was not endorsing piracy.
21
Indeed, in an obvious sense, he was ﬁghting a kind of piracy—piracy of
22
the public domain. When Robert Frost wrote his work and when Walt
23
Disney created Mickey Mouse, the maximum copyright term was just
24
ﬁfty-six years. Because of interim changes, Frost and Disney had al-
25
ready enjoyed a seventy-ﬁve-year monopoly for their work. They had
26
gotten the beneﬁt of the bargain that the Constitution envisions: In
27
exchange for a monopoly protected for ﬁfty-six years, they created new
28
work. But now these entities were using their power—expressed
29
through the power of lobbyists’ money—to get another twenty-year
30
dollop of monopoly. That twenty-year dollop would be taken from the
31
public domain. Eric Eldred was ﬁghting a piracy that affects us all.
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Some people view the public domain with contempt. In their brief
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before the Supreme Court, the Nashville Songwriters Association
1
wrote that the public domain is nothing more than “legal piracy.”9 But
2
it is not piracy when the law allows it; and in our constitutional system,
3
our law requires it. Some may not like the Constitution’s requirements,
4
but that doesn’t make the Constitution a pirate’s charter.
5
As we’ve seen, our constitutional system requires limits on copy-
6
right as a way to assure that copyright holders do not too heavily inﬂu-
7
ence the development and distribution of our culture. Yet, as Eric
8
Eldred discovered, we have set up a system that assures that copyright
9
terms will be repeatedly extended, and extended, and extended. We
10
have created the perfect storm for the public domain. Copyrights have
11
not expired, and will not expire, so long as Congress is free to be
12
bought to extend them again.
13
14
15
It is valuable copyrights that are responsible for terms being ex-
16
tended. Mickey Mouse and “Rhapsody in Blue.” These works are too
17
valuable for copyright owners to ignore. But the real harm to our soci-
18
ety from copyright extensions is not that Mickey Mouse remains Dis-
19
ney’s. Forget Mickey Mouse. Forget Robert Frost. Forget all the works
20
from the 1920s and 1930s that have continuing commercial value. The
21
real harm of term extension comes not from these famous works. The
22
real harm is to the works that are not famous, not commercially ex-
23
ploited, and no longer available as a result.
24
If you look at the work created in the ﬁrst twenty years (1923 to
25
1942) affected by the Sonny Bono Copyright Term Extension Act,
26
2 percent of that work has any continuing commercial value. It was the
27
copyright holders for that 2 percent who pushed the CTEA through.
28
But the law and its effect were not limited to that 2 percent. The law
29
extended the terms of copyright generally.10
30
Think practically about the consequence of this extension—practi-
31
cally, as a businessperson, and not as a lawyer eager for more legal
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work. In 1930, 10,047 books were published. In 2000, 174 of those
2
books were still in print. Let’s say you were Brewster Kahle, and you
3
wanted to make available to the world in your iArchive project the re-
4
maining 9,873. What would you have to do?
5
Well, ﬁrst, you’d have to determine which of the 9,873 books were
6
still under copyright. That requires going to a library (these data are
7
not on-line) and paging through tomes of books, cross-checking the
8
titles and authors of the 9,873 books with the copyright registration
9
and renewal records for works published in 1930. That will produce a
10
list of books still under copyright.
11
Then for the books still under copyright, you would need to locate
12
the current copyright owners. How would you do that?
13
Most people think that there must be a list of these copyright own-
14
ers somewhere. Practical people think this way. How could there be
15
thousands and thousands of government monopolies without there
16
being at least a list?
17
But there is no list. There may be a name from 1930, and then in
18
1959, of the person who registered the copyright. But just think prac-
19
tically about how impossibly difﬁcult it would be to track down thou-
20
sands of such records—especially since the person who registered is
21
not necessarily the current owner. And we’re just talking about 1930!
22
“But there isn’t a list of who owns property generally,” the apolo-
23
gists for the system respond. “Why should there be a list of copyright
24
owners?”
25
Well, actually, if you think about it, there are plenty of lists of who
26
owns what property. Think about deeds on houses, or titles to cars.
27
And where there isn’t a list, the code of real space is pretty good at sug-
28
gesting who the owner of a bit of property is. (A swing set in your
29
backyard is probably yours.) So formally or informally, we have a pretty
30
good way to know who owns what tangible property.
31
So: You walk down a street and see a house. You can know who
32S
owns the house by looking it up in the courthouse registry. If you see
33R
a car, there is ordinarily a license plate that will link the owner to the
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car. If you see a bunch of children’s toys sitting on the front lawn of a
1
house, it’s fairly easy to determine who owns the toys. And if you hap-
2
pen to see a baseball lying in a gutter on the side of the road, look
3
around for a second for some kids playing ball. If you don’t see any
4
kids, then okay: Here’s a bit of property whose owner we can’t easily
5
determine. It is the exception that proves the rule: that we ordinarily
6
know quite well who owns what property.
7
Compare this story to intangible property. You go into a library.
8
The library owns the books. But who owns the copyrights? As I’ve al-
9
ready described, there’s no list of copyright owners. There are authors’
10
names, of course, but their copyrights could have been assigned, or
11
passed down in an estate like Grandma’s old jewelry. To know who
12
owns what, you would have to hire a private detective. The bottom
13
line: The owner cannot easily be located. And in a regime like ours, in
14
which it is a felony to use such property without the property owner’s
15
permission, the property isn’t going to be used.
16
The consequence with respect to old books is that they won’t be
17
digitized, and hence will simply rot away on shelves. But the conse-
18
quence for other creative works is much more dire.
19
Consider the story of Michael Agee, chairman of Hal Roach Stu-
20
dios, which owns the copyrights for the Laurel and Hardy ﬁlms. Agee
21
is a direct beneﬁciary of the Bono Act. The Laurel and Hardy ﬁlms
22
were made between 1921 and 1951. Only one of these ﬁlms, The Lucky
23
Dog, is currently out of copyright. But for the CTEA, ﬁlms made after
24
1923 would have begun entering the public domain. Because Agee
25
controls the exclusive rights for these popular ﬁlms, he makes a great
26
deal of money. According to one estimate, “Roach has sold about
27
60,000 videocassettes and 50,000 DVDs of the duo’s silent ﬁlms.”11
28
Yet Agee opposed the CTEA. His reasons demonstrate a rare
29
virtue in this culture: selﬂessness. He argued in a brief before the
30
Supreme Court that the Sonny Bono Copyright Term Extension Act
31
will, if left standing, destroy a whole generation of American ﬁlm.
S32
His argument is straightforward. A tiny fraction of this work has
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any continuing commercial value. The rest—to the extent it survives at
2
all—sits in vaults gathering dust. It may be that some of this work not
3
now commercially valuable will be deemed to be valuable by the own-
4
ers of the vaults. For this to occur, however, the commercial beneﬁt
5
from the work must exceed the costs of making the work available for
6
distribution.
7
We can’t know the beneﬁts, but we do know a lot about the costs.
8
For most of the history of ﬁlm, the costs of restoring ﬁlm were very
9
high; digital technology has lowered these costs substantially. While
10
it cost more than $10,000 to restore a ninety-minute black-and-white
11
ﬁlm in 1993, it can now cost as little as $100 to digitize one hour of 8
12
mm ﬁlm.12
13
Restoration technology is not the only cost, nor the most impor-
14
tant. Lawyers, too, are a cost, and increasingly, a very important one. In
15
addition to preserving the ﬁlm, a distributor needs to secure the rights.
16
And to secure the rights for a ﬁlm that is under copyright, you need to
17
locate the copyright owner.
18
Or more accurately, owners. As we’ve seen, there isn’t only a single
19
copyright associated with a ﬁlm; there are many. There isn’t a single
20
person whom you can contact about those copyrights; there are as
21
many as can hold the rights, which turns out to be an extremely large
22
number. Thus the costs of clearing the rights to these ﬁlms is excep-
23
tionally high.
24
“But can’t you just restore the ﬁlm, distribute it, and then pay the
25
copyright owner when she shows up?” Sure, if you want to commit a
26
felony. And even if you’re not worried about committing a felony, when
27
she does show up, she’ll have the right to sue you for all the proﬁts you
28
have made. So, if you’re successful, you can be fairly conﬁdent you’ll be
29
getting a call from someone’s lawyer. And if you’re not successful, you
30
won’t make enough to cover the costs of your own lawyer. Either way,
31
you have to talk to a lawyer. And as is too often the case, saying you have
32S
to talk to a lawyer is the same as saying you won’t make any money.
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For some ﬁlms, the beneﬁt of releasing the ﬁlm may well exceed
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these costs. But for the vast majority of them, there is no way the ben-
1
eﬁt would outweigh the legal costs. Thus, for the vast majority of old
2
ﬁlms, Agee argued, the ﬁlm will not be restored and distributed until
3
the copyright expires.
4
But by the time the copyright for these ﬁlms expires, the ﬁlm will
5
have expired. These ﬁlms were produced on nitrate-based stock, and
6
nitrate stock dissolves over time. They will be gone, and the metal can-
7
isters in which they are now stored will be ﬁlled with nothing more
8
than dust.
9
10
11
Of all the creative work produced by humans anywhere, a tiny
12
fraction has continuing commercial value. For that tiny fraction, the
13
copyright is a crucially important legal device. For that tiny fraction,
14
the copyright creates incentives to produce and distribute the cre-
15
ative work. For that tiny fraction, the copyright acts as an “engine of
16
free expression.”
17
But even for that tiny fraction, the actual time during which the
18
creative work has a commercial life is extremely short. As I’ve indi-
19
cated, most books go out of print within one year. The same is true of
20
music and ﬁlm. Commercial culture is sharklike. It must keep moving.
21
And when a creative work falls out of favor with the commercial dis-
22
tributors, the commercial life ends.
23
Yet that doesn’t mean the life of the creative work ends. We don’t
24
keep libraries of books in order to compete with Barnes & Noble, and
25
we don’t have archives of ﬁlms because we expect people to choose be-
26
tween spending Friday night watching new movies and spending Fri-
27
day night watching a 1930 news documentary. The noncommercial life
28
of culture is important and valuable—for entertainment but also, and
29
more importantly, for knowledge. To understand who we are, and
30
where we came from, and how we have made the mistakes that we
31
have, we need to have access to this history.
S32
Copyrights in this context do not drive an engine of free expression.
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1
In this context, there is no need for an exclusive right. Copyrights in
2
this context do no good.
3
Yet, for most of our history, they also did little harm. For most of
4
our history, when a work ended its commercial life, there was no
5
copyright-related use that would be inhibited by an exclusive right.
6
When a book went out of print, you could not buy it from a publisher.
7
But you could still buy it from a used book store, and when a used book
8
store sells it, in America, at least, there is no need to pay the copyright
9
owner anything. Thus, the ordinary use of a book after its commercial
10
life ended was a use that was independent of copyright law.
11
The same was effectively true of ﬁlm. Because the costs of restoring
12
a ﬁlm—the real economic costs, not the lawyer costs—were so high, it
13
was never at all feasible to preserve or restore ﬁlm. Like the remains of
14
a great dinner, when it’s over, it’s over. Once a ﬁlm passed out of its
15
commercial life, it may have been archived for a bit, but that was the
16
end of its life so long as the market didn’t have more to offer.
17
In other words, though copyright has been relatively short for most
18
of our history, long copyrights wouldn’t have mattered for the works
19
that lost their commercial value. Long copyrights for these works
20
would not have interfered with anything.
21
But this situation has now changed.
22
One crucially important consequence of the emergence of digital
23
technologies is to enable the archive that Brewster Kahle dreams of.
24
Digital technologies now make it possible to preserve and give access
25
to all sorts of knowledge. Once a book goes out of print, we can now
26
imagine digitizing it and making it available to everyone, forever. Once
27
a ﬁlm goes out of distribution, we could digitize it and make it avail-
28
able to everyone, forever. Digital technologies give new life to copy-
29
righted material after it passes out of its commercial life. It is now
30
possible to preserve and assure universal access to this knowledge and
31
culture, whereas before it was not.
32S
And now copyright law does get in the way. Every step of produc-
33R
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<http://free-culture.org/get-it>
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ing this digital archive of our culture infringes on the exclusive right of
1
copyright. To digitize a book is to copy it. To do that requires permis-
2
sion of the copyright owner. The same with music, ﬁlm, or any other
3
aspect of our culture protected by copyright. The effort to make these
4
things available to history, or to researchers, or to those who just want
5
to explore, is now inhibited by a set of rules that were written for a rad-
6
ically different context.
7
Here is the core of the harm that comes from extending terms:
8
Now that technology enables us to rebuild the library of Alexandria,
9
the law gets in the way. And it doesn’t get in the way for any useful
10
copyright purpose, for the purpose of copyright is to enable the com-
11
mercial market that spreads culture. No, we are talking about culture
12
after it has lived its commercial life. In this context, copyright is serv-
13
ing no purpose at all related to the spread of knowledge. In this con-
14
text, copyright is not an engine of free expression. Copyright is a brake.
15
You may well ask, “But if digital technologies lower the costs for
16
Brewster Kahle, then they will lower the costs for Random House, too.
17
So won’t Random House do as well as Brewster Kahle in spreading
18
culture widely?”
19
Maybe. Someday. But there is absolutely no evidence to suggest
20
that publishers would be as complete as libraries. If Barnes & Noble
21
offered to lend books from its stores for a low price, would that elimi-
22
nate the need for libraries? Only if you think that the only role of a li-
23
brary is to serve what “the market” would demand. But if you think the
24
role of a library is bigger than this—if you think its role is to archive
25
culture, whether there’s a demand for any particular bit of that culture
26
or not—then we can’t count on the commercial market to do our li-
27
brary work for us.
28
I would be the ﬁrst to agree that it should do as much as it can: We
29
should rely upon the market as much as possible to spread and enable
30
culture. My message is absolutely not antimarket. But where we see the
31
market is not doing the job, then we should allow nonmarket forces the
S32
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1
freedom to ﬁll the gaps. As one researcher calculated for American cul-
2
ture, 94 percent of the ﬁlms, books, and music produced between 1923
3
and 1946 is not commercially available. However much you love the
4
commercial market, if access is a value, then 6 percent is a failu