Free Culture, By Lawrence Lessig Isbn 1594200068, The Penguin ...
Free Culture, by Lawrence Lessig
ISBN 1594200068, The Penguin Press
Expanded Outline, by Dan Krimm
This is a derivative work created under the Creative Commons
Attribution-NonCommercial License.
See details here: http://creativecommons.org/licenses/by-nc/
------------------------------------------------------------------------
PREFACE
=======
* David Pogue's skepticism of "Code" premise that software functions as
a kind of law. Possibly for 1999 but not today (dependence on
Internet).
* Argument here is about consequences of Internet to tradition of free
(unfettered, not unpaid) culture -- not left/right partisan. (Example:
Opposition to FCC media ownership deregulation.)
* Inspiration for title: Richard Stallman (Free Software, free
Society). Balance between anarchy and control, against extremism.
INTRODUCTION
============
* 1903, Wright brothers invent airplane, creation of air rights for
private (land) property. Causby lawsuit: government trespassing land's
air rights. "Common sense revolts at the idea" (Douglas).
* 1935, Edwin Howard Armstrong invents FM radio. RCA/David Sarnoff
sees FM as competition to AM, lobbies FCC to assign FM spectrum so as to
"castrate" it -- different band, power cut (loss of FM relay, buy wired
links from AT&T). RCA incorporates FM into TV, resists paying fees for
Armstrong's patents, Armstrong commits suicide after losing legal
battles. Example of how powerful forces corrupt government against
weaker forces.
* Internet increasing market penetration (58% in 2002). Not about
Internet itself, but about now it affects how culture is made.
Commercial vs. noncommercial culture, law used to address commercial
culture, division is now erased, moving from free culture to permission
culture. Protectionism for corporations, in face of populist change of
Internet. "Remake the Internet before the Internet remakes them."
False choice between "piracy" and "property". Tradition of free
culture, "hopelessly destructive" war for permission culture, "effort to
map peace'.
* Different kind of "property" than Causby's land. "Push common sense
along." Profound consequences to "silliness". The ideas of "piracy"
and "property" -- Internet fantastic and new, big media pushing
government in ways "destroying something very old".
"PIRACY"
========
Creative property leads to issue of piracy, Internet/P2P provokes new
"war". Place "piracy" in context -- "if value, then right" is not our
tradition: IP is an instrument, subservient to the value. Conflation of
republishing with transformation, birth of Internet extends reach of
copyright law beyond big publishing to all individuals, vast additional
burden.
CHAPTER ONE: Creators
======================
* 1928. Mickey Mouse "Plane Crazy" and "Steamboat Willie" --
synchronized sound for cartoons. Parody of Buster Keaton's "Steamboat
Bill, Jr." Disney pattern of derivative works. Vibrant public domain
(30 years on average).
* Norm of free culture. Example: Japanese manga, doujinshi --
doujinshi on paper illegal, but leads to flourishing of manga. America:
limits to "Superman" behavior, etc. Japan: "we don't have enough
lawyers".
* Plenty of value that "property" doesn't capture -- building on
works of others. Reluctance of Japanese lawyers to call doujinshi
"stealing". Other examples in science, theater, Hollywood films. No
society makes every use paid for -- some culture "free for the taking".
Not "whether" free, but "how much" free.
CHAPTER TWO: "Mere Copyists"
=============================
* 1839, Louis Daguerre invents first practical photography -- still
complicated, relegated to professionals. 1888, George Eastman invents
paper film, opens up photography to masses, amateurs. "Authentic visual
record .. of the common man" (Brian Coe). Legal decisions regarding
permission: courts said not necessary. Imagine difference if decisions
had gone other way -- photography likely not to flourish among
nonprofessional people.
* "Just Think" -- San Francisco educational project for video media
literacy. Crucial to next generation of culture. Grammar changes with
media: computer games. "Read-only' -- 20th century media. 21st
century: read and write. Barish class at Annenberg, gun violence --
powerfully engages students not engaged by other media.
* 9/11 news coverage, contrast between mass media stories and
Internet: mass/digested, Internet "barnraising" (ala Mike Godwin). Not
an aberration, a beginning: blogs. Some used for (unchoreographed)
public discourse. "Our democracy has atrophied." Alexis de
Tocqueville: deliberation of juries. "Democratic deliberation" --
requires permission (social norms). Blogs have no social norms yet --
Trent Lott resignation after blogspace keeps story alive. Lack of
financial conflict of interest (Dave Winer). Concentrated media hides
more from public than unconcentrated media -- blogs allow amateurs to
enter debate. Affects democracy: (1) not controlled by gatekeeper, (2)
requires defending ideas in public forum.
* John Seely Brown, Xerox: tinkering, open-source software. Also
happens with content. Freedom/right to tinker with content is not
guaranteed, systematically suppressed in digital world.
CHAPTER THREE: Catalogs
========================
* 2002, Jesse Jordan/RPI, intranet search engine, RIAA lawsuit.
Similar: MTU, Princeton. "Mafia-like choice" -- cost to win prohibitive
(250K), settlement total savings (12K). Created an activist out of a
conservative.
CHAPTER FOUR: "Pirates"
========================
* Every big media sector "born of a kind of piracy" -- defined as
"using the creative property of others without their permission".
Film
----
* Edison: MPPC, control film patents. California to escape MPPC
reach. By time enough federal marshals appeared to enforce, patents
expired.
Recorded Music
--------------
* 1900: new inventions (phonograph, player piano) not covered by
copyright. Mechanical reproductions, statutory license.
Radio
-----
* Not even recordings given royalties. Only composers.
Cable TV
--------
* Re-broadcasting -- another statutory license.
CHAPTER FIVE: "Piracy"
=======================
* Distinguish "copy shop" piracy from Internet-related "taking".
Piracy I
--------
* Physical piracy is wrong. Even so, possible excuses: (1) born a
pirate nation -- but now international law, (2) does no harm -- still a
sort of property right, even with exceptions (statutory licensing),
violates owner's right, (3) helps copyright owner -- addiction strategy,
but owner should still decide.
* Even if some is wrong, not all is wrong (cf. examples from
chapters 1-4). Understand P2P harm before condemning it. Like
Hollywood, escapes overly controlling industry, like recording industry,
exploits new distribution method, unlike cable TV, nobody is selling
content.
Piracy II
---------
* How much does P2P harm. Napster -- 18 months, 80 million users.
Some infringing, some not. Four types: A. download instead of
purchase, B. download to sample prior to purchase, C. download out-of-
print content, D. download non-copyrighted or authorized content.
Balance: A clearly harmful, B illegal but beneficial, C illegal but
harmless to artist and beneficial to society, D legal. Compare with
cassette recording -- MTV contradicted evidence of taping loss, industry
was wrong. Question, how harmful is A compared to benefits of B-C-D.
Market data complex, inconclusive. Type C: compare with used record
stores and libraries.
* Isn't fight only against type A? No. Napster offered 99.4%
block, not good enough. Zero tolerance is not our history -- balance.
Mechanicals/statutory. Radio, indirect benefit (exposure). Cable TV:
compensation without control. Betamax case.
Table:
Whose value Response of
Case was pirated the courts Response of Congress
---------- ----------------- ------------- --------------------
Recordings Composers No protection Statutory license
Radio Recording artists N/A Nothing
Cable TV Broadcasters No protection Statutory license
VCR Film creators No protection Nothing
No elimination of "free riding", Congress balanced interests, recognized
some legitimacy of "pirates". SCOTUS: "never complete control over all
possible uses". Balance versus "our property".
"PROPERTY"
==========
Copyright is a kind of property. "In ordinary language" misleading:
Jefferson -- receiving without lessening/darkening. Context for this
sort of "property".
CHAPTER SIX: Founders
======================
* Shakespeare, 1774: copy-right for Romeo and Juliet still held by
Jacob Tonson. 1710, Statute of Anne. Licensing Act 1662 expired 1695 -
- had given publishers monopoly over publishing. Common law: protect in
lieu of "positive" law? Statute of Anne had limited term -- question:
common law takeover after term or not?
** Copyright: specific, re-printing a book. No other rights
delineated. 1656: Statute of Monopolies (patents for new inventions
only). Copyright originally conceived as naturally limited.
** Booksellers: power over spread of knowledge. Balance power,
increase competition: limited term in Statute of Anne.
* 1774: Donaldson v. Beckett: House of Lords, 22/11 rejection of
perpetual copyright. Clearly established "public domain" after term
expiration, no common law extension.
CHAPTER SEVEN: Recorders
=========================
* 1990, Jon Else, "Simpsons" in background TV for documentary film,
Groening: OK, Fox: nada. Digital replacement.
* Fair use? Else: 1. errors and omissions insurance: underwriters
have dim view of fair use, 2. wanted to play by the book ("should never
have asked in the first place"), 3. expert advice: Fox would "depose and
litigate" until broke, regardless of the merits, 4. fair use addressed
usually at end of project/budget. In principle, fair use means don't
need permission. In practice, fuzzy lines and "extraordinary liability
if lines are crossed" makes for only slight effective fair use.
CHAPTER EIGHT: Transformers
============================
* 1993, Alex Alben, Starwave (Paul Allen), CD-ROM: Clint Eastwood
retrospective, film clip clearance -- a full year. Statutory license?
David Nimmer at conference of federal judges after collage video intro:
"Do you know how many federal laws were just violated in this room?"
* Internet: cut and paste culture. Possible solution: "royalty for
derivative reuse of unregistered work = flat 1% of net revenues, held in
escrow" -- name own price only when registered.
* 2003, Dreamworks "film sampling" project with Mike Myers.
Privilege of the rich. "Creative process is a process of paying
lawyers."
CHAPTER NINE: Collectors
=========================
* 1996, Brewster Kahle, Internet Archive "Way Back Machine". (1915
exception for film TV registration -- copies "borrowed back" from LOC.)
Kahle: Movie Archive. Ephemeral culture. Great historical potential
for archive but hampered by law, legal costss.
CHAPTER TEN: "Property"
========================
* Jack Valenti, MPAA, 1982: equating "intellectual property" with
other property. (1) claim is wrong, (2) would be terribly wrong to
change in that direction.
* Constitution: 5th Amendment: takings clause, just compensation.
Creative property: limited term, no compensation after expiration. Not
"whether" creative property should be protected, but "how".
* General paradigm (from Code): modalities of regulation: Law,
Market, Architecture, Norms. (1) they interact, (2) "effective freedom"
- consider the interactions, (3) law has a special role. Constraints
can change, can be changed.
Why Hollywood Is Right
----------------------
* Before Internet: balance between Law, Norms, Market and
Architecture. Enter Internet (MP3, P2P): Architecture and Market change
dramatically, "Norms pile on", "balance of protection lost".
* 1995 Commerce Department White Paper: (1) strengthen IP law, (2)
new marketing techniques, (3) tech DRM, (4) educate norms to protect.
Designed to protect old balance. But should we protect the old way?
No, not government's role to protect specific businesses ( =
authoritarianism). Before talking about justification, talk about
effect.
* 1873, DDT insecticide. 1962, Rachel Carson, Silent Spring -
unintended consequences. James Boyle (Duke): "environmentalism" for
culture. LL: "To kill a gnat, we are spraying DDT with consequences
for free culture that will be far more devastating than that this gnat
will be lost."
Beginnings
----------
* Progress Clause: "promote progress", "to Authors", short. Modern
scope of copyright regulation far beyond the original. Law, Market,
Architecture far more influential than Norms.
Law: Duration
--------------
* No guaranteed public domain in US up to 1790. Congress enacts
first copyright law: 14 year initial term, 14 year optional renewal.
1831: initial term increased to 28 years. 1909: renewal term increased
to 28 years (max: 56).
* 1962, new pattern begins: periodic increases. Recently: 1976 -
19 years, 1998 - 20 years (Bono Act). 1976/1992: removed renewal
requirements. Dramatic reduction of content falling into public domain.
Law: Scope
-----------
* 1790: maps, charts and books. Now broad: music, architecture,
drama, computer software, etc. Registration requirement, abolished when
US "decided to follow European copyright law". Other procedural
limitations relaxed, protection now automatic: copyright exists without
circle-C mark, without duplication for distribution. Derivative rights
- distinct from duplication/distribution rights.
Law and Architecture: Reach
----------------------------
* Originally regulated only publishers, now also users and authors
(now capable of making copies). Intenet: "copies" should not always be
the trigger for copyright law.
* Distinguish (pre-Internet): (1) unregulated uses, (2) regulated
uses, (3) regulated fair uses. Internet: use entails making copies,
copyright law eats up unregulated and fair uses. (1) no policy maker
ever intended to get rid of unregulated uses, (2) also regulates even
trivial transformative use, (3) extraordinary burden on fair use. Fair
use often ignored, even by free culture advocates.
* Example: Video Pipeline, movie trailers for video stores. 1998,
Internet distribution: Disney sued. Without Internet, there is no suit
(first-sale doctrine allows performance of clips to promote sales,
copyright does not apply).
Architecture and Law: Force
----------------------------
* Enforcement: before digital-tech, law (Marx Brothers vs. Warner
Brothers: "we were brothers long before you were"); Internet: no check
on "silly rules" (rules built into technology, not embodied in law - cf.
Adobe eBook Reader).
* "controls" versus "permissions" -- not copyright "law", copyright
"code". Sony "Aibo": aibopet.com, reprogramming Aibo - hack. Ed
Felten, SDMI competition, encryption reverse-engineer. DMCA - DRM anti-
circumvention, Law to back up Architecture. (Paul Conrad cartoon about
VCR vs. guns) Changing balance: using code to restrict fair use, DMCA
to punish evasion of restrictions for fair use. Code becomes Law.
* New technologies to detect infringement. Metaphor: speed
detectors on cars, tickets issued from speed data.
Market: Concentration
----------------------
* Duration, scope, reach, force all increased - wouldn't matter
much except for concentration/integration of media. Scope/nature of
concentration.
* Scope: FCC deregulation. Nature: vertical integration, cross-
ownership. Example: Norman Lear, AITF, competition from ABC to CBS,
networks could not own content. 1994, FCC abandoned independence,
networks dramatically increased ownership of content, independent
productions dramatically decreased. More channels but fewer owners.
Cf. drug war: TV policy against "controversial" ads,
Together
--------
* Simple claim: "protect my property" -- but "property" has
dramatically changed, (1) power of technology to supplant law, (2) power
of concentrated markets to weaken opportunity for dissent -- redefine
"property"? New balance "between zero and one." Reductions in scope of
copyright to balance "extraordinary increase in control". "never in our
history have fewer had a legal right to control more of the development
of our culture than now."
* Tables of changes (domains covered by copyright law indicated
with "(c)", others with "Free"):
1790: Publish Transform
------------- ------------- -------------
Commercial (c) Free
Noncommercial Free Free
1900: Publish Transform
------------- ------------- -------------
Commercial (c) (c)
Noncommercial Free Free
1975: Publish Transform
------------- ------------- -------------
Commercial (c) (c)
Noncommercial (c)/Free Free
Now: Publish Transform
------------- ------------- -------------
Commercial (c) (c)
Noncommercial (c) (c)
* Copyright law not the enemy: "regulation that does no good".
issue not simply whether copyright is property, crafted to balance
creative incentives with public access, "free culture". "Free culture
is increasingly the casualty in this war on piracy." Copyright property
right no longer balanced, tilted toward an extreme. "The opportunity to
create and transform becomes weakened in a world in which creation
requires permission and creativity must check with a lawyer."
PUZZLES
=======
CHAPTER ELEVEN: Chimera
========================
* H.G. Wells story: "In the Country of the Blind, the One-Eyed Man
is King." Not so fast (attempt to remove eyes)...
* "Chimeras" -- people with two sets of DNA. Metaphor for copyright
battles: "What is P2P file sharing?" Like cassette taping -- yes. Like
stealing from record store -- yes. Embrace truth in both views, one-
sided extremes are bad. Either extreme worse than a reasonable
alternative, but zero-tolerance ("stealing") is the worse of the two
extremes. But recent law is going in that direction.
CHAPTER TWELVE: Harms
======================
* Collateral damage of content industry war to fight "piracy" and
protect "property". War not justified. Here are three consequences.
Constraining Creators
---------------------
* Digital technology will enable "almost anyone to capture and
share content." Only if legal. Vast amount of Net content "is
presumptively illegal" and will chill creativity. Fines out of balance
($98 billion lawsuit for students building search engines enabling
copying of songs vs. WorldCom fine of $750 million for $11 billion fraud
or pending bill in Congress to cap medical malpractice at $250,000).
* Creativity suppressed or driven underground. Public domain
boundaries designed to be unclear. Ease of tracking infractions. "Fair
use in America simply means the right to hire a lawyer to defend your
right to create." Costs too much, delivers too slowly, often with
"little connection to the justice underlying the claim." Tolerable only
for very rich.
Constraining Innovators
-----------------------
* If preceding section is "too lefty" then try this:
entrepreneurial innovators must "have the sign-off from last
generation's dominant industries." (cf. Hank Barry: "nuclear pall" over
Silicon Valley).
* Example: 1997 MP3.com -- my.mp3.com (intended partially to
collect preference data for recommendation engines), music lock-box
system. Company made copies instead of users, but only available if
users confirm they own purchased copies. RIAA lawsuit, "willful
infringement", MP3 settled, Vivendi/Universal purchased. VU then filed
malpractice lawsuit against former MP3.com lawyers. Message to lawyers
that they are targets as well as their clients. Strategy also expanded
to venture capital (Hummer Winblad).
* Law is "a mess of uncertainty" that now threatens all sorts of
market innovation. "Wildly punitive system of regulation" that stifles
market competition, producing an over-regulated "permission" culture ("a
lawyer's culture") with high transaction costs. Not justified, burden
on innovation.
* Direct regulation of technology to protect content ("break the
kneecaps of the Internet"). Broadcast flag, immunizing liability for
technology to hunt and disable computers of violators. More harm than
good.
* Copyright is a form of regulation. "When done right, it benefits
creators and harms leeches. When done wrong, it is regulation the
powerful use to defeat competition." "Pattern of deference to new
technologies" giving way to "legal restrictions that will have the
effect of smothering the new to benefit the old."
* Example: Internet radio. Artists not paid for airplay (though
composers and publishers are) -- form of advertising for records.
Internet radio: no channel limit, more competition. Parallel with
FM/AM: almost unlimited channels in shortwave spectrum, but not released
for FM transmission, thus maintaining scarcity of bandwidth for FM, so
AM could still compete. Internet radio requires payment to SR copyright
holders, plus data meta-collection/reporting, extra burden on Internet
radio. RIAA: "we think it should be an industry with, you know, five or
seven big players who can pay a high rate and it's a stable, predictable
market,"
Corrupting Citizens
-------------------
* War of prohibition -- NYT: 43 million downloaded music in May
2002. RIAA: all felons (scapegoats). Alcohol, drugs, automobiles
(speeding), taxes (cash businesses), "a huge proportion of Americans
regularly violate at least some law." Problem for teaching ethics.
Either enforce the law more severely or change the law. Is prohibition
"really necessary to achieve the proper ends that that copyright
serves"?
* Example: Selling used records/CDs. Ripping copies of
records/CDs (unprotected media) for personal use. But: also enables
file sharing. DRM aimed at constraining such copying -- people would
search out hacker communities to enable it illegally.
* "If the only way to assure that artists get paid were the
elimination of the ability to freely move content, then these
technologies to interfere with the freedom to move content would be
justifiable. But what if ... a different system could assure
compensation to artists while also preserving the freedom to move
content easily?"
* Criminalization of citizens threatens privacy. RIAA lawsuits:
Verizon fought to protect user identities, lost. Then RIAA proceeded to
sue individuals identified by ISPs. Fingerprinting technology can
identify users on a network. Tens of millions of citizens subject to
reduced civil liberties. If law can secure rights of authors without
criminalizing millions of citizens, "who is the villain?"
BALANCES
========
* Picture: car of fire, bucket of gasoline, another person panics and
assumes bucket has water, throws it on car, "about to ignite everything
around." Copyright war is "a fire that if left alone would burn itself
out ... policy makers are not willing to leave this fire to itself. ...
Somehow we have to find a way to avoid pouring gasoline on the fire."
Failed efforts, try to understand them:
CHAPTER THIRTEEN: Eldred
=========================
* 1995: Eric Eldred, public domain library available for free. Bono
Extension Act (CTEA), civil disobedience. NET Act -- makes Eldred a
felon. Lessig takes on Eldred's case -- "perpetual terms on the
installment plan" (Jaszi).
* Core corruption in our system of government: incentives to
influence political process (campaign contributions).
* Judgment that "this Supreme Court would not allow Congress to
extend existing terms." US v. Lopez: government: whatever Congress says
affects interstate commerce is unarguable, SC strikes down law, claiming
that Congress would have unlimited power. Same principle that applies
to Commerce Clause ought to apply to Progress Clause (copyright). If
Lopez stood for principle and not politics.
* Eldred not endorsing piracy (fighting piracy of the public domain).
NSA: public domain = "legal piracy".
* Term extensions are for 2% of works with commercial value, but
everything else along for the ride. Intangible property versus tangible
property: public registration of ownership for tangible, but not
intangible (owner cannot be easily located).
* Michael Agee, Hal Roach Studios (Laurel and Hardy films): opposed
CTEA (would allow much historical work to physically decompose without a
viable market to preserve content).
* When commercial life ends, historical life still remains, but
copyright does no good in this context. Obstructs digital archive, big
publishers probably won't do it (no profit). "Where we see the market
is not doing its job, then we should allow nonmarket forces the freedom
to fill the gaps."
* 1999: filed lawsuit for Eldred to declare CETA unconstitutional.
(1) violated "limited Times", (2) violated First Amendment. District
court dismissed claims without hearing an argument. To Appeals, D.C.
Circuit, also dismissed, but with dissent (Sentelle, Tatel), gave case
life. Accepted by Supreme Court February 2002. Hearing October 2002.
* Lost, could/should have been won. LL believes own mistake lost it.
* Early (obvious) -- Geoff Stewart/Dan Bromberg/Don Ayer: "We would
only win ... if we could make the issue seem 'important' to the Supreme
Court. It had to seem as if dramatic harm were being done to free
speech and free culture; otherwise, they would never vote against 'the
most powerful media companies in the world.' "
"I hate this view of the law." Not persuaded "that we had to sell our
case like soap. ... Court must already see the danger and the harm
caused by this sort of law. Why else would they grant the review?"
* Politics: demonstrate support across the political spectrum. Eagle
Forum, Free Software Foundation, copyright scholars, First Amendment
scholars, Progress Clause experts, Internet Archive, American
Association of Law Libraries, National Writers Union, Hal Roach Studios,
plus economists including five Nobel winners: Ronald Coase, James
Buchanan, Milton Friedman, Kenneth Arrow, George Akerlof.
* Lawyers included Charles Fried (Reagan Solicitor General).
Government briefs from only major media, congressmen and copyright
holders (large estates: Seuss, Gershwin).
* SC: Conservatives (Rehnquist, O'Connor, Scalia, Kennedy, Thomas) --
limiting Congress' power, The Rest (Stevens, Souter, Ginsburg, Breyer) -
- Congress has broad discretion. Strategy: "crack open" the
Conservatives, get them to see unlimited power to extend existing terms,
reconcile Eldred with Lopez.
* Government strategy: Precedent -- Congress did it before, should
be allowed to do it again. But Court had intervened in other cycles of
extension, "no reason it couldn't intervene here."
* Oral argument first week in October, moots: Ayer (experienced SC
lawyer) "get them to see the harm" -- LL rejected it (experience as SC
clerk, teaching principles in law school).
* Arguments:
- Congress' enumerated powers, limits.
- O'Connor: History of extensions. Upsetting previous
extensions?
- LL: If flies in the face of framers, then yes.
Two points where "should have seen where the Court was going":
(1)
- Kennedy: '76 Act impeded progress? No evidence.
- LL (mistake): Not an empirical claim, structural limit to
perpetual term.
"That was a correct answer but not the right answer. The right
answer was instead that there was an obvious and profound harm. Any
number of briefs had been written about it. He wanted to hear it And
here was the place Don Ayer's advice should have mattered. This was a
softball; my answer was a swing and a miss."
(2)
- Chief: Right to copy verbatim other people's books?
- LL: Those that should be in the public domain ... under proper
reading of limits.
- Scalia (to Olsen): Functional equivalent of an unlimited time
would violate Constitution, argument being made by petitioners.
- LL (closing rebuttal): History of Court imposing limits.
"All true. But it wasn't going to move the court to my side."
* Government repeatedly was asked, what is the limit? Repeatedly
answered, none. LL thought Court (Conservatives) "would feel itself
constrained by the rule of law it had established elsewhere."
* Jan 15, 2003 7-2 decision against. Reasoning? Lopez not even
cited. Ginsburg ignored enumerated powers. 'Reconcile'-- "simply by
not addressing the argument." Breyer/Stevens dissents. Stevens
"internal to the law: tradition of IP law does not support (cf.
patents). Breyer "external to the Constitution": "effectively
unlimited" therefore unconstitutional. But neither believed in Lopez so
it was not addressed.
* Anger with Conservatives (inconsistency with own method for
interpreting Constitution). Anger with self (view of law interfered
with law "as it is"). Decision to bring the case "was wrong." Media
reaction: public domain over?
CHAPTER FOURTEEN: Eldred II
============================
* NYT Op-Ed piece -- LL proposes: 50 years after publication,
register for small fee ($1), otherwise fall into public domain. "Eldred
Act" (Public Domain Enhancement Act) Would establish "registry where
copyright owners could be identified." 1976 removal of formalities was
because of absurd strictness -- law should forgive innocent mistakes.
* 1908 moral claim: natural right, IP should not be "a second-class
form of property." But law of formalities is intended to assure
creative property "can be efficiently and fairly spread." Without
formalities (registration), "complex, expensive, lawyer transactions
take their place."
* Drafted by Zoe Lofgren (CA). MPAA opposes: (1) Congress "firmly
rejected" renewal (LL: before Internet made subsequent uses more
likely), (2) "harms poor copyright holders" (LL: $1??), (3) extending
terms encourages restoration (LL: only for small % of commercially
valuable, and with registration it is not cut off), (4) "enormous costs"
(LL: less than costs of clearing rights), (5) "risks if underlying
rights fall into PD" (LL: what risk? if PD, film is valid derivative
use).
* Opposition to P2P sharing can be understood as "common sense" but
opposition to Eldred Act "lays bare the naked self-interest driving this
war." Not about protecting their content, but about closing the public
domain (market competition).
CONCLUSION
==========
* AIDS, expensive drugs to treat -- patents. 1997: South Africa,
parallel importation law, US opposed it. Pharmaceutical companies, EU,
joined -- violation of international law. But: does not save drugs for
US citizens, doesn't protect US profits -- "sanctity of property."
Blame drug companies? No. Blame politicians (price differential is
hard to explain in principle). "A sensible patent policy could endorse
and strongly support the patent system without having to reach everyone
everywhere in exactly the same way. ... We as a culture have lost this
sense of balance." 'Property fundamentalism' -- bizarre, blind.
* 2003, WIPO meeting canceled -- open source software. Microsoft
opposed, got US govt to oppose too: WIPO purpose to promote IP rights,
open source runs counter. (1) wrong, OS relies on copyright, (2) WIPO
not about maximalism: balance, (3) interfering with rights of
individuals and companies to waive rights voluntarily (cf. feudalism).
* Moments of hope: FCC ownership rules, activism to oppose relaxation.
Bigness not bad in and of itself, but when tied to maximalist copyright
powers.
* More RIAA lawsuits against individuals, etc. But BBC "Creative
Archive", Gilberto Gil (Brazil) with Creative Commons. Reality is
mixed. "Common sense must revolt. It must act to free culture. Soon,
if this potential is ever to be realized."
AFTERWORD
=========
* Mapping what might be done moving forward.
Us, Now
=======
* Error of excluded middle: "some rights reserved" -- what is being
done now.
Rebuilding freedoms Previously Presumed: Examples
--------------------------------------------------
* Privacy: browsing Marx in a bookstore, architecture inefficient
for gathering personal data (spying), friction, not law, not norms.
Internet: tracking browsing very cheap/easy (Amazon, cookies).
Libraries? "We must take affirmative steps to secure a kind of freedom
that was passively provided before."
* Free software movement: In past HW/SW linked, IBM and Data
General not concerned with controlling SW. Richard Stallman, MIT:
tinkering with code. 1980s: more proprietary code, so 1984, GNU
project.
* Academic/scientific journals: Lexis/Westlaw, electronic-only
publication. Loss of paper publication removes prior freedom to copy.
PLoS tries to restore.
Rebuilding Free Culture: One Idea
----------------------------------
* Creative Commons: "content conducers" to create a public domain
in lieu of legislation. Examples: Cory Doctorow novel, Peter Wayner,
'Free for All', sampling license (Public Enemy), symbolic statement.
Them, Soon
==========
* Legal changes are still needed. Five steps.
1. More Formalities
-------------------
* Deeds, bills of sales, registrations, tickets -- formalities
associated with property, to enforce protection. In past, formalities
obstructed protection, but with Internet no longer such a burden. So,
change, but not back to old system: new system (marking, registration,
renewing).
Registration and Renewal
------------------------
* Old: file application with CO to register/renew, fee. CO
underfunded, mess. Compare with web domain registration, adopt similar
model (multiple registries competing for business, CO sets standards).
Marking
-------
* Old: failure to properly mark forfeits copyright. Too harsh.
Different works had different marks, marking protocol unclear. New:
Adjust as technologies evolve, CO sets protocol to fit with
registration/renewal process.
2. Shorter Terms
----------------
* Keep it short: long enough for incentive but no longer.
* Keep it simple: clarify line between protected and public
domain, "lawyer-free zone".
* Keep it alive: require renewal, with minimal burden.
* Keep it prospective: no retroactive term extensions, because it
creates no additional incentive in the past.
3. Free Use Vs. Fair Use
------------------------
* Derivative use limitations:
- Term: shorter than underlying term ("not important long after
the creative work is done")
- Scope: draw clear lines around regulated and unregulated use,
clarify protected uses, assume others are not protected (statutory
rights)
4. Liberate the Music--Again
----------------------------
* File-sharing comes in four flavors (from chapter five):
A. download instead of purchase
B. download to sample prior to purchase
C. download out-of-print content
D. download non-copyrighted or authorized content
Keep these differences in focus. Today file-sharing is
addictive, but not ten years from now -- technology in transition:
always-on wireless broadband, content on the fly, easier to subscribe to
services than manage own libraries, etc. File-sharing "problem" will
disappear over time. Different "problems" with different categories.
* Type D: make sure that technology for sharing is not rendered
illegal.
* Type C: facilitate access while compensating artists -- used
book stores? statutory license? (incentive to keep in print, choose own
rates instead of statutory rates)
* Hard case is types A and B: modification of Fisher (Harvard)
proposal: tax for statutory license for identified/monitored Internet
use -- modification: temporary to facilitate transition of regimes only,
renewable after finite terms only if deemed necessary
* Summary: Internet in transition, don't regulate for intermediate
stages. Regulate only to minimize harm while enabling most efficient
technology possible.
(1) Guarantee right to share Type-D.
(2) Permit non-commercial Type-C without liability and permit
commercial Type-C at low fixed statutory rate,
(3) During transition, tax/compensate Type A to extent actual
harm is demonstrated.
"The most important thing is to assure artists' compensation
without breaking the Internet."
5. Fire Lots of Lawyers
-----------------------
* Law profession "has become too attuned to the client." Not just
professional bias, but "failure to actually reckon the costs of the
law." Economists assume "transaction costs of the legal system are
slight." But legal system only works for "those with the most
resources." Costs distort free culture.
* "The law should regulate in certain areas of culture -- but it
should regulate culture only where that regulation does good. Yet
lawyers rarely test their power, or the power they promote, against this
simple pragmatic question: 'Will it do good?' When challenged about the
expanding reach of the law, the lawyer answers, 'Why not?' We should
ask, 'Why?' Show me why your regulation of culture is needed. Show me
how it does good. And until you can show me both, keep your lawyers
away."
