Free Culture - How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity
Lawrence Lessig
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Free Culture - How Big Media Uses Technology and the Law to Lock Down
Culture and Control Creativity,
1
To Eric Eldred - whose work first drew me to this cause, and for whom
it continues still.
PREFACE
2
At the end of his review of my first book, Code: And Other
Laws of Cyberspace , David Pogue, a brilliant writer and author of
countless technical and computer- related texts, wrote this:
3
Unlike actual law, Internet software has no capacity to punish. It
doesn't affect people who aren't online (and only a tiny minority of
the world population is). And if you don't like the Internet's system,
you can always flip off the modem.1
1. David Pogue, "Don't Just Chat, Do Something," New York Times,
30 January 2000.
4
Pogue was skeptical of the core argument of the book - that software,
or "code," functioned as a kind of law - and his review suggested the
happy thought that if life in cyberspace got bad, we could always
"drizzle, drazzle, druzzle, drome"- like simply flip a switch and be
back home. Turn off the modem, unplug the computer, and any troubles
that exist in that space wouldn't "affect" us anymore.
5
Pogue might have been right in 1999 - I'm skeptical, but maybe. But
even if he was right then, the point is not right now: Free
Culture is about the troubles the Internet causes even after the
modem is turned off. It is an argument about how the battles that now
rage regarding life on-line have fundamentally affected "people who
aren't online." There is no switch that will insulate us from the
Internet's effect.
6
But unlike Code , the argument here is not much about the
Internet itself. It is instead about the consequence of the Internet to
a part of our tradition that is much more fundamental, and, as hard as
this is for a geek-wanna-be to admit, much more important.
7
That tradition is the way our culture gets made. As I explain in the
pages that follow, we come from a tradition of "free culture" - not
"free" as in "free beer" (to borrow a phrase from the founder of the
free-software movement, 2 but "free" as in "free speech,"
"free markets," "free trade," "free enterprise," "free will," and "free
elections." A free culture supports and protects creators and
innovators. It does this directly by granting intellectual property
rights. But it does so indirectly by limiting the reach of those
rights, to guarantee that follow-on creators and innovators remain
as free as possible from the control of the past. A free culture
is not a culture without property, just as a free market is not a
market in which everything is free. The opposite of a free culture is a
"permission culture" - a culture in which creators get to create only
with the permission of the powerful, or of creators from the past.
2. Richard M. Stallman, Free Software, Free Societies 57 ( Joshua
Gay, ed. 2002).
8
If we understood this change, I believe we would resist it. Not "we" on
the Left or "you" on the Right, but we who have no stake in the
particular industries of culture that defined the twentieth century.
Whether you are on the Left or the Right, if you are in this sense
disinterested, then the story I tell here will trouble you. For the
changes I describe affect values that both sides of our political
culture deem fundamental.
9
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that would
relax limits on media concentration, an extraordinary coalition
generated more than 700,000 letters to the FCC opposing the change. As
William Safire described marching "uncomfortably alongside CodePink
Women for Peace and the National Rifle Association, between liberal
Olympia Snowe and conservative Ted Stevens," he formulated perhaps most
simply just what was at stake: the concentration of power. And as he
asked,
10
Does that sound unconservative? Not to me. The concentration of power -
political, corporate, media, cultural - should be anathema to
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy."3
3. William Safire, "The Great Media Gulp," New York Times, 22 May
2003.
11
This idea is an element of the argument of Free Culture , though
my focus is not just on the concentration of power produced by
concentrations in ownership, but more importantly, if because less
visibly, on the concentration of power produced by a radical change in
the effective scope of the law. The law is changing; that change is
altering the way our culture gets made; that change should worry you -
whether or not you care about the Internet, and whether you're on
Safire's left or on his right.
12
The inspiration for the title and for much of the argument of
this book comes from the work of Richard Stallman and the Free Software
Foundation. Indeed, as I reread Stallman's own work, especially the
essays in Free Software, Free Society , I realize that all of the
theoretical insights I develop here are insights Stallman described
decades ago. One could thus well argue that this work is "merely"
derivative.
13
I accept that criticism, if indeed it is a criticism. The work of a
lawyer is always derivative, and I mean to do nothing more in this book
than to remind a culture about a tradition that has always been its
own. Like Stallman, I defend that tradition on the basis of values.
Like Stallman, I believe those are the values of freedom. And like
Stallman, I believe those are values of our past that will need to be
defended in our future. A free culture has been our past, but it will
only be our future if we change the path we are on right now.
14
Like Stallman's arguments for free software, an argument for free
culture stumbles on a confusion that is hard to avoid, and even harder
to understand. A free culture is not a culture without property; it is
not a culture in which artists don't get paid. A culture without
property, or in which creators can't get paid, is anarchy, not freedom.
Anarchy is not what I advance here.
15
Instead, the free culture that I defend in this book is a balance
between anarchy and control. A free culture, like a free market, is
filled with property. It is filled with rules of property and contract
that get enforced by the state. But just as a free market is perverted
if its property becomes feudal, so too can a free culture be queered by
extremism in the property rights that define it. That is what I fear
about our culture today. It is against that extremism that this book is
written.
16
INTRODUCTION
17
On December 17, 1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
heavier-than-air, self- propelled vehicle could fly. The moment was
electric and its importance widely understood. Almost immediately,
there was an explosion of interest in this newfound technology of
manned flight, and a gaggle of innovators began to build upon it.
18
At the time the Wright brothers invented the airplane, American law
held that a property owner presumptively owned not just the surface of
his land, but all the land below, down to the center of the earth, and
all the space above, to "an indefinite extent, upwards."4 For
many years, scholars had puzzled about how best to interpret the idea
that rights in land ran to the heavens. Did that mean that you owned
the stars? Could you prosecute geese for their willful and regular
trespass?
4. St. George Tucker, Blackstone's Commentaries 3 (South
Hackensack, N.J.: Rothman Reprints, 1969), 18.
19
Then came airplanes, and for the first time, this principle of American
law - deep within the foundations of our tradition, and acknowledged by
the most important legal thinkers of our past - mattered. If my land
reaches to the heavens, what happens when United flies over my field?
Do I have the right to banish it from my property? Am I allowed to
enter into an exclusive license with Delta Airlines? Could we set up an
auction to decide how much these rights are worth?
20
In 1945, these questions became a federal case. When North Carolina
farmers Thomas Lee and Tinie Causby started losing chickens because of
low-flying military aircraft (the terrified chickens apparently flew
into the barn walls and died), the Causbys filed a lawsuit saying that
the government was trespassing on their land. The airplanes, of course,
never touched the surface of the Causbys' land. But if, as Blackstone,
Kent, and Coke had said, their land reached to "an indefinite extent,
upwards," then the government was trespassing on their property, and
the Causbys wanted it to stop.
21
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to
the heavens, then Congress's declaration could well have been an
unconstitutional "taking" of property without compensation. The Court
acknowledged that "it is ancient doctrine that common law ownership of
the land extended to the periphery of the universe." But Justice
Douglas had no patience for ancient doctrine. In a single paragraph,
hundreds of years of property law were erased. As he wrote for the
Court,
22
[The] doctrine has no place in the modern world. The air is a public
highway, as Congress has declared. Were that not true, every
transcontinental flight would subject the operator to countless
trespass suits. Common sense revolts at the idea. To recognize such
private claims to the airspace would clog these highways, seriously
interfere with their control and development in the public interest,
and transfer into private ownership that to which only the public has a
just claim."5
5. United States v. Causby, U.S. 328 (1946): 256, 261. The Court did
find that there could be a "taking" if the government's use of its land
effectively destroyed the value of the Causbys' land. This example was
suggested to me by Keith Aoki's wonderful piece, "(Intellectual)
Property and Sovereignty: Notes Toward a Cultural Geography of
Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also
Paul Goldstein, Real Property (Mineola, N.Y.: Foundation Press,
1984), 1112-13.
23
"Common sense revolts at the idea."
24
This is how the law usually works. Not often this abruptly or
impatiently, but eventually, this is how it works. It was Douglas's
style not to dither. Other justices would have blathered on for pages
to reach the conclusion that Douglas holds in a single line: "Common
sense revolts at the idea." But whether it takes pages or a few words,
it is the special genius of a common law system, as ours is, that the
law adjusts to the technologies of the time. And as it adjusts, it
changes. Ideas that were as solid as rock in one age crumble in
another.
25
Or at least, this is how things happen when there's no one powerful on
the other side of the change. The Causbys were just farmers. And though
there were no doubt many like them who were upset by the growing
traffic in the air (though one hopes not many chickens flew themselves
into walls), the Causbys of the world would find it very hard to unite
and stop the idea, and the technology, that the Wright brothers had
birthed. The Wright brothers spat airplanes into the technological meme
pool; the idea then spread like a virus in a chicken coop; farmers like
the Causbys found themselves surrounded by "what seemed reasonable"
given the technology that the Wrights had produced. They could stand on
their farms, dead chickens in hand, and shake their fists at these
newfangled technologies all they wanted. They could call their
representatives or even file a lawsuit. But in the end, the force of
what seems "obvious" to everyone else - the power of "common sense" -
would prevail. Their "private interest" would not be allowed to defeat
an obvious public gain.
26
Edwin Howard Armstrong is one of America's forgotten inventor
geniuses. He came to the great American inventor scene just after the
titans Thomas Edison and Alexander Graham Bell. But his work in the
area of radio technology was perhaps the most important of any single
inventor in the first fifty years of radio. He was better educated than
Michael Faraday, who as a bookbinder's apprentice had discovered
electric induction in 1831. But he had the same intuition about how the
world of radio worked, and on at least three occasions, Armstrong
invented profoundly important technologies that advanced our
understanding of radio.
27
On the day after Christmas, 1933, four patents were issued to Armstrong
for his most significant invention - FM radio. Until then, consumer
radio had been amplitude-modulated (AM) radio. The theorists of the day
had said that frequency-modulated (FM) radio could never work. They
were right about FM radio in a narrow band of spectrum. But Armstrong
discovered that frequency-modulated radio in a wide band of spectrum
would deliver an astonishing fidelity of sound, with much less
transmitter power and static.
28
On November 5, 1935, he demonstrated the technology at a meeting of the
Institute of Radio Engineers at the Empire State Building in New York
City. He tuned his radio dial across a range of AM stations, until the
radio locked on a broadcast that he had arranged from seventeen miles
away. The radio fell totally silent, as if dead, and then with a
clarity no one else in that room had ever heard from an electrical
device, it produced the sound of an announcer's voice: "This is amateur
station W2AG at Yonkers, New York, operating on frequency modulation at
two and a half meters."
29
The audience was hearing something no one had thought possible:
30
A glass of water was poured before the microphone in Yonkers; it
sounded like a glass of water being poured. ... A paper was crumpled
and torn; it sounded like paper and not like a crackling forest fire.
... Sousa marches were played from records and a piano solo and guitar
number were performed. ... The music was projected with a live-ness
rarely if ever heard before from a radio 'music box.' "6
6. Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
(Philadelphia: J. B. Lipincott Company, 1956), 209.
31
As our own common sense tells us, Armstrong had discovered a vastly
superior radio technology. But at the time of his invention, Armstrong
was working for RCA. RCA was the dominant player in the then dominant
AM radio market. By 1935, there were a thousand radio stations across
the United States, but the stations in large cities were all owned by a
handful of networks.
32
RCA's president, David Sarnoff, a friend of Armstrong's, was eager that
Armstrong discover a way to remove static from AM radio. So Sarnoff was
quite excited when Armstrong told him he had a device that removed
static from "radio." But when Armstrong demonstrated his invention,
Sarnoff was not pleased.
33
I thought Armstrong would invent some kind of a filter to remove static
from our AM radio. I didn't think he'd start a revolution - start up a
whole damn new industry to compete with RCA."7
7. See "Saints: The Heroes and Geniuses of the Electronic Era," First
Electronic Church of America, at www.webstationone.com/fecha, available
at link #1.
34
Armstrong's invention threatened RCA's AM empire, so the company
launched a campaign to smother FM radio. While FM may have been a
superior technology, Sarnoff was a superior tactician. As one author
described,
35
The forces for FM, largely engineering, could not overcome the weight
of strategy devised by the sales, patent, and legal offices to subdue
this threat to corporate position. For FM, if allowed to develop
unrestrained, posed ... a complete reordering of radio power ... and
the eventual overthrow of the carefully restricted AM system on which
RCA had grown to power."8
8. Lessing, 226.
36
RCA at first kept the technology in house, insisting that further tests
were needed. When, after two years of testing, Armstrong grew
impatient, RCA began to use its power with the government to stall FM
radio's deployment generally. In 1936, RCA hired the former head of the
FCC and assigned him the task of assuring that the FCC assign spectrum
in a way that would castrate FM - principally by moving FM radio to a
different band of spectrum. At first, these efforts failed. But when
Armstrong and the nation were distracted by World War II, RCA's work
began to be more successful. Soon after the war ended, the FCC
announced a set of policies that would have one clear effect: FM radio
would be crippled. As Lawrence Lessing described it,
37
The series of body blows that FM radio received right after the war, in
a series of rulings manipulated through the FCC by the big radio
interests, were almost incredible in their force and
deviousness."9
9. Lessing, 256.
38
To make room in the spectrum for RCA's latest gamble, television, FM
radio users were to be moved to a totally new spectrum band. The power
of FM radio stations was also cut, meaning FM could no longer be used
to beam programs from one part of the country to another. (This change
was strongly supported by AT&T, because the loss of FM relaying
stations would mean radio stations would have to buy wired links from
AT&T.) The spread of FM radio was thus choked, at least
temporarily.
39
Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's
patents. After incorporating FM technology into the emerging standard
for television, RCA declared the patents invalid - baselessly, and
almost fifteen years after they were issued. It thus refused to pay him
royalties. For six years, Armstrong fought an expensive war of
litigation to defend the patents. Finally, just as the patents expired,
RCA offered a settlement so low that it would not even cover
Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954
Armstrong wrote a short note to his wife and then stepped out of a
thirteenth- story window to his death.
40
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From the
beginning, government and government agencies have been subject to
capture. They are more likely captured when a powerful interest is
threatened by either a legal or technical change. That powerful
interest too often exerts its influence within the government to get
the government to protect it. The rhetoric of this protection is of
course always public spirited; the reality is something different.
Ideas that were as solid as rock in one age, but that, left to
themselves, would crumble in another, are sustained through this subtle
corruption of our political process. RCA had what the Causbys did not:
the power to stifle the effect of technological change.
41
There's no single inventor of the Internet. Nor is there any
good date upon which to mark its birth. Yet in a very short time, the
Internet has become part of ordinary American life. According to the
Pew Internet and American Life Project, 58 percent of Americans had
access to the Internet in 2002, up from 49 percent two years
before.10 That number could well exceed two thirds of the
nation by the end of 2004.
10. Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look
at Internet Access and the Digital Divide," Pew Internet and American
Life Project, 15 April 2003: 6, available at link #2.
42
As the Internet has been integrated into ordinary life, it has changed
things. Some of these changes are technical - the Internet has made
communication faster, it has lowered the cost of gathering data, and so
on. These technical changes are not the focus of this book. They are
important. They are not well understood. But they are the sort of thing
that would simply go away if we all just switched the Internet off.
They don't affect people who don't use the Internet, or at least they
don't affect them directly. They are the proper subject of a book about
the Internet. But this is not a book about the Internet.
43
Instead, this book is about an effect of the Internet beyond the
Internet itself: an effect upon how culture is made. My claim is that
the Internet has induced an important and unrecognized change in that
process. That change will radically transform a tradition that is as
old as the Republic itself. Most, if they recognized this change, would
reject it. Yet most don't even see the change that the Internet has
introduced.
44
We can glimpse a sense of this change by distinguishing between
commercial and noncommercial culture, and by mapping the law's
regulation of each. By "commercial culture" I mean that part of our
culture that is produced and sold or produced to be sold. By
"noncommercial culture" I mean all the rest. When old men sat around
parks or on street corners telling stories that kids and others
consumed, that was noncommercial culture. When Noah Webster published
his "Reader," or Joel Barlow his poetry, that was commercial culture.
45
At the beginning of our history, and for just about the whole of our
tradition, noncommercial culture was essentially unregulated. Of
course, if your stories were lewd, or if your song disturbed the peace,
then the law might intervene. But the law was never directly concerned
with the creation or spread of this form of culture, and it left this
culture "free." The ordinary ways in which ordinary individuals shared
and transformed their culture - telling stories, reenacting scenes from
plays or TV, participating in fan clubs, sharing music, making tapes -
were left alone by the law.
46
The focus of the law was on commercial creativity. At first slightly,
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they
could sell those exclusive rights in a commercial
marketplace.11 This is also, of course, an important part of
creativity and culture, and it has become an increasingly important
part in America. But in no sense was it dominant within our tradition.
It was instead just one part, a controlled part, balanced with the
free.
11. This is not the only purpose of copyright, though it is the
overwhelmingly primary purpose of the copyright established in the
federal constitution. State copyright law historically protected not
just the commercial interest in publication, but also a privacy
interest. By granting authors the exclusive right to first publication,
state copyright law gave authors the power to control the spread of
facts about them. See Samuel D. Warren and Louis D. Brandeis, "The
Right to Privacy," Harvard Law Review 4 (1890): 193, 198-200.
47
This rough divide between the free and the controlled has now been
erased.12 The Internet has set the stage for this erasure and,
pushed by big media, the law has now affected it. For the first time in
our tradition, the ordinary ways in which individuals create and share
culture fall within the reach of the regulation of the law, which has
expanded to draw within its control a vast amount of culture and
creativity that it never reached before. The technology that preserved
the balance of our history - between uses of our culture that were free
and uses of our culture that were only upon permission - has been
undone. The consequence is that we are less and less a free culture,
more and more a permission culture.
12. 9. See Jessica Litman, Digital Copyright (New York:
Prometheus Books, 2001), ch. 13.
48
This change gets justified as necessary to protect commercial
creativity. And indeed, protectionism is precisely its motivation. But
the protectionism that justifies the changes that I will describe below
is not the limited and balanced sort that has defined the law in the
past. This is not a protectionism to protect artists. It is instead a
protectionism to protect certain forms of business. Corporations
threatened by the potential of the Internet to change the way both
commercial and noncommercial culture are made and shared have united to
induce lawmakers to use the law to protect them. It is the story of RCA
and Armstrong; it is the dream of the Causbys.
49
For the Internet has unleashed an extraordinary possibility for many to
participate in the process of building and cultivating a culture that
reaches far beyond local boundaries. That power has changed the
marketplace for making and cultivating culture generally, and that
change in turn threatens established content industries. The Internet
is thus to the industries that built and distributed content in the
twentieth century what FM radio was to AM radio, or what the truck was
to the railroad industry of the nineteenth century: the beginning of
the end, or at least a substantial transformation. Digital
technologies, tied to the Internet, could produce a vastly more
competitive and vibrant market for building and cultivating culture;
that market could include a much wider and more diverse range of
creators; those creators could produce and distribute a much more
vibrant range of creativity; and depending upon a few important
factors, those creators could earn more on average from this system
than creators do today - all so long as the RCAs of our day don't use
the law to protect themselves against this competition.
50
Yet, as I argue in the pages that follow, that is precisely what is
happening in our culture today. These modern-day equivalents of the
early twentieth-century radio or nineteenth-century railroads are using
their power to get the law to protect them against this new, more
efficient, more vibrant technology for building culture. They are
succeeding in their plan to remake the Internet before the Internet
remakes them.
51
It doesn't seem this way to many. The battles over copyright and the
Internet seem remote to most. To the few who follow them, they seem
mainly about a much simpler brace of questions - whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
has been waged against the technologies of the Internet - what Motion
Picture Association of America (MPAA) president Jack Valenti calls his
"own terrorist war"13 - has been framed as a battle about the
rule of law and respect for property. To know which side to take in
this war, most think that we need only decide whether we're for
property or against it.
13. Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates Use
New Tools to Turn the Net into an Illicit Video Club," New York
Times, 17 January 2002.
52
If those really were the choices, then I would be with Jack Valenti and
the content industry. I, too, am a believer in property, and especially
in the importance of what Mr. Valenti nicely calls "creative property."
I believe that "piracy" is wrong, and that the law, properly tuned,
should punish "piracy," whether on or off the Internet.
53
But those simple beliefs mask a much more fundamental question and a
much more dramatic change. My fear is that unless we come to see this
change, the war to rid the world of Internet "pirates" will also rid
our culture of values that have been integral to our tradition from the
start.
54
These values built a tradition that, for at least the first 180 years
of our Republic, guaranteed creators the right to build freely upon
their past, and protected creators and innovators from either state or
private control. The First Amendment protected creators against state
control. And as Professor Neil Netanel powerfully argues,14
copyright law, properly balanced, protected creators against private
control. Our tradition was thus neither Soviet nor the tradition of
patrons. It instead carved out a wide berth within which creators could
cultivate and extend our culture.
14. Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale
Law Journal 106 (1996): 283.
55
Yet the law's response to the Internet, when tied to changes in the
technology of the Internet itself, has massively increased the
effective regulation of creativity in America. To build upon or
critique the culture around us one must ask, Oliver Twist - like, for
permission first. Permission is, of course, often granted - but it is
not often granted to the critical or the independent. We have built a
kind of cultural nobility; those within the noble class live easily;
those outside it don't. But it is nobility of any form that is alien to
our tradition.
56
The story that follows is about this war. Is it not about the
"centrality of technology" to ordinary life. I don't believe in gods,
digital or otherwise. Nor is it an effort to demonize any individual or
group, for neither do I believe in a devil, corporate or otherwise. It
is not a morality tale. Nor is it a call to jihad against an industry.
57
It is instead an effort to understand a hopelessly destructive war
inspired by the technologies of the Internet but reaching far beyond
its code. And by understanding this battle, it is an effort to map
peace. There is no good reason for the current struggle around Internet
technologies to continue. There will be great harm to our tradition and
culture if it is allowed to continue unchecked. We must come to
understand the source of this war. We must resolve it soon.
58
Like the Causbys' battle, this war is, in part, about
"property." The property of this war is not as tangible as the
Causbys', and no innocent chicken has yet to lose its life. Yet the
ideas surrounding this "property" are as obvious to most as the
Causbys' claim about the sacredness of their farm was to them. We are
the Causbys. Most of us take for granted the extraordinarily powerful
claims that the owners of "intellectual property" now assert. Most of
us, like the Causbys, treat these claims as obvious. And hence we, like
the Causbys, object when a new technology interferes with this
property. It is as plain to us as it was to them that the new
technologies of the Internet are "trespassing" upon legitimate claims
of "property." It is as plain to us as it was to them that the law
should intervene to stop this trespass.
59
And thus, when geeks and technologists defend their Armstrong or Wright
brothers technology, most of us are simply unsympathetic. Common sense
does not revolt. Unlike in the case of the unlucky Causbys, common
sense is on the side of the property owners in this war. Unlike the
lucky Wright brothers, the Internet has not inspired a revolution on
its side.
60
My hope is to push this common sense along. I have become increasingly
amazed by the power of this idea of intellectual property and, more
importantly, its power to disable critical thought by policy makers and
citizens. There has never been a time in our history when more of our
"culture" was as "owned" as it is now. And yet there has never been a
time when the concentration of power to control the uses of
culture has been as unquestioningly accepted as it is now.
61
The puzzle is, Why?
62
Is it because we have come to understand a truth about the value and
importance of absolute property over ideas and culture? Is it because
we have discovered that our tradition of rejecting such an absolute
claim was wrong?
63
Or is it because the idea of absolute property over ideas and culture
benefits the RCAs of our time and fits our own unreflective intuitions?
64
Is the radical shift away from our tradition of free culture an
instance of America correcting a mistake from its past, as we did after
a bloody war with slavery, and as we are slowly doing with inequality?
Or is the radical shift away from our tradition of free culture yet
another example of a political system captured by a few powerful
special interests?
65
Does common sense lead to the extremes on this question because common
sense actually believes in these extremes? Or does common sense stand
silent in the face of these extremes because, as with Armstrong versus
RCA, the more powerful side has ensured that it has the more powerful
view?
66
I don't mean to be mysterious. My own views are resolved. I believe it
was right for common sense to revolt against the extremism of the
Causbys. I believe it would be right for common sense to revolt against
the extreme claims made today on behalf of "intellectual property."
What the law demands today is increasingly as silly as a sheriff
arresting an airplane for trespass. But the consequences of this
silliness will be much more profound.
67
The struggle that rages just now centers on two ideas: "piracy"
and "property." My aim in this book's next two parts is to explore
these two ideas.
68
My method is not the usual method of an academic. I don't want to
plunge you into a complex argument, buttressed with references to
obscure French theorists' however natural that is for the weird sort we
academics have become. Instead I begin in each part with a collection
of stories that set a context within which these apparently simple
ideas can be more fully understood.
69
The two sections set up the core claim of this book: that while the
Internet has indeed produced something fantastic and new, our
government, pushed by big media to respond to this "something new," is
destroying something very old. Rather than understanding the changes
the Internet might permit, and rather than taking time to let "common
sense" resolve how best to respond, we are allowing those most
threatened by the changes to use their power to change the law - and
more importantly, to use their power to change something fundamental
about who we have always been.
70
We allow this, I believe, not because it is right, and not because most
of us really believe in these changes. We allow it because the
interests most threatened are among the most powerful players in our
depressingly compromised process of making law. This book is the story
of one more consequence of this form of corruption - a consequence to
which most of us remain oblivious.
71
"PIRACY"
72
Since the inception of the law regulating creative property,
there has been a war against "piracy." The precise contours of this
concept, "piracy," are hard to sketch, but the animating injustice is
easy to capture. As Lord Mansfield wrote in a case that extended the
reach of English copyright law to include sheet music,
73
A person may use the copy by playing it, but he has no right to rob the
author of the profit, by multiplying copies and disposing of them for
his own use."15
15. Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
74
Today we are in the middle of another "war" against "piracy." The
Internet has provoked this war. The Internet makes possible the
efficient spread of content. Peer-to-peer (p2p) file sharing is among
the most efficient of the efficient technologies the Internet enables.
Using distributed intelligence, p2p systems facilitate the easy spread
of content in a way unimagined a generation ago.
75
This efficiency does not respect the traditional lines of
copyright. The network doesn't discriminate between the sharing of
copyrighted and uncopyrighted content. Thus has there been a vast
amount of sharing of copyrighted content. That sharing in turn has
excited the war, as copyright owners fear the sharing will "rob the
author of the profit."
76
The warriors have turned to the courts, to the legislatures, and
increasingly to technology to defend their "property" against this
"piracy." A generation of Americans, the warriors warn, is being raised
to believe that "property" should be "free." Forget tattoos, never mind
body piercing - our kids are becoming thieves!
77
There's no doubt that "piracy" is wrong, and that pirates should be
punished. But before we summon the executioners, we should put this
notion of "piracy" in some context. For as the concept is increasingly
used, at its core is an extraordinary idea that is almost certainly
wrong.
78
The idea goes something like this:
79
Creative work has value; whenever I use, or take, or build upon the
creative work of others, I am taking from them something of value.
Whenever I take something of value from someone else, I should have
their permission. The taking of something of value from someone else
without permission is wrong. It is a form of piracy."
80
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the "if value, then right"
theory of creative property16 - if there is value, then
someone must have a right to that value. It is the perspective that led
a composers' rights organization, ASCAP, to sue the Girl Scouts for
failing to pay for the songs that girls sang around Girl Scout
campfires.17 There was "value" (the songs) so there must have
been a "right" - even against the Girl Scouts.
16. See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as
Language in the Pepsi Generation," Notre Dame Law Review 65
(1990): 397.
17. Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
Up," Wall Street Journal, 21 August 1996, available at link #3;
Jonathan Zittrain, "Calling Off the Copyright War: In Battle of
Property vs. Free Speech, No One Wins," Boston Globe, 24
November 2002.
81
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
of law protecting creative property. But the "if value, then right"
theory of creative property has never been America's theory of creative
property. It has never taken hold within our law.
82
Instead, in our tradition, intellectual property is an instrument. It
sets the groundwork for a richly creative society but remains
subservient to the value of creativity. The current debate has this
turned around. We have become so concerned with protecting the
instrument that we are losing sight of the value.
83
The source of this confusion is a distinction that the law no longer
takes care to draw - the distinction between republishing someone's
work on the one hand and building upon or transforming that work on the
other. Copyright law at its birth had only publishing as its concern;
copyright law today regulates both.
84
Before the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive; that
meant the vast majority of publishing was commercial. Commercial
entities could bear the burden of the law - even the burden of the
Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
85
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
commercial creators but effectively that of anyone. Although that
expansion would not matter much if copyright law regulated only
"copying," when the law regulates as broadly and obscurely as it does,
the extension matters a lot. The burden of this law now vastly
outweighs any original benefit - certainly as it affects noncommercial
creativity, and increasingly as it affects commercial creativity as
well. Thus, as we'll see more clearly in the chapters below, the law's
role is less and less to support creativity, and more and more to
protect certain industries against competition. Just at the time
digital technology could unleash an extraordinary range of commercial
and noncommercial creativity, the law burdens this creativity with
insanely complex and vague rules and with the threat of obscenely
severe penalties. We may be seeing, as Richard Florida writes, the
"Rise of the Creative Class."18 Unfortunately, we are also
seeing an extraordinary rise of regulation of this creative class.
18. In The Rise of the Creative Class (New York: Basic Books,
2002), Richard Florida documents a shift in the nature of labor toward
a labor of creativity. His work, however, doesn't directly address the
legal conditions under which that creativity is enabled or stifled. I
certainly agree with him about the importance and significance of this
change, but I also believe the conditions under which it will be
enabled are much more tenuous.
86
These burdens make no sense in our tradition. We should begin by
understanding that tradition a bit more and by placing in their proper
context the current battles about behavior labeled "piracy."
87
88
In 1928, a cartoon character was born. An early Mickey Mouse
made his debut in May of that year, in a silent flop called Plane
Crazy . In November, in New York City's Colony Theater, in the first
widely distributed cartoon synchronized with sound, Steamboat
Willie brought to life the character that would become Mickey
Mouse.
89
Synchronized sound had been introduced to film a year earlier in the
movie The Jazz Singer . That success led Walt Disney to copy the
technique and mix sound with cartoons. No one knew whether it would
work or, if it did work, whether it would win an audience. But when
Disney ran a test in the summer of 1928, the results were unambiguous.
As Disney describes that first experiment,
90
A couple of my boys could read music, and one of them could play a
mouth organ. We put them in a room where they could not see the screen
and arranged to pipe their sound into the room where our wives and
friends were going to see the picture.
91
The boys worked from a music and sound-effects score. After several
false starts, sound and action got off with the gun. The mouth organist
played the tune, the rest of us in the sound department bammed tin pans
and blew slide whistles on the beat. The synchronization was pretty
close.
92
The effect on our little audience was nothing less than electric. They
responded almost instinctively to this union of sound and motion. I
thought they were kidding me. So they put me in the audience and ran
the action again. It was terrible, but it was wonderful! And it was
something new!"19
19. Leonard Maltin, Of Mice and Magic: A History of American Animated
Cartoons (New York: Penguin Books, 1987), 34-35.
93
Disney's then partner, and one of animation's most extraordinary
talents, Ub Iwerks, put it more strongly: "I have never been so
thrilled in my life. Nothing since has ever equaled it."
94
Disney had created something very new, based upon something relatively
new. Synchronized sound brought life to a form of creativity that had
rarely - except in Disney's hands - been anything more than filler for
other films. Throughout animation's early history, it was Disney's
invention that set the standard that others struggled to match. And
quite often, Disney's great genius, his spark of creativity, was built
upon the work of others.
95
This much is familiar. What you might not know is that 1928 also marks
another important transition. In that year, a comic (as opposed to
cartoon) genius created his last independently produced silent film.
That genius was Buster Keaton. The film was Steamboat Bill, Jr.
96
Keaton was born into a vaudeville family in 1895. In the era of silent
film, he had mastered using broad physical comedy as a way to spark
uncontrollable laughter from his audience. Steamboat Bill, Jr. was a
classic of this form, famous among film buffs for its incredible
stunts. The film was classic Keaton - wildly popular and among the best
of its genre.
97
Steamboat Bill, Jr. appeared before Disney's cartoon
Steamboat Willie . The coincidence of titles is not coincidental.
Steamboat Willie is a direct cartoon parody of Steamboat
Bill,20 and both are built upon a common song as a source. It
is not just from the invention of synchronized sound in The Jazz
Singer that we get Steamboat Willie . It is also from Buster
Keaton's invention of Steamboat Bill, Jr., itself inspired by the song
"Steamboat Bill," that we get Steamboat Willie, and then from Steamboat
Willie, Mickey Mouse.
20. I am grateful to David Gerstein and his careful history, described
at link #4. According to Dave Smith of the Disney Archives, Disney paid
royalties to use the music for five songs in Steamboat Willie:
"Steamboat Bill," "The Simpleton" (Delille), "Mischief Makers"
(Carbonara), "Joyful Hurry No. 1" (Baron), and "Gawky Rube" (Lakay). A
sixth song, "The Turkey in the Straw," was already in the public
domain. Letter from David Smith to Harry Surden, 10 July 2003, on file
with author.
98
This "borrowing" was nothing unique, either for Disney or for the
industry. Disney was always parroting the feature-length mainstream
films of his day.21 So did many others. Early cartoons are
filled with knockoffs - slight variations on winning themes; retellings
of ancient stories. The key to success was the brilliance of the
differences. With Disney, it was sound that gave his animation its
spark. Later, it was the quality of his work relative to the
production-line cartoons with which he competed. Yet these additions
were built upon a base that was borrowed. Disney added to the work of
others before him, creating something new out of something just barely
old.
21. He was also a fan of the public domain. See Chris Sprigman, "The
Mouse that Ate the Public Domain," Findlaw, 5 March 2002, at link #5.
99
Sometimes this borrowing was slight. Sometimes it was significant.
Think about the fairy tales of the Brothers Grimm. If you're as
oblivious as I was, you're likely to think that these tales are happy,
sweet stories, appropriate for any child at bedtime. In fact, the Grimm
fairy tales are, well, for us, grim. It is a rare and perhaps overly
ambitious parent who would dare to read these bloody, moralistic
stories to his or her child, at bedtime or anytime.
100
Disney took these stories and retold them in a way that carried them
into a new age. He animated the stories, with both characters and
light. Without removing the elements of fear and danger altogether, he
made funny what was dark and injected a genuine emotion of compassion
where before there was fear. And not just with the work of the Brothers
Grimm. Indeed, the catalog of Disney work drawing upon the work of
others is astonishing when set together: Snow White (1937),
Fantasia (1940), Pinocchio (1940), Dumbo (1941),
Bambi (1942), Song of the South (1946), Cinderella
(1950), Alice in Wonderland (1951), Robin Hood (1952),
Peter Pan (1953), Lady and the Tramp (1955), Mulan
(1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
The Sword in the Stone (1963), and The Jungle Book (1967)
- not to mention a recent example that we should perhaps quickly
forget, Treasure Planet (2003). In all of these cases, Disney
(or Disney, Inc.) ripped creativity from the culture around him, mixed
that creativity with his own extraordinary talent, and then burned that
mix into the soul of his culture. Rip, mix, and burn.
101
This is a kind of creativity. It is a creativity that we should
remember and celebrate. There are some who would say that there is no
creativity except this kind. We don't need to go that far to recognize
its importance. We could call this "Disney creativity," though that
would be a bit misleading. It is, more precisely, "Walt Disney
creativity" - a form of expression and genius that builds upon the
culture around us and makes it something different.
102
In 1928, the culture that Disney was free to draw upon was relatively
fresh. The public domain in 1928 was not very old and was therefore
quite vibrant. The average term of copyright was just around thirty
years - for that minority of creative work that was in fact
copy-righted.22 That means that for thirty years, on average,
the authors or copyright holders of a creative work had an "exclusive
right" to control certain uses of the work. To use this copyrighted
work in limited ways required the permission of the copyright owner.
22. Until 1976, copyright law granted an author the possibility of two
terms: an initial term and a renewal term. I have calculated the
"average" term by determining the weighted average of total
registrations for any particular year, and the proportion renewing.
Thus, if 100 copyrights are registered in year 1, and only 15 are
renewed, and the renewal term is 28 years, then the average term is
32.2 years. For the renewal data and other relevant data, see the Web
site associated with this book, available at link #6.
103
At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
permission and, hence, no lawyers. The public domain is a "lawyer-free
zone." Thus, most of the content from the nineteenth century was free
for Disney to use and build upon in 1928. It was free for anyone -
whether connected or not, whether rich or not, whether approved or not
- to use and build upon.
104
This is the ways things always were - until quite recently. For most of
our history, the public domain was just over the horizon. From 1790
until 1978, the average copyright term was never more than thirty-two
years, meaning that most culture just a generation and a half old was
free for anyone to build upon without the permission of anyone else.
Today's equivalent would be for creative work from the 1960s and 1970s
to now be free for the next Walt Disney to build upon without
permission. Yet today, the public domain is presumptive only for
content from before the Great Depression.
105
Of course, Walt Disney had no monopoly on "Walt Disney
creativity." Nor does America. The norm of free culture has, until
recently, and except within totalitarian nations, been broadly
exploited and quite universal.
106
Consider, for example, a form of creativity that seems strange to many
Americans but that is inescapable within Japanese culture:
manga , or comics. The Japanese are fanatics about comics. Some
40 percent of publications are comics, and 30 percent of publication
revenue derives from comics. They are everywhere in Japanese society,
at every magazine stand, carried by a large proportion of commuters on
Japan's extraordinary system of public transportation.
107
Americans tend to look down upon this form of culture. That's an
unattractive characteristic of ours. We're likely to misunderstand much
about manga, because few of us have ever read anything close to the
stories that these "graphic novels" tell. For the Japanese, manga cover
every aspect of social life. For us, comics are "men in tights." And
anyway, it's not as if the New York subways are filled with readers of
Joyce or even Hemingway. People of different cultures distract
themselves in different ways, the Japanese in this interestingly
different way.
108
But my purpose here is not to understand manga. It is to describe a
variant on manga that from a lawyer's perspective is quite odd, but
from a Disney perspective is quite familiar.
109
This is the phenomenon of doujinshi . Doujinshi are also comics,
but they are a kind of copycat comic. A rich ethic governs the creation
of doujinshi. It is not doujinshi if it is just a copy; the
artist must make a contribution to the art he copies, by transforming
it either subtly or significantly. A doujinshi comic can thus take a
mainstream comic and develop it differently - with a different story
line. Or the comic can keep the character in character but change its
look slightly. There is no formula for what makes the doujinshi
sufficiently "different." But they must be different if they are to be
considered true doujinshi. Indeed, there are committees that review
doujinshi for inclusion within shows and reject any copycat comic that
is merely a copy.
110
These copycat comics are not a tiny part of the manga market. They are
huge. More than 33,000 "circles" of creators from across Japan produce
these bits of Walt Disney creativity. More than 450,000 Japanese come
together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
mainstream commercial manga market. In some ways, it obviously competes
with that market, but there is no sustained effort by those who control
the commercial manga market to shut the doujinshi market down. It
flourishes, despite the competition and despite the law.
111
The most puzzling feature of the doujinshi market, for those trained in
the law, at least, is that it is allowed to exist at all. Under
Japanese copyright law, which in this respect (on paper) mirrors
American copyright law, the doujinshi market is an illegal one.
Doujinshi are plainly "derivative works." There is no general practice
by doujinshi artists of securing the permission of the manga creators.
Instead, the practice is simply to take and modify the creations of
others, as Walt Disney did with Steamboat Bill, Jr . Under both
Japanese and American law, that "taking" without the permission of the
original copyright owner is illegal. It is an infringement of the
original copyright to make a copy or a derivative work without the
original copyright owner's permission.
112
Yet this illegal market exists and indeed flourishes in Japan, and in
the view of many, it is precisely because it exists that Japanese manga
flourish. As American graphic novelist Judd Winick said to me, "The
early days of comics in America are very much like what's going on in
Japan now. ... American comics were born out of copying each other. ...
That's how [the artists] learn to draw - by going into comic books and
not tracing them, but looking at them and copying them" and building
from them.23
23. For an excellent history, see Scott McCloud, Reinventing
Comics (New York: Perennial, 2000).
113
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi
are allowed. Speaking of Superman, Winick told me, "there are these
rules and you have to stick to them." There are things Superman
"cannot" do. "As a creator, it's frustrating having to stick to some
parameters which are fifty years old."
114
The norm in Japan mitigates this legal difficulty. Some say it is
precisely the benefit accruing to the Japanese manga market that
explains the mitigation. Temple University law professor Salil Mehra,
for example, hypothesizes that the manga market accepts these technical
violations because they spur the manga market to be more wealthy and
productive. Everyone would be worse off if doujinshi were banned, so
the law does not ban doujinshi.24
24. See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
Review 55 (2002): 155, 182. "[T]here might be a collective economic
rationality that would lead manga and anime artists to forgo bringing
legal actions for infringement. One hypothesis is that all manga
artists may be better off collectively if they set aside their
individual self-interest and decide not to press their legal rights.
This is essentially a prisoner's dilemma solved."
115
The problem with this story, however, as Mehra plainly acknowledges, is
that the mechanism producing this laissez faire response is not clear.
It may well be that the market as a whole is better off if doujinshi
are permitted rather than banned, but that doesn't explain why
individual copyright owners don't sue nonetheless. If the law has no
general exception for doujinshi, and indeed in some cases individual
manga artists have sued doujinshi artists, why is there not a more
general pattern of blocking this "free taking" by the doujinshi
culture?
116
I spent four wonderful months in Japan, and I asked this question as
often as I could. Perhaps the best account in the end was offered by a
friend from a major Japanese law firm. "We don't have enough lawyers,"
he told me one afternoon. There "just aren't enough resources to
prosecute cases like this."
117
This is a theme to which we will return: that regulation by law is a
function of both the words on the books and the costs of making those
words have effect. For now, focus on the obvious question that is
begged: Would Japan be better off with more lawyers? Would manga be
richer if doujinshi artists were regularly prosecuted? Would the
Japanese gain something important if they could end this practice of
uncompensated sharing? Does piracy here hurt the victims of the piracy,
or does it help them? Would lawyers fighting this piracy help their
clients or hurt them?
118
Let's pause for a moment.
119
If you're like I was a decade ago, or like most people are when they
first start thinking about these issues, then just about now you should
be puzzled about something you hadn't thought through before.
120
We live in a world that celebrates "property." I am one of those
celebrants. I believe in the value of property in general, and I also
believe in the value of that weird form of property that lawyers call
"intellectual property."25 A large, diverse society cannot
survive without property; a large, diverse, and modern society cannot
flourish without intellectual property.
25. The term intellectual property is of relatively recent
origin. See Siva Vaidhyanathan, Copyrights and Copywrongs, 11
(New York: New York University Press, 2001). See also Lawrence Lessig,
The Future of Ideas (New York: Random House, 2001), 293 n. 26.
The term accurately describes a set of "property" rights - copyright,
patents, trademark, and trade-secret - but the nature of those rights
is very different.
121
But it takes just a second's reflection to realize that there is plenty
of value out there that "property" doesn't capture. I don't mean "money
can't buy you love," but rather, value that is plainly part of a
process of production, including commercial as well as noncommercial
production. If Disney animators had stolen a set of pencils to draw
Steamboat Willie, we'd have no hesitation in condemning that taking as
wrong - even though trivial, even if unnoticed. Yet there was nothing
wrong, at least under the law of the day, with Disney's taking from
Buster Keaton or from the Brothers Grimm. There was nothing wrong with
the taking from Keaton because Disney's use would have been considered
"fair." There was nothing wrong with the taking from the Grimms because
the Grimms' work was in the public domain.
122
Thus, even though the things that Disney took - or more generally, the
things taken by anyone exercising Walt Disney creativity - are
valuable, our tradition does not treat those takings as wrong. Some
things remain free for the taking within a free culture, and that
freedom is good.
123
The same with the doujinshi culture. If a doujinshi artist broke into a
publisher's office and ran off with a thousand copies of his latest
work - or even one copy - without paying, we'd have no hesitation in
saying the artist was wrong. In addition to having trespassed, he would
have stolen something of value. The law bans that stealing in whatever
form, whether large or small.
124
Yet there is an obvious reluctance, even among Japanese lawyers, to say
that the copycat comic artists are "stealing." This form of Walt Disney
creativity is seen as fair and right, even if lawyers in particular
find it hard to say why.
125
It's the same with a thousand examples that appear everywhere once you
begin to look. Scientists build upon the work of other scientists
without asking or paying for the privilege. ("Excuse me, Professor
Einstein, but may I have permission to use your theory of relativity to
show that you were wrong about quantum physics?") Acting companies
perform adaptations of the works of Shakespeare without securing
permission from anyone. (Does anyone believe Shakespeare would
be better spread within our culture if there were a central Shakespeare
rights clearinghouse that all productions of Shakespeare must appeal to
first?) And Hollywood goes through cycles with a certain kind of movie:
five asteroid films in the late 1990s; two volcano disaster films in
1997.
126
Creators here and everywhere are always and at all times building upon
the creativity that went before and that surrounds them now. That
building is always and everywhere at least partially done without
permission and without compensating the original creator. No society,
free or controlled, has ever demanded that every use be paid for or
that permission for Walt Disney creativity must always be sought.
Instead, every society has left a certain bit of its culture free for
the taking - free societies more fully than unfree, perhaps, but all
societies to some degree.
127
The hard question is therefore not whether a culture is free.
All cultures are free to some degree. The hard question instead is
"How free is this culture?" How much, and how broadly, is the
culture free for others to take and build upon? Is that freedom limited
to party members? To members of the royal family? To the top ten
corporations on the New York Stock Exchange? Or is that freedom spread
broadly? To artists generally, whether affiliated with the Met or not?
To musicians generally, whether white or not? To filmmakers generally,
whether affiliated with a studio or not?
128
Free cultures are cultures that leave a great deal open for others to
build upon; unfree, or permission, cultures leave much less. Ours was a
free culture. It is becoming much less so.
129
130
In 1839, Louis Daguerre invented the first practical technology
for producing what we would call "photographs." Appropriately enough,
they were called "daguerreotypes." The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
Association that helped regulate the industry, as do all such
associations, by keeping competition down so as to keep prices up.)
131
Yet despite high prices, the demand for daguerreotypes was strong. This
pushed inventors to find simpler and cheaper ways to make "automatic
pictures." William Talbot soon discovered a process for making
"negatives." But because the negatives were glass, and had to be kept
wet, the process still remained expensive and cumbersome. In the 1870s,
dry plates were developed, making it easier to separate the taking of a
picture from its developing. These were still plates of glass, and thus
it was still not a process within reach of most amateurs.
132
The technological change that made mass photography possible didn't
happen until 1888, and was the creation of a single man. George
Eastman, himself an amateur photographer, was frustrated by the
technology of photographs made with plates. In a flash of insight (so
to speak), Eastman saw that if the film could be made to be flexible,
it could be held on a single spindle. That roll could then be sent to a
developer, driving the costs of photography down substantially. By
lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
133
Eastman developed flexible, emulsion-coated paper film and placed rolls
of it in small, simple cameras: the Kodak. The device was marketed on
the basis of its simplicity. "You press the button and we do the
rest."26 As he described in The Kodak Primer :
26. Reese V. Jenkins, Images and Enterprise (Baltimore: Johns
Hopkins University Press, 1975), 112.
134
The principle of the Kodak system is the separation of the work that
any person whomsoever can do in making a photograph, from the work that
only an expert can do. ... We furnish anybody, man, woman or child, who
has sufficient intelligence to point a box straight and press a button,
with an instrument which altogether removes from the practice of
photography the necessity for exceptional facilities or, in fact, any
special knowledge of the art. It can be employed without preliminary
study, without a darkroom and without chemicals."27
27. Brian Coe, The Birth of Photography (New York: Taplinger
Publishing, 1977), 53.
135
For $25, anyone could make pictures. The camera came preloaded with
film, and when it had been used, the camera was returned to an Eastman
factory, where the film was developed. Over time, of course, the cost
of the camera and the ease with which it could be used both improved.
Roll film thus became the basis for the explosive growth of popular
photography. Eastman's camera first went on sale in 1888; one year
later, Kodak was printing more than six thousand negatives a day. From
1888 through 1909, while industrial production was rising by 4.7
percent, photographic equipment and material sales increased by 11
percent.28 Eastman Kodak's sales during the same period
experienced an average annual increase of over 17 percent.29
28. Jenkins, 177.
29. Based on a chart in Jenkins, p. 178.
136
The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had never
been able to do before. As author Brian Coe notes, "For the first time
the snapshot album provided the man on the street with a permanent
record of his family and its activities. ... For the first time in
history there exists an authentic visual record of the appearance and
activities of the common man made without [literary] interpretation or
bias."30
30. Coe, 58.
137
In this way, the Kodak camera and film were technologies of expression.
The pencil or paintbrush was also a technology of expression, of
course. But it took years of training before they could be deployed by
amateurs in any useful or effective way. With the Kodak, expression was
possible much sooner and more simply. The barrier to expression was
lowered. Snobs would sneer at its "quality"; professionals would
discount it as irrelevant. But watch a child study how best to frame a
picture and you get a sense of the experience of creativity that the
Kodak enabled. Democratic tools gave ordinary people a way to express
themselves more easily than any tools could have before.
138
What was required for this technology to flourish? Obviously, Eastman's
genius was an important part. But also important was the legal
environment within which Eastman's invention grew. For early in the
history of photography, there was a series of judicial decisions that
could well have changed the course of photography substantially. Courts
were asked whether the photographer, amateur or professional, required
permission before he could capture and print whatever image he wanted.
Their answer was no.31
31. For illustrative cases, see, for example, Pavesich v. N.E. Life
Ins. Co., 50 S.E. 68 (Ga. 1905); Foster-Milburn Co. v.
Chinn, 123090 S.W. 364, 366 (Ky. 1909); Corliss v. Walker,
64 F. 280 (Mass. Dist. Ct. 1894).
139
The arguments in favor of requiring permission will sound surprisingly
familiar. The photographer was "taking" something from the person or
building whose photograph he shot - pirating something of value. Some
even thought he was taking the target's soul. Just as Disney was not
free to take the pencils that his animators used to draw Mickey, so,
too, should these photographers not be free to take images that they
thought valuable.
140
On the other side was an argument that should be familiar, as well.
Sure, there may be something of value being used. But citizens should
have the right to capture at least those images that stand in public
view. (Louis Brandeis, who would become a Supreme Court Justice,
thought the rule should be different for images from private
spaces.32 ) It may be that this means that the photographer
gets something for nothing. Just as Disney could take inspiration from
Steamboat Bill, Jr. or the Brothers Grimm, the photographer
should be free to capture an image without compensating the source.
32. Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
Harvard Law Review 4 (1890): 193.
141
Fortunately for Mr. Eastman, and for photography in general, these
early decisions went in favor of the pirates. In general, no permission
would be required before an image could be captured and shared with
others. Instead, permission was presumed. Freedom was the default. (The
law would eventually craft an exception for famous people: commercial
photographers who snap pictures of famous people for commercial
purposes have more restrictions than the rest of us. But in the
ordinary case, the image can be captured without clearing the rights to
do the capturing.33 )
33. See Melville B. Nimmer, "The Right of Publicity," Law and
Contemporary Problems 19 (1954): 203; William L. Prosser,
"Privacy," California Law Review 48 (1960) 398-407; White v.
Samsung Electronics America, Inc., 971 F. 2d 1395 (9th Cir. 1992),
cert. denied, 508 U.S. 951 (1993).
142
We can only speculate about how photography would have developed had
the law gone the other way. If the presumption had been against the
photographer, then the photographer would have had to demonstrate
permission. Perhaps Eastman Kodak would have had to demonstrate
permission, too, before it developed the film upon which images were
captured. After all, if permission were not granted, then Eastman Kodak
would be benefiting from the "theft" committed by the photographer.
Just as Napster benefited from the copyright infringements committed by
Napster users, Kodak would be benefiting from the "image-right"
infringement of its photographers. We could imagine the law then
requiring that some form of permission be demonstrated before a company
developed pictures. We could imagine a system developing to demonstrate
that permission.
143
But though we could imagine this system of permission, it would be very
hard to see how photography could have flourished as it did if the
requirement for permission had been built into the rules that govern
it. Photography would have existed. It would have grown in importance
over time. Professionals would have continued to use the technology as
they did - since professionals could have more easily borne the burdens
of the permission system. But the spread of photography to ordinary
people would not have occurred. Nothing like that growth would have
been realized. And certainly, nothing like that growth in a democratic
technology of expression would have been realized.
144
If you drive through San Francisco's Presidio, you might see two
gaudy yellow school buses painted over with colorful and striking
images, and the logo "Just Think!" in place of the name of a school.
But there's little that's "just" cerebral in the projects that these
busses enable. These buses are filled with technologies that teach kids
to tinker with film. Not the film of Eastman. Not even the film of your
VCR. Rather the "film" of digital cameras. Just Think! is a project
that enables kids to make films, as a way to understand and critique
the filmed culture that they find all around them. Each year, these
busses travel to more than thirty schools and enable three hundred to
five hundred children to learn something about media by doing something
with media. By doing, they think. By tinkering, they learn.
145
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
fallen dramatically. As one analyst puts it, "Five years ago, a good
real-time digital video editing system cost $25,000. Today you can get
professional quality for $595."34 These buses are filled with
technology that would have cost hundreds of thousands just ten years
ago. And it is now feasible to imagine not just buses like this, but
classrooms across the country where kids are learning more and more of
something teachers call "media literacy."
34. H. Edward Goldberg, "Essential Presentation Tools: Hardware and
Software You Need to Create Digital Multimedia Presentations,"
cadalyst, 1 February 2002, available at link #7.
146
"Media literacy," as Dave Yanofsky, the executive director of Just
Think!, puts it, "is the ability ... to understand, analyze, and
deconstruct media images. Its aim is to make [kids] literate about the
way media works, the way it's constructed, the way it's delivered, and
the way people access it."
147
This may seem like an odd way to think about "literacy." For most
people, literacy is about reading and writing. Faulkner and Hemingway
and noticing split infinitives are the things that "literate" people
know about.
148
Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
commercials generally,35 it is increasingly important to
understand the "grammar" of media. For just as there is a grammar for
the written word, so, too, is there one for media. And just as kids
learn how to write by writing lots of terrible prose, kids learn how to
write media by constructing lots of (at least at first) terrible media.
35. Judith Van Evra, Television and Child Development (Hillsdale,
N.J.: Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
Study," Denver Post, 25 May 1997, B6.
149
A growing field of academics and activists sees this form of literacy
as crucial to the next generation of culture. For though anyone who has
written understands how difficult writing is - how difficult it is to
sequence the story, to keep a reader's attention, to craft language to
be understandable - few of us have any real sense of how difficult
media is. Or more fundamentally, few of us have a sense of how media
works, how it holds an audience or leads it through a story, how it
triggers emotion or builds suspense.
150
It took filmmaking a generation before it could do these things well.
But even then, the knowledge was in the filming, not in writing about
the film. The skill came from experiencing the making of a film, not
from reading a book about it. One learns to write by writing and then
reflecting upon what one has written. One learns to write with images
by making them and then reflecting upon what one has created.
151
This grammar has changed as media has changed. When it was just film,
as Elizabeth Daley, executive director of the University of Southern
California's Annenberg Center for Communication and dean of the USC
School of Cinema- Television, explained to me, the grammar was about
"the placement of objects, color, ... rhythm, pacing, and
texture."36 But as computers open up an interactive space
where a story is "played" as well as experienced, that grammar changes.
The simple control of narrative is lost, and so other techniques are
necessary. Author Michael Crichton had mastered the narrative of
science fiction. But when he tried to design a computer game based on
one of his works, it was a new craft he had to learn. How to lead
people through a game without their feeling they have been led was not
obvious, even to a wildly successful author.37
36. Interview with Elizabeth Daley and Stephanie Barish, 13 December
2002.
37. See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
November 2000, available at link #8; "Timeline," 22 November 2000,
available at link #9.
152
This skill is precisely the craft a filmmaker learns. As Daley
describes, "people are very surprised about how they are led through a
film. [I]t is perfectly constructed to keep you from seeing it, so you
have no idea. If a filmmaker succeeds you do not know how you were
led." If you know you were led through a film, the film has failed.
153
Yet the push for an expanded literacy - one that goes beyond text to
include audio and visual elements - is not about making better film
directors. The aim is not to improve the profession of filmmaking at
all. Instead, as Daley explained,
154
From my perspective, probably the most important digital divide is not
access to a box. It's the ability to be empowered with the language
that that box works in. Otherwise only a very few people can write with
this language, and all the rest of us are reduced to being read-only."
155
"Read-only." Passive recipients of culture produced elsewhere. Couch
potatoes. Consumers. This is the world of media from the twentieth
century.
156
The twenty-first century could be different. This is the crucial point:
It could be both read and write. Or at least reading and better
understanding the craft of writing. Or best, reading and understanding
the tools that enable the writing to lead or mislead. The aim of any
literacy, and this literacy in particular, is to "empower people to
choose the appropriate language for what they need to create or
express."38 It is to enable students "to communicate in the
language of the twenty-first century."39
38. Interview with Daley and Barish.
39. Ibid.
157
As with any language, this language comes more easily to some than to
others. It doesn't necessarily come more easily to those who excel in
written language. Daley and Stephanie Barish, director of the Institute
for Multimedia Literacy at the Annenberg Center, describe one
particularly poignant example of a project they ran in a high school.
The high school was a very poor inner-city Los Angeles school. In all
the traditional measures of success, this school was a failure. But
Daley and Barish ran a program that gave kids an opportunity to use
film to express meaning about something the students know something
about - gun violence.
158
The class was held on Friday afternoons, and it created a relatively
new problem for the school. While the challenge in most classes was
getting the kids to come, the challenge in this class was keeping them
away. The "kids were showing up at 6 A.M. and leaving at 5 at night,"
said Barish. They were working harder than in any other class to do
what education should be about - learning how to express themselves.
159
Using whatever "free web stuff they could find," and relatively simple
tools to enable the kids to mix "image, sound, and text," Barish said
this class produced a series of projects that showed something about
gun violence that few would otherwise understand. This was an issue
close to the lives of these students. The project "gave them a tool and
empowered them to be able to both understand it and talk about it,"
Barish explained. That tool succeeded in creating expression - far more
successfully and powerfully than could have been created using only
text. "If you had said to these students, 'you have to do it in text,'
they would've just thrown their hands up and gone and done something
else," Barish described, in part, no doubt, because expressing
themselves in text is not something these students can do well. Yet
neither is text a form in which these ideas can be expressed
well. The power of this message depended upon its connection to this
form of expression.
160
"But isn't education about teaching kids to write?" I asked. In part,
of course, it is. But why are we teaching kids to write? Education,
Daley explained, is about giving students a way of "constructing
meaning." To say that that means just writing is like saying teaching
writing is only about teaching kids how to spell. Text is one part -
and increasingly, not the most powerful part - of constructing meaning.
As Daley explained in the most moving part of our interview,
161
What you want is to give these students ways of constructing meaning.
If all you give them is text, they're not going to do it. Because they
can't. You know, you've got Johnny who can look at a video, he can play
a video game, he can do graffiti all over your walls, he can take your
car apart, and he can do all sorts of other things. He just can't read
your text. So Johnny comes to school and you say, "Johnny, you're
illiterate. Nothing you can do matters." Well, Johnny then has two
choices: He can dismiss you or he [can] dismiss himself. If his ego is
healthy at all, he's going to dismiss you. [But i]nstead, if you say,
"Well, with all these things that you can do, let's talk about this
issue. Play for me music that you think reflects that, or show me
images that you think reflect that, or draw for me something that
reflects that." Not by giving a kid a video camera and ... saying,
"Let's go have fun with the video camera and make a little movie." But
instead, really help you take these elements that you understand, that
are your language, and construct meaning about the topic. ...
162
That empowers enormously. And then what happens, of course, is
eventually, as it has happened in all these classes, they bump up
against the fact, "I need to explain this and I really need to write
something." And as one of the teachers told Stephanie, they would
rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
163
Because they needed to. There was a reason for doing it. They needed to
say something, as opposed to just jumping through your hoops. They
actually needed to use a language that they didn't speak very well. But
they had come to understand that they had a lot of power with this
language."
164
When two planes crashed into the World Trade Center, another
into the Pentagon, and a fourth into a Pennsylvania field, all media
around the world shifted to this news. Every moment of just about every
day for that week, and for weeks after, television in particular, and
media generally, retold the story of the events we had just witnessed.
The telling was a retelling, because we had seen the events that were
described. The genius of this awful act of terrorism was that the
delayed second attack was perfectly timed to assure that the whole
world would be watching.
165
These retellings had an increasingly familiar feel. There was music
scored for the intermissions, and fancy graphics that flashed across
the screen. There was a formula to interviews. There was "balance," and
seriousness. This was news choreographed in the way we have
increasingly come to expect it, "news as entertainment," even if the
entertainment is tragedy.
166
But in addition to this produced news about the "tragedy of September
11," those of us tied to the Internet came to see a very different
production as well. The Internet was filled with accounts of the same
events. Yet these Internet accounts had a very different flavor. Some
people constructed photo pages that captured images from around the
world and presented them as slide shows with text. Some offered open
letters. There were sound recordings. There was anger and frustration.
There were attempts to provide context. There was, in short, an
extraordinary worldwide barn raising, in the sense Mike Godwin uses the
term in his book Cyber Rights , around a news event that had
captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
167
I don't mean simply to praise the Internet - though I do think the
people who supported this form of speech should be praised. I mean
instead to point to a significance in this form of speech. For like a
Kodak, the Internet enables people to capture images. And like in a
movie by a student on the "Just Think!" bus, the visual images could be
mixed with sound or text.
168
But unlike any technology for simply capturing images, the Internet
allows these creations to be shared with an extraordinary number of
people, practically instantaneously. This is something new in our
tradition - not just that culture can be captured mechanically, and
obviously not just that events are commented upon critically, but that
this mix of captured images, sound, and commentary can be widely spread
practically instantaneously.
169
September 11 was not an aberration. It was a beginning. Around the same
time, a form of communication that has grown dramatically was just
beginning to come into public consciousness: the Web-log, or blog. The
blog is a kind of public diary, and within some cultures, such as in
Japan, it functions very much like a diary. In those cultures, it
records private facts in a public way - it's a kind of electronic
Jerry Springer , available anywhere in the world.
170
But in the United States, blogs have taken on a very different
character. There are some who use the space simply to talk about their
private life. But there are many who use the space to engage in public
discourse. Discussing matters of public import, criticizing others who
are mistaken in their views, criticizing politicians about the
decisions they make, offering solutions to problems we all see: blogs
create the sense of a virtual public meeting, but one in which we don't
all hope to be there at the same time and in which conversations are
not necessarily linked. The best of the blog entries are relatively
short; they point directly to words used by others, criticizing with or
adding to them. They are arguably the most important form of
unchoreographed public discourse that we have.
171
That's a strong statement. Yet it says as much about our democracy as
it does about blogs. This is the part of America that is most difficult
for those of us who love America to accept: Our democracy has
atrophied. Of course we have elections, and most of the time the courts
allow those elections to count. A relatively small number of people
vote in those elections. The cycle of these elections has become
totally professionalized and routinized. Most of us think this is
democracy.
172
But democracy has never just been about elections. Democracy means rule
by the people, but rule means something more than mere elections. In
our tradition, it also means control through reasoned discourse. This
was the idea that captured the imagination of Alexis de Tocqueville,
the nineteenth-century French lawyer who wrote the most important
account of early "Democracy in America." It wasn't popular elections
that fascinated him - it was the jury, an institution that gave
ordinary people the right to choose life or death for other citizens.
And most fascinating for him was that the jury didn't just vote about
the outcome they would impose. They deliberated. Members argued about
the "right" result; they tried to persuade each other of the "right"
result, and in criminal cases at least, they had to agree upon a
unanimous result for the process to come to an end.40
40. See, for example, Alexis de Tocqueville, Democracy in
America, bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000),
ch. 16.
173
Yet even this institution flags in American life today. And in its
place, there is no systematic effort to enable citizen deliberation.
Some are pushing to create just such an institution.41 And in
some towns in New England, something close to deliberation remains. But
for most of us for most of the time, there is no time or place for
"democratic deliberation" to occur.
41. Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
Political Philosophy 10 (2) (2002): 129.
174
More bizarrely, there is generally not even permission for it to occur.
We, the most powerful democracy in the world, have developed a strong
norm against talking about politics. It's fine to talk about politics
with people you agree with. But it is rude to argue about politics with
people you disagree with. Political discourse becomes isolated, and
isolated discourse becomes more extreme.42 We say what our
friends want to hear, and hear very little beyond what our friends say.
42. Cass Sunstein, Republic.com (Princeton: Princeton University
Press, 2001), 65-80, 175, 182, 183, 192.
175
Enter the blog. The blog's very architecture solves one part of this
problem. People post when they want to post, and people read when they
want to read. The most difficult time is synchronous time. Technologies
that enable asynchronous communication, such as e-mail, increase the
opportunity for communication. Blogs allow for public discourse without
the public ever needing to gather in a single public place.
176
But beyond architecture, blogs also have solved the problem of norms.
There's no norm (yet) in blog space not to talk about politics. Indeed,
the space is filled with political speech, on both the right and the
left. Some of the most popular sites are conservative or libertarian,
but there are many of all political stripes. And even blogs that are
not political cover political issues when the occasion merits.
177
The significance of these blogs is tiny now, though not so tiny. The
name Howard Dean may well have faded from the 2004 presidential race
but for blogs. Yet even if the number of readers is small, the reading
is having an effect.
178
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
"misspoke" at a party for Senator Strom Thurmond, essentially praising
Thurmond's segregationist policies, he calculated correctly that this
story would disappear from the mainstream press within forty-eight
hours. It did. But he didn't calculate its life cycle in blog space.
The bloggers kept researching the story. Over time, more and more
instances of the same "misspeaking" emerged. Finally, the story broke
back into the mainstream press. In the end, Lott was forced to resign
as senate majority leader.43
43. Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot,"
New York Times, 16 January 2003, G5.
179
This different cycle is possible because the same commercial pressures
don't exist with blogs as with other ventures. Television and
newspapers are commercial entities. They must work to keep attention.
If they lose readers, they lose revenue. Like sharks, they must move
on.
180
But bloggers don't have a similar constraint. They can obsess, they can
focus, they can get serious. If a particular blogger writes a
particularly interesting story, more and more people link to that
story. And as the number of links to a particular story increases, it
rises in the ranks of stories. People read what is popular; what is
popular has been selected by a very democratic process of
peer-generated rankings.
181
There's a second way, as well, in which blogs have a different cycle
from the mainstream press. As Dave Winer, one of the fathers of this
movement and a software author for many decades, told me, another
difference is the absence of a financial "conflict of interest." "I
think you have to take the conflict of interest" out of journalism,
Winer told me. "An amateur journalist simply doesn't have a conflict of
interest, or the conflict of interest is so easily disclosed that you
know you can sort of get it out of the way."
182
These conflicts become more important as media becomes more
concentrated (more on this below). A concentrated media can hide more
from the public than an unconcentrated media can - as CNN admitted it
did after the Iraq war because it was afraid of the consequences to its
own employees.44 It also needs to sustain a more coherent
account. (In the middle of the Iraq war, I read a post on the Internet
from someone who was at that time listening to a satellite uplink with
a reporter in Iraq. The New York headquarters was telling the reporter
over and over that her account of the war was too bleak: She needed to
offer a more optimistic story. When she told New York that wasn't
warranted, they told her that they were writing "the story.")
44. Telephone interview with David Winer, 16 April 2003.
183
Blog space gives amateurs a way to enter the debate - "amateur" not in
the sense of inexperienced, but in the sense of an Olympic athlete,
meaning not paid by anyone to give their reports. It allows for a much
broader range of input into a story, as reporting on the Columbia
disaster revealed, when hundreds from across the southwest United
States turned to the Internet to retell what they had seen.45
And it drives readers to read across the range of accounts and
"triangulate," as Winer puts it, the truth. Blogs, Winer says, are
"communicating directly with our constituency, and the middle man is
out of it" - with all the benefits, and costs, that might entail.
45. John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
Information Online," New York Times, 2 February 2003, A28; Staci
D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
Online Journalism Review, 2 February 2003, available at link #10.
184
Winer is optimistic about the future of journalism infected with blogs.
"It's going to become an essential skill," Winer predicts, for public
figures and increasingly for private figures as well. It's not clear
that "journalism" is happy about this - some journalists have been told
to curtail their blogging.46 But it is clear that we are still
in transition. "A lot of what we are doing now is warm-up exercises,"
Winer told me. There is a lot that must mature before this space has
its mature effect. And as the inclusion of content in this space is the
least infringing use of the Internet (meaning infringing on copyright),
Winer said, "we will be the last thing that gets shut down."
46. See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?"
New York Times, 29 September 2003, C4. ("Not all news
organizations have been as accepting of employees who blog. Kevin
Sites, a CNN correspondent in Iraq who started a blog about his
reporting of the war on March 9, stopped posting 12 days later at his
bosses' request. Last year Steve Olafson, a Houston Chronicle
reporter, was fired for keeping a personal Web log, published under a
pseudonym, that dealt with some of the issues and people he was
covering.")
185
This speech affects democracy. Winer thinks that happens because "you
don't have to work for somebody who controls, [for] a gate-keeper."
That is true. But it affects democracy in another way as well. As more
and more citizens express what they think, and defend it in writing,
that will change the way people understand public issues. It is easy to
be wrong and misguided in your head. It is harder when the product of
your mind can be criticized by others. Of course, it is a rare human
who admits that he has been persuaded that he is wrong. But it is even
rarer for a human to ignore when he has been proven wrong. The writing
of ideas, arguments, and criticism improves democracy. Today there are
probably a couple of million blogs where such writing happens. When
there are ten million, there will be something extraordinary to report.
186
John Seely Brown is the chief scientist of the Xerox
Corporation. His work, as his Web site describes it, is "human learning
and ... the creation of knowledge ecologies for creating ...
innovation."
187
Brown thus looks at these technologies of digital creativity a bit
differently from the perspectives I've sketched so far. I'm sure he
would be excited about any technology that might improve democracy. But
his real excitement comes from how these technologies affect learning.
188
As Brown believes, we learn by tinkering. When "a lot of us grew up,"
he explains, that tinkering was done "on motorcycle engines, lawn-mower
engines, automobiles, radios, and so on." But digital technologies
enable a different kind of tinkering - with abstract ideas though in
concrete form. The kids at Just Think! not only think about how a
commercial portrays a politician; using digital technology, they can
take the commercial apart and manipulate it, tinker with it to see how
it does what it does. Digital technologies launch a kind of bricolage,
or "free collage," as Brown calls it. Many get to add to or transform
the tinkering of many others.
189
The best large-scale example of this kind of tinkering so far is free
software or open-source software (FS/{OSS). FS}/OSS is software whose
source code is shared. Anyone can download the technology that makes a
FS/OSS program run. And anyone eager to learn how a particular bit of
FS/OSS technology works can tinker with the code.
190
This opportunity creates a "completely new kind of learning platform,"
as Brown describes. "As soon as you start doing that, you ... unleash a
free collage on the community, so that other people can start looking
at your code, tinkering with it, trying it out, seeing if they can
improve it." Each effort is a kind of apprenticeship. "Open source
becomes a major apprenticeship platform."
191
In this process, "the concrete things you tinker with are abstract.
They are code." Kids are "shifting to the ability to tinker in the
abstract, and this tinkering is no longer an isolated activity that
you're doing in your garage. You are tinkering with a community
platform. ... You are tinkering with other people's stuff. The more you
tinker the more you improve." The more you improve, the more you learn.
192
This same thing happens with content, too. And it happens in the same
collaborative way when that content is part of the Web. As Brown puts
it, "the Web [is] the first medium that truly honors multiple forms of
intelligence." Earlier technologies, such as the typewriter or word
processors, helped amplify text. But the Web amplifies much more than
text. "The Web ... says if you are musical, if you are artistic, if you
are visual, if you are interested in film ... [then] there is a lot you
can start to do on this medium. [It] can now amplify and honor these
multiple forms of intelligence."
193
Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just
Think! teach: that this tinkering with culture teaches as well as
creates. It develops talents differently, and it builds a different
kind of recognition.
194
Yet the freedom to tinker with these objects is not guaranteed. Indeed,
as we'll see through the course of this book, that freedom is
increasingly highly contested. While there's no doubt that your father
had the right to tinker with the car engine, there's great doubt that
your child will have the right to tinker with the images she finds all
around. The law and, increasingly, technology interfere with a freedom
that technology, and curiosity, would otherwise ensure.
195
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter 10)
has developed a powerful argument in favor of the "right to tinker" as
it applies to computer science and to knowledge in general.47
But Brown's concern is earlier, or younger, or more fundamental. It is
about the learning that kids can do, or can't do, because of the law.
47. See, for example, Edward Felten and Andrew Appel, "Technological
Access Control Interferes with Noninfringing Scholarship,"
Communications of the Association for Computer Machinery 43
(2000): 9.
196
"This is where education in the twenty-first century is going," Brown
explains. We need to "understand how kids who grow up digital think and
want to learn."
197
"Yet," as Brown continued, and as the balance of this book will evince,
"we are building a legal system that completely suppresses the natural
tendencies of today's digital kids. ... We're building an architecture
that unleashes 60 percent of the brain [and] a legal system that closes
down that part of the brain."
198
We're building a technology that takes the magic of Kodak, mixes moving
images and sound, and adds a space for commentary and an opportunity to
spread that creativity everywhere. But we're building the law to close
down that technology.
199
"No way to run a culture," as Brewster Kahle, whom we'll meet in
chapter 9, quipped to me in a rare moment of despondence.
200
201
In the fall of 2002, Jesse Jordan of Oceanside, New York,
enrolled as a freshman at Rensselaer Polytechnic Institute, in Troy,
New York. His major at RPI was information technology. Though he is not
a programmer, in October Jesse decided to begin to tinker with search
engine technology that was available on the RPI network.
202
RPI is one of America's foremost technological research institutions.
It offers degrees in fields ranging from architecture and engineering
to information sciences. More than 65 percent of its five thousand
undergraduates finished in the top 10 percent of their high school
class. The school is thus a perfect mix of talent and experience to
imagine and then build, a generation for the network age.
203
RPI's computer network links students, faculty, and administration to
one another. It also links RPI to the Internet. Not everything
available on the RPI network is available on the Internet. But the
network is designed to enable students to get access to the Internet,
as well as more intimate access to other members of the RPI community.
204
Search engines are a measure of a network's intimacy. Google brought
the Internet much closer to all of us by fantastically improving the
quality of search on the network. Specialty search engines can do this
even better. The idea of "intranet" search engines, search engines that
search within the network of a particular institution, is to provide
users of that institution with better access to material from that
institution. Businesses do this all the time, enabling employees to
have access to material that people outside the business can't get.
Universities do it as well.
205
These engines are enabled by the network technology itself. Microsoft,
for example, has a network file system that makes it very easy for
search engines tuned to that network to query the system for
information about the publicly (within that network) available content.
Jesse's search engine was built to take advantage of this technology.
It used Microsoft's network file system to build an index of all the
files available within the RPI network.
206
Jesse's wasn't the first search engine built for the RPI network.
Indeed, his engine was a simple modification of engines that others had
built. His single most important improvement over those engines was to
fix a bug within the Microsoft file-sharing system that could cause a
user's computer to crash. With the engines that existed before, if you
tried to access a file through a Windows browser that was on a computer
that was off-line, your computer could crash. Jesse modified the system
a bit to fix that problem, by adding a button that a user could click
to see if the machine holding the file was still on-line.
207
Jesse's engine went on-line in late October. Over the following six
months, he continued to tweak it to improve its functionality. By
March, the system was functioning quite well. Jesse had more than one
million files in his directory, including every type of content that
might be on users' computers.
208
Thus the index his search engine produced included pictures, which
students could use to put on their own Web sites; copies of notes or
research; copies of information pamphlets; movie clips that students
might have created; university brochures - basically anything that
users of the RPI network made available in a public folder of their
computer.
209
But the index also included music files. In fact, one quarter of the
files that Jesse's search engine listed were music files. But that
means, of course, that three quarters were not, and - so that this
point is absolutely clear - Jesse did nothing to induce people to put
music files in their public folders. He did nothing to target the
search engine to these files. He was a kid tinkering with a Google-like
technology at a university where he was studying information science,
and hence, tinkering was the aim. Unlike Google, or Microsoft, for that
matter, he made no money from this tinkering; he was not connected to
any business that would make any money from this experiment. He was a
kid tinkering with technology in an environment where tinkering with
technology was precisely what he was supposed to do.
210
On April 3, 2003, Jesse was contacted by the dean of students at RPI.
The dean informed Jesse that the Recording Industry Association of
America, the RIAA, would be filing a lawsuit against him and three
other students whom he didn't even know, two of them at other
universities. A few hours later, Jesse was served with papers from the
suit. As he read these papers and watched the news reports about them,
he was increasingly astonished.
211
"It was absurd," he told me. "I don't think I did anything wrong. ... I
don't think there's anything wrong with the search engine that I ran or
... what I had done to it. I mean, I hadn't modified it in any way that
promoted or enhanced the work of pirates. I just modified the search
engine in a way that would make it easier to use" - again, a search
engine , which Jesse had not himself built, using the Windows
file-sharing system, which Jesse had not himself built, to enable
members of the RPI community to get access to content, which Jesse had
not himself created or posted, and the vast majority of which had
nothing to do with music.
212
But the RIAA branded Jesse a pirate. They claimed he operated a network
and had therefore "willfully" violated copyright laws. They demanded
that he pay them the damages for his wrong. For cases of "willful
infringement," the Copyright Act specifies something lawyers call
"statutory damages." These damages permit a copyright owner to claim
$150,000 per infringement. As the RIAA alleged more than one hundred
specific copyright infringements, they therefore demanded that Jesse
pay them at least $15,000,000.
213
Similar lawsuits were brought against three other students: one other
student at RPI, one at Michigan Technical University, and one at
Princeton. Their situations were similar to Jesse's. Though each case
was different in detail, the bottom line in each was exactly the same:
huge demands for "damages" that the RIAA claimed it was entitled to. If
you added up the claims, these four lawsuits were asking courts in the
United States to award the plaintiffs close to $100 billion -
six times the total profit of the film industry in
2001.48
48. Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
Suit Alleges $97.8 Billion in Damages," Professional Media Group
LCC 6 (2003): 5, available at 2003 WL 55179443.
214
Jesse called his parents. They were supportive but a bit frightened. An
uncle was a lawyer. He began negotiations with the RIAA. They demanded
to know how much money Jesse had. Jesse had saved $12,000 from summer
jobs and other employment. They demanded $12,000 to dismiss the case.
215
The RIAA wanted Jesse to admit to doing something wrong. He refused.
They wanted him to agree to an injunction that would essentially make
it impossible for him to work in many fields of technology for the rest
of his life. He refused. They made him understand that this process of
being sued was not going to be pleasant. (As Jesse's father recounted
to me, the chief lawyer on the case, Matt Oppenheimer, told Jesse, "You
don't want to pay another visit to a dentist like me.") And throughout,
the RIAA insisted it would not settle the case until it took every
penny Jesse had saved.
216
Jesse's family was outraged at these claims. They wanted to fight. But
Jesse's uncle worked to educate the family about the nature of the
American legal system. Jesse could fight the RIAA. He might even win.
But the cost of fighting a lawsuit like this, Jesse was told, would be
at least $250,000. If he won, he would not recover that money. If he
won, he would have a piece of paper saying he had won, and a piece of
paper saying he and his family were bankrupt.
217
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
218
The recording industry insists this is a matter of law and morality.
Let's put the law aside for a moment and think about the morality.
Where is the morality in a lawsuit like this? What is the virtue in
scapegoatism? The RIAA is an extraordinarily powerful lobby. The
president of the RIAA is reported to make more than $1 million a year.
Artists, on the other hand, are not well paid. The average recording
artist makes $45,900.49 There are plenty of ways for the RIAA
to affect and direct policy. So where is the morality in taking money
from a student for running a search engine?50
49. Occupational Employment Survey, U.S. Dept. of Labor (2001) (27-2042
- Musicians and Singers). See also National Endowment for the Arts,
More Than One in a Blue Moon (2000).
50. Douglas Lichtman makes a related point in "KaZaA and Punishment,"
Wall Street Journal, 10 September 2003, A24.
219
On June 23, Jesse wired his savings to the lawyer working for the RIAA.
The case against him was then dismissed. And with this, this kid who
had tinkered a computer into a $15 million lawsuit became an activist:
220
I was definitely not an activist [before]. I never really meant to be
an activist. ... [But] I've been pushed into this. In no way did I ever
foresee anything like this, but I think it's just completely absurd
what the RIAA has done."
221
Jesse's parents betray a certain pride in their reluctant activist. As
his father told me, Jesse "considers himself very conservative, and so
do I. ... He's not a tree hugger. . . . I think it's bizarre that they
would pick on him. But he wants to let people know that they're sending
the wrong message. And he wants to correct the record."
222
223
If "piracy" means using the creative property of others without
their permission - if "if value, then right" is true - then the history
of the content industry is a history of piracy. Every important sector
of "big media" today - film, records, radio, and cable TV - was born of
a kind of piracy so defined. The consistent story is how last
generation's pirates join this generation's country club - until now.
224
Film
225
The film industry of Hollywood was built by fleeing pirates.51
Creators and directors migrated from the East Coast to California in
the early twentieth century in part to escape controls that patents
granted the inventor of filmmaking, Thomas Edison. These controls were
exercised through a monopoly "trust," the Motion Pictures Patents
Company, and were based on Thomas Edison's creative property - patents.
Edison formed the MPPC to exercise the rights this creative property
gave him, and the MPPC was serious about the control it demanded. As
one commentator tells one part of the story,
51. I am grateful to Peter DiMauro for pointing me to this extraordinary
history. See also Siva Vaidhyanathan, Copyrights and Copywrongs,
87-93, which details Edison's "adventures" with copyright and patent.
226
A January 1909 deadline was set for all companies to comply with the
license. By February, unlicensed outlaws, who referred to themselves as
independents protested the trust and carried on business without
submitting to the Edison monopoly. In the summer of 1909 the
independent movement was in full-swing, with producers and theater
owners using illegal equipment and imported film stock to create their
own underground market.
227
With the country experiencing a tremendous expansion in the number of
nickelodeons, the Patents Company reacted to the independent movement
by forming a strong-arm subsidiary known as the General Film Company to
block the entry of non-licensed independents. With coercive tactics
that have become legendary, General Film confiscated unlicensed
equipment, discontinued product supply to theaters which showed
unlicensed films, and effectively monopolized distribution with the
acquisition of all U.S. film exchanges, except for the one owned by the
independent William Fox who defied the Trust even after his license was
revoked."52
52. J. A. Aberdeen, Hollywood Renegades: The Society of Independent
Motion Picture Producers (Cobblestone Entertainment, 2000) and
expanded texts posted at "The Edison Movie Monopoly: The Motion Picture
Patents Company vs. the Independent Outlaws," available at link #11.
For a discussion of the economic motive behind both these limits and
the limits imposed by Victor on phonographs, see Randal C. Picker,
"From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal
and the Propertization of Copyright" (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics, Working
Paper No. 159.
228
The Napsters of those days, the "independents," were companies like
Fox. And no less than today, these independents were vigorously
resisted. "Shooting was disrupted by machinery stolen, and 'accidents'
resulting in loss of negatives, equipment, buildings and sometimes life
and limb frequently occurred."53 That led the independents to
flee the East Coast. California was remote enough from Edison's reach
that film- makers there could pirate his inventions without fear of the
law. And the leaders of Hollywood filmmaking, Fox most prominently, did
just that.
53. Marc Wanamaker, "The First Studios," The Silents Majority,
archived at link #12.
229
Of course, California grew quickly, and the effective enforcement of
federal law eventually spread west. But because patents grant the
patent holder a truly "limited" monopoly (just seventeen years at that
time), by the time enough federal marshals appeared, the patents had
expired. A new industry had been born, in part from the piracy of
Edison's creative property.
230
Recorded Music
231
The record industry was born of another kind of piracy, though to see
how requires a bit of detail about the way the law regulates music.
232
At the time that Edison and Henri Fourneaux invented machines for
reproducing music (Edison the phonograph, Fourneaux the player piano),
the law gave composers the exclusive right to control copies of their
music and the exclusive right to control public performances of their
music. In other words, in 1900, if I wanted a copy of Phil Russel's
1899 hit "Happy Mose," the law said I would have to pay for the right
to get a copy of the musical score, and I would also have to pay for
the right to perform it publicly.
233
But what if I wanted to record "Happy Mose," using Edison's phonograph
or Fourneaux's player piano? Here the law stumbled. It was clear enough
that I would have to buy any copy of the musical score that I performed
in making this recording. And it was clear enough that I would have to
pay for any public performance of the work I was recording. But it
wasn't totally clear that I would have to pay for a "public
performance" if I recorded the song in my own house (even today, you
don't owe the Beatles anything if you sing their songs in the shower),
or if I recorded the song from memory (copies in your brain are not -
yet - regulated by copyright law). So if I simply sang the song into a
recording device in the privacy of my own home, it wasn't clear that I
owed the composer anything. And more importantly, it wasn't clear
whether I owed the composer anything if I then made copies of those
recordings. Because of this gap in the law, then, I could effectively
pirate someone else's song without paying its composer anything.
234
The composers (and publishers) were none too happy about this capacity
to pirate. As South Dakota senator Alfred Kittredge put it,
235
Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same and
copyrights it. Along come the phonographic companies and companies who
cut music rolls and deliberately steal the work of the brain of the
composer and publisher without any regard for [their]
rights.54
54. To Amend and Consolidate the Acts Respecting Copyright: Hearings on
S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th
Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
of South Dakota, chairman), reprinted in Legislative History of the
1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds.
(South Hackensack, N.J.: Rothman Reprints, 1976).
236
The innovators who developed the technology to record other people's
works were "sponging upon the toil, the work, the talent, and genius of
American composers,"55 and the "music publishing industry" was
thereby "at the complete mercy of this one pirate."56 As John
Philip Sousa put it, in as direct a way as possible, "When they make
money out of my pieces, I want a share of it."57
55. To Amend and Consolidate the Acts Respecting Copyright, 223
(statement of Nathan Burkan, attorney for the Music Publishers
Association).
56. To Amend and Consolidate the Acts Respecting Copyright, 226
(statement of Nathan Burkan, attorney for the Music Publishers
Association).
57. To Amend and Consolidate the Acts Respecting Copyright, 23
(statement of John Philip Sousa, composer).
237
These arguments have familiar echoes in the wars of our day. So, too,
do the arguments on the other side. The innovators who developed the
player piano argued that "it is perfectly demonstrable that the
introduction of automatic music players has not deprived any composer
of anything he had before their introduction." Rather, the machines
increased the sales of sheet music.58 In any case, the
innovators argued, the job of Congress was "to consider first the
interest of [the public], whom they represent, and whose servants they
are." "All talk about 'theft,'" the general counsel of the American
Graphophone Company wrote, "is the merest claptrap, for there exists no
property in ideas musical, literary or artistic, except as defined by
statute."59
58. To Amend and Consolidate the Acts Respecting Copyright, 283-84
(statement of Albert Walker, representative of the Auto-Music
Perforating Company of New York).
59. To Amend and Consolidate the Acts Respecting Copyright, 376
(prepared memorandum of Philip Mauro, general patent counsel of the
American Graphophone Company Association).
238
The law soon resolved this battle in favor of the composer and
the recording artist. Congress amended the law to make sure that
composers would be paid for the "mechanical reproductions" of their
music. But rather than simply granting the composer complete control
over the right to make mechanical reproductions, Congress gave
recording artists a right to record the music, at a price set by
Congress, once the composer allowed it to be recorded once. This is the
part of copyright law that makes cover songs possible. Once a composer
authorizes a recording of his song, others are free to record the same
song, so long as they pay the original composer a fee set by the law.
239
American law ordinarily calls this a "compulsory license," but I will
refer to it as a "statutory license." A statutory license is a license
whose key terms are set by law. After Congress's amendment of the
Copyright Act in 1909, record companies were free to distribute copies
of recordings so long as they paid the composer (or copyright holder)
the fee set by the statute.
240
This is an exception within the law of copyright. When John Grisham
writes a novel, a publisher is free to publish that novel only if
Grisham gives the publisher permission. Grisham, in turn, is free to
charge whatever he wants for that permission. The price to publish
Grisham is thus set by Grisham, and copyright law ordinarily says you
have no permission to use Grisham's work except with permission of
Grisham.
241
But the law governing recordings gives recording artists less. And
thus, in effect, the law subsidizes the recording industry
through a kind of piracy - by giving recording artists a weaker right
than it otherwise gives creative authors. The Beatles have less control
over their creative work than Grisham does. And the beneficiaries of
this less control are the recording industry and the public. The
recording industry gets something of value for less than it otherwise
would pay; the public gets access to a much wider range of musical
creativity. Indeed, Congress was quite explicit about its reasons for
granting this right. Its fear was the monopoly power of rights holders,
and that that power would stifle follow-on creativity.60
60. Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st
sess., 217 (1908) (statement of Senator Reed Smoot, chairman),
reprinted in Legislative History of the 1909 Copyright Act, E.
Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman
Reprints, 1976).
242
While the recording industry has been quite coy about this recently,
historically it has been quite a supporter of the statutory license for
records. As a 1967 report from the House Committee on the Judiciary
relates,
243
the record producers argued vigorously that the compulsory license
system must be retained. They asserted that the record industry is a
half-billion-dollar business of great economic importance in the United
States and throughout the world; records today are the principal means
of disseminating music, and this creates special problems, since
performers need unhampered access to musical material on
nondiscriminatory terms. Historically, the record producers pointed
out, there were no recording rights before 1909 and the 1909 statute
adopted the compulsory license as a deliberate anti-monopoly condition
on the grant of these rights. They argue that the result has been an
outpouring of recorded music, with the public being given lower prices,
improved quality, and a greater choice."61
61. Copyright Law Revision: Report to Accompany H.R. 2512, House
Committee on the Judiciary, 90th Cong., 1st sess., House Document no.
83, 66 (8 March 1967). I am grateful to Glenn Brown for drawing my
attention to this report.
244
By limiting the rights musicians have, by partially pirating their
creative work, the record producers, and the public, benefit.
245
Radio
246
Radio was also born of piracy.
247
When a radio station plays a record on the air, that constitutes a
"public performance" of the composer's work.62 As I described
above, the law gives the composer (or copyright holder) an exclusive
right to public performances of his work. The radio station thus owes
the composer money for that performance.
62. See 17 United States Code, sections 106 and 110. At the
beginning, record companies printed "Not Licensed for Radio Broadcast"
and other messages purporting to restrict the ability to play a record
on a radio station. Judge Learned Hand rejected the argument that a
warning attached to a record might restrict the rights of the radio
station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86
(2nd Cir. 1940). See also Randal C. Picker, "From Edison to the
Broadcast Flag: Mechanisms of Consent and Refusal and the
Propertization of Copyright," University of Chicago Law Review
70 (2003): 281.
248
But when the radio station plays a record, it is not only performing a
copy of the composer's work. The radio station is also
performing a copy of the recording artist's work. It's one thing
to have "Happy Birthday" sung on the radio by the local children's
choir; it's quite another to have it sung by the Rolling Stones or Lyle
Lovett. The recording artist is adding to the value of the composition
performed on the radio station. And if the law were perfectly
consistent, the radio station would have to pay the recording artist
for his work, just as it pays the composer of the music for his work.
249
But it doesn't. Under the law governing radio performances, the radio
station does not have to pay the recording artist. The radio station
need only pay the composer. The radio station thus gets a bit of
something for nothing. It gets to perform the recording artist's work
for free, even if it must pay the composer something for the privilege
of playing the song.
250
This difference can be huge. Imagine you compose a piece of music.
Imagine it is your first. You own the exclusive right to authorize
public performances of that music. So if Madonna wants to sing your
song in public, she has to get your permission.
251
Imagine she does sing your song, and imagine she likes it a lot. She
then decides to make a recording of your song, and it becomes a top
hit. Under our law, every time a radio station plays your song, you get
some money. But Madonna gets nothing, save the indirect effect on the
sale of her CDs. The public performance of her recording is not a
"protected" right. The radio station thus gets to pirate the
value of Madonna's work without paying her anything.
252
No doubt, one might argue that, on balance, the recording artists
benefit. On average, the promotion they get is worth more than the
performance rights they give up. Maybe. But even if so, the law
ordinarily gives the creator the right to make this choice. By making
the choice for him or her, the law gives the radio station the right to
take something for nothing.
253
Cable TV
254
Cable TV was also born of a kind of piracy.
255
When cable entrepreneurs first started wiring communities with cable
television in 1948, most refused to pay broadcasters for the content
that they echoed to their customers. Even when the cable companies
started selling access to television broadcasts, they refused to pay
for what they sold. Cable companies were thus Napsterizing
broadcasters' content, but more egregiously than anything Napster ever
did - Napster never charged for the content it enabled others to give
away.
256
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
"unfair and potentially destructive competition."63 There may
have been a "public interest" in spreading the reach of cable TV, but
as Douglas Anello, general counsel to the National Association of
Broadcasters, asked Senator Quentin Burdick during testimony, "Does
public interest dictate that you use somebody else's
property?"64 As another broadcaster put it,
63. Copyright Law Revision - CATV: Hearing on S. 1006 Before the
Subcommittee on Patents, Trademarks, and Copyrights of the Senate
Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement
of Rosel H. Hyde, chairman of the Federal Communications Commission).
64. Copyright Law Revision - CATV, 116 (statement of Douglas A. Anello,
general counsel of the National Association of Broadcasters).
257
The extraordinary thing about the CATV business is that it is the only
business I know of where the product that is being sold is not paid
for."65
65. Copyright Law Revision - CATV, 126 (statement of Ernest W. Jennes,
general counsel of the Association of Maximum Service Telecasters,
Inc.).
258
Again, the demand of the copyright holders seemed reasonable enough:
259
All we are asking for is a very simple thing, that people who now take
our property for nothing pay for it. We are trying to stop piracy and I
don't think there is any lesser word to describe it. I think there are
harsher words which would fit it."66
66. Copyright Law Revision - CATV, 169 (joint statement of Arthur B.
Krim, president of United Artists Corp., and John Sinn, president of
United Artists Television, Inc.).
260
These were "free-ride[rs]," Screen Actor's Guild president Charlton
Heston said, who were "depriving actors of compensation."67
67. Copyright Law Revision - CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
261
But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
262
Our point here is that unlike the problem of whether you have any
copyright protection at all, the problem here is whether copyright
holders who are already compensated, who already have a monopoly,
should be permitted to extend that monopoly. ... The question here is
how much compensation they should have and how far back they should
carry their right to compensation."68
68. Copyright Law Revision - CATV, 216 (statement of Edwin M. Zimmerman,
acting assistant attorney general).
263
Copyright owners took the cable companies to court. Twice the Supreme
Court held that the cable companies owed the copyright owners nothing.
264
It took Congress almost thirty years before it resolved the question of
whether cable companies had to pay for the content they "pirated." In
the end, Congress resolved this question in the same way that it
resolved the question about record players and player pianos. Yes,
cable companies would have to pay for the content that they broadcast;
but the price they would have to pay was not set by the copyright
owner. The price was set by law, so that the broadcasters couldn't
exercise veto power over the emerging technologies of cable. Cable
companies thus built their empire in part upon a "piracy" of the value
created by broadcasters' content.
265
These separate stories sing a common theme. If "piracy" means
using value from someone else's creative property without permission
from that creator - as it is increasingly described today69 -
then every industry affected by copyright today is the product
and beneficiary of a certain kind of piracy. Film, records, radio,
cable TV. ... The list is long and could well be expanded. Every
generation welcomes the pirates from the last. Every generation - until
now.
69. See, for example, National Music Publisher's Association, The
Engine of Free Expression: Copyright on the Internet - The Myth of Free
Information, available at link #13. "The threat of piracy"the use
of someone else's creative work without permission or compensation -
has grown with the Internet."
266
267
There is piracy of copyrighted material. Lots of it. This piracy
comes in many forms. The most significant is commercial piracy, the
unauthorized taking of other people's content within a commercial
context. Despite the many justifications that are offered in its
defense, this taking is wrong. No one should condone it, and the law
should stop it.
268
But as well as copy-shop piracy, there is another kind of "taking" that
is more directly related to the Internet. That taking, too, seems wrong
to many, and it is wrong much of the time. Before we paint this taking
"piracy," however, we should understand its nature a bit more. For the
harm of this taking is significantly more ambiguous than outright
copying, and the law should account for that ambiguity, as it has so
often done in the past.
269
Piracy I
270
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
content, copy it, and sell it - all without the permission of a
copyright owner. The recording industry estimates that it loses about
$4.6 billion every year to physical piracy70 (that works out
to one in three CDs sold worldwide). The MPAA estimates that it loses
$3 billion annually worldwide to piracy.
70. See IFPI (International Federation of the Phonographic Industry),
The Recording Industry Commercial Piracy Report 2003, July 2003,
available at link #14. See also Ben Hunt, "Companies Warned on Music
Piracy Risk," Financial Times, 14 February 2003, 11.
271
This is piracy plain and simple. Nothing in the argument of this book,
nor in the argument that most people make when talking about the
subject of this book, should draw into doubt this simple point: This
piracy is wrong.
272
Which is not to say that excuses and justifications couldn't be made
for it. We could, for example, remind ourselves that for the first one
hundred years of the American Republic, America did not honor foreign
copyrights. We were born, in this sense, a pirate nation. It might
therefore seem hypocritical for us to insist so strongly that other
developing nations treat as wrong what we, for the first hundred years
of our existence, treated as right.
273
That excuse isn't terribly strong. Technically, our law did not ban the
taking of foreign works. It explicitly limited itself to American
works. Thus the American publishers who published foreign works without
the permission of foreign authors were not violating any rule. The copy
shops in Asia, by contrast, are violating Asian law. Asian law does
protect foreign copyrights, and the actions of the copy shops violate
that law. So the wrong of piracy that they engage in is not just a
moral wrong, but a legal wrong, and not just an internationally legal
wrong, but a locally legal wrong as well.
274
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose not
to protect copyright internationally. We may have been born a pirate
nation, but we will not allow any other nation to have a similar
childhood.
275
If a country is to be treated as a sovereign, however, then its laws
are its laws regardless of their source. The international law under
which these nations live gives them some opportunities to escape the
burden of intellectual property law.71 In my view, more
developing nations should take advantage of that opportunity, but when
they don't, then their laws should be respected. And under the laws of
these nations, this piracy is wrong.
71. See Peter Drahos with John Braithwaite, Information Feudalism:
Who Owns the Knowledge Economy? (New York: The New Press, 2003),
10-13, 209. The Trade-Related Aspects of Intellectual Property Rights
(TRIPS) agreement obligates member nations to create administrative and
enforcement mechanisms for intellectual property rights, a costly
proposition for developing countries. Additionally, patent rights may
lead to higher prices for staple industries such as agriculture.
Critics of TRIPS question the disparity between burdens imposed upon
developing countries and benefits conferred to industrialized nations.
TRIPS does permit governments to use patents for public, noncommercial
uses without first obtaining the patent holder's permission. Developing
nations may be able to use this to gain the benefits of foreign patents
at lower prices. This is a promising strategy for developing nations
within the TRIPS framework.
276
Alternatively, we could try to excuse this piracy by noting that in any
case, it does no harm to the industry. The Chinese who get access to
American CDs at 50 cents a copy are not people who would have bought
those American CDs at $15 a copy. So no one really has any less money
than they otherwise would have had.72
72. For an analysis of the economic impact of copying technology, see
Stan Liebowitz, Rethinking the Network Economy (New York:
Amacom, 2002), 144-90. "In some instances ... the impact of piracy on
the copyright holder's ability to appropriate the value of the work
will be negligible. One obvious instance is the case where the
individual engaging in pirating would not have purchased an original
even if pirating were not an option." Ibid., 149.
277
This is often true (though I have friends who have purchased many
thousands of pirated DVDs who certainly have enough money to pay for
the content they have taken), and it does mitigate to some degree the
harm caused by such taking. Extremists in this debate love to say, "You
wouldn't go into Barnes & Noble and take a book off of the shelf
without paying; why should it be any different with on-line music?" The
difference is, of course, that when you take a book from Barnes &
Noble, it has one less book to sell. By contrast, when you take an MP3
from a computer network, there is not one less CD that can be sold. The
physics of piracy of the intangible are different from the physics of
piracy of the tangible.
278
This argument is still very weak. However, although copyright is a
property right of a very special sort, it is a property right.
Like all property rights, the copyright gives the owner the right to
decide the terms under which content is shared. If the copyright owner
doesn't want to sell, she doesn't have to. There are exceptions:
important statutory licenses that apply to copyrighted content
regardless of the wish of the copyright owner. Those licenses give
people the right to "take" copyrighted content whether or not the
copyright owner wants to sell. But where the law does not give people
the right to take content, it is wrong to take that content even if the
wrong does no harm. If we have a property system, and that system is
properly balanced to the technology of a time, then it is wrong to take
property without the permission of a property owner. That is exactly
what "property" means.
279
Finally, we could try to excuse this piracy with the argument that the
piracy actually helps the copyright owner. When the Chinese "steal"
Windows, that makes the Chinese dependent on Microsoft. Microsoft loses
the value of the software that was taken. But it gains users who are
used to life in the Microsoft world. Over time, as the nation grows
more wealthy, more and more people will buy software rather than steal
it. And hence over time, because that buying will benefit Microsoft,
Microsoft benefits from the piracy. If instead of pirating Microsoft
Windows, the Chinese used the free GNU/Linux operating system, then
these Chinese users would not eventually be buying Microsoft. Without
piracy, then, Microsoft would lose.
280
This argument, too, is somewhat true. The addiction strategy is a good
one. Many businesses practice it. Some thrive because of it. Law
students, for example, are given free access to the two largest legal
databases. The companies marketing both hope the students will become
so used to their service that they will want to use it and not the
other when they become lawyers (and must pay high subscription fees).
281
Still, the argument is not terribly persuasive. We don't give the
alcoholic a defense when he steals his first beer, merely because that
will make it more likely that he will buy the next three. Instead, we
ordinarily allow businesses to decide for themselves when it is best to
give their product away. If Microsoft fears the competition of
GNU/Linux, then Microsoft can give its product away, as it did, for
example, with Internet Explorer to fight Netscape. A property right
means giving the property owner the right to say who gets access to
what - at least ordinarily. And if the law properly balances the rights
of the copyright owner with the rights of access, then violating the
law is still wrong.
282
Thus, while I understand the pull of these justifications for piracy,
and I certainly see the motivation, in my view, in the end, these
efforts at justifying commercial piracy simply don't cut it. This kind
of piracy is rampant and just plain wrong. It doesn't transform the
content it steals; it doesn't transform the market it competes in. It
merely gives someone access to something that the law says he should
not have. Nothing has changed to draw that law into doubt. This form of
piracy is flat out wrong.
283
But as the examples from the four chapters that introduced this part
suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
at least, not all "piracy" is wrong if that term is understood in the
way it is increasingly used today. Many kinds of "piracy" are useful
and productive, to produce either new content or new ways of doing
business. Neither our tradition nor any tradition has ever banned all
"piracy" in that sense of the term.
284
This doesn't mean that there are no questions raised by the latest
piracy concern, peer-to-peer file sharing. But it does mean that we
need to understand the harm in peer-to-peer sharing a bit more before
we condemn it to the gallows with the charge of piracy.
285
For (1) like the original Hollywood, p2p sharing escapes an overly
controlling industry; and (2) like the original recording industry, it
simply exploits a new way to distribute content; but (3) unlike cable
TV, no one is selling the content that is shared on p2p services.
286
These differences distinguish p2p sharing from true piracy. They should
push us to find a way to protect artists while enabling this sharing to
survive.
287
Piracy II
288
The key to the "piracy" that the law aims to quash is a use that
"rob[s] the author of [his] profit."73 This means we must
determine whether and how much p2p sharing harms before we know how
strongly the law should seek to either prevent it or find an
alternative to assure the author of his profit.
73. Bach v. Longman, 98 Eng. Rep. 1274 (1777).
289
Peer-to-peer sharing was made famous by Napster. But the inventors of
the Napster technology had not made any major technological
innovations. Like every great advance in innovation on the Internet
(and, arguably, off the Internet as well74 ), Shawn Fanning and
crew had simply put together components that had been developed
independently.
74. See Clayton M. Christensen, The Innovator's Dilemma: The
Revolutionary National Bestseller That Changed the Way We Do
Business (New York: HarperBusiness, 2000). Professor Christensen
examines why companies that give rise to and dominate a product area
are frequently unable to come up with the most creative,
paradigm-shifting uses for their own products. This job usually falls
to outside innovators, who reassemble existing technology in inventive
ways. For a discussion of Christensen's ideas, see Lawrence Lessig,
Future, 89-92, 139.
290
The result was spontaneous combustion. Launched in July 1999, Napster
amassed over 10 million users within nine months. After eighteen
months, there were close to 80 million registered users of the
system.75 Courts quickly shut Napster down, but other services
emerged to take its place. (Kazaa is currently the most popular p2p
service. It boasts over 100 million members.) These services' systems
are different architecturally, though not very different in function:
Each enables users to make content available to any number of other
users. With a p2p system, you can share your favorite songs with your
best friend - or your 20,000 best friends.
75. See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare,"
San Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll
Suicide," New Scientist, 6 July 2002, 42; Benny Evangelista,
"Napster Names CEO, Secures New Financing," San Francisco
Chronicle, 23 May 2003, C1; "Napster's Wake-Up Call,"
Economist, 24 June 2000, 23; John Naughton, "Hollywood at War
with the Internet" (London) Times, 26 July 2002, 18.
291
According to a number of estimates, a huge proportion of Americans have
tasted file-sharing technology. A study by Ipsos-Insight in September
2002 estimated that 60 million Americans had downloaded music - 28
percent of Americans older than 12.76 A survey by the NPD
group quoted in The New York Times estimated that 43 million
citizens used file-sharing networks to exchange content in May
2003.77 The vast majority of these are not kids. Whatever the
actual figure, a massive quantity of content is being "taken" on these
networks. The ease and inexpensiveness of file-sharing networks have
inspired millions to enjoy music in a way that they hadn't before.
76. See Ipsos-Insight, TEMPO: Keeping Pace with Online Music
Distribution (September 2002), reporting that 28 percent of
Americans aged twelve and older have downloaded music off of the
Internet and 30 percent have listened to digital music files stored on
their computers.
77. Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
York Times, 6 June 2003, A1.
292
Some of this enjoying involves copyright infringement. Some of it does
not. And even among the part that is technically copyright
infringement, calculating the actual harm to copyright owners is more
complicated than one might think. So consider - a bit more carefully
than the polarized voices around this debate usually do - the kinds of
sharing that file sharing enables, and the kinds of harm it entails.
293
File sharers share different kinds of content. We can divide these
different kinds into four types.
294
A. There are some who use sharing networks as substitutes for
purchasing content. Thus, when a new Madonna CD is released, rather
than buying the CD, these users simply take it. We might quibble about
whether everyone who takes it would actually have bought it if sharing
didn't make it available for free. Most probably wouldn't have, but
clearly there are some who would. The latter are the target of category
A: users who download instead of purchasing.
295
B. There are some who use sharing networks to sample music before
purchasing it. Thus, a friend sends another friend an MP3 of an artist
he's not heard of. The other friend then buys CDs by that artist. This
is a kind of targeted advertising, quite likely to succeed. If the
friend recommending the album gains nothing from a bad recommendation,
then one could expect that the recommendations will actually be quite
good. The net effect of this sharing could increase the quantity of
music purchased.
296
C. There are many who use sharing networks to get access to copyrighted
content that is no longer sold or that they would not have purchased
because the transaction costs off the Net are too high. This use of
sharing networks is among the most rewarding for many. Songs that were
part of your childhood but have long vanished from the marketplace
magically appear again on the network. (One friend told me that when
she discovered Napster, she spent a solid weekend "recalling" old
songs. She was astonished at the range and mix of content that was
available.) For content not sold, this is still technically a violation
of copyright, though because the copyright owner is not selling the
content anymore, the economic harm is zero - the same harm that occurs
when I sell my collection of 1960s 45-rpm records to a local collector.
297
D. Finally, there are many who use sharing networks to get access to
content that is not copyrighted or that the copyright owner wants to
give away.
298
How do these different types of sharing balance out?
299
Let's start with some simple but important points. From the perspective
of the law, only type D sharing is clearly legal. From the perspective
of economics, only type A sharing is clearly harmful.78 Type B
sharing is illegal but plainly beneficial. Type C sharing is illegal,
yet good for society (since more exposure to music is good) and
harmless to the artist (since the work is not otherwise available). So
how sharing matters on balance is a hard question to answer - and
certainly much more difficult than the current rhetoric around the
issue suggests.
78. See Liebowitz, Rethinking the Network Economy, 148-49.
300
Whether on balance sharing is harmful depends importantly on how
harmful type A sharing is. Just as Edison complained about Hollywood,
composers complained about piano rolls, recording artists complained
about radio, and broadcasters complained about cable TV, the music
industry complains that type A sharing is a kind of "theft" that is
"devastating" the industry.
301
While the numbers do suggest that sharing is harmful, how harmful is
harder to reckon. It has long been the recording industry's practice to
blame technology for any drop in sales. The history of cassette
recording is a good example. As a study by Cap Gemini Ernst & Young
put it, "Rather than exploiting this new, popular technology, the
labels fought it."79 The labels claimed that every album taped
was an album unsold, and when record sales fell by 11.4 percent in
1981, the industry claimed that its point was proved. Technology was
the problem, and banning or regulating technology was the answer.
79. See Cap Gemini Ernst & Young, Technology Evolution and the
Music Industry's Business Model Crisis (2003), 3. This report
describes the music industry's effort to stigmatize the budding
practice of cassette taping in the 1970s, including an advertising
campaign featuring a cassette-shape skull and the caption "Home taping
is killing music."Copyright and Home Copying: Technology Challenges the
Law, OTA-CIT-422 (Washington, D.C.: U.S. Government Printing
Office, October 1989), 145-56.
302
Yet soon thereafter, and before Congress was given an opportunity to
enact regulation, MTV was launched, and the industry had a record
turnaround. "In the end," Cap Gemini concludes, "the 'crisis' ... was
not the fault of the tapers" who did not [stop after MTV came into
being] - but had to a large extent resulted from stagnation in musical
innovation at the major labels."80
80. U.S. Congress, Copyright and Home Copying, 4.
303
But just because the industry was wrong before does not mean it is
wrong today. To evaluate the real threat that p2p sharing presents to
the industry in particular, and society in general - or at least the
society that inherits the tradition that gave us the film industry, the
record industry, the radio industry, cable TV, and the VCR - the
question is not simply whether type A sharing is harmful. The question
is also how harmful type A sharing is, and how beneficial the
other types of sharing are.
304
We start to answer this question by focusing on the net harm, from the
standpoint of the industry as a whole, that sharing networks cause. The
"net harm" to the industry as a whole is the amount by which type A
sharing exceeds type B. If the record companies sold more records
through sampling than they lost through substitution, then sharing
networks would actually benefit music companies on balance. They would
therefore have little static reason to resist them.
305
Could that be true? Could the industry as a whole be gaining because of
file sharing? Odd as that might sound, the data about CD sales actually
suggest it might be close.
306
In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
from 882 million to 803 million units; revenues fell 6.7
percent.81 This confirms a trend over the past few years. The
RIAA blames Internet piracy for the trend, though there are many other
causes that could account for this drop. SoundScan, for example,
reports a more than 20 percent drop in the number of CDs released since
1999. That no doubt accounts for some of the decrease in sales. Rising
prices could account for at least some of the loss. "From 1999 to 2001,
the average price of a CD rose 7.2 percent, from $13.04 to
$14.19."82 Competition from other forms of media could also
account for some of the decline. As Jane Black of BusinessWeek
notes, "The soundtrack to the film High Fidelity has a list
price of $18.98. You could get the whole movie [on DVD] for
$19.99."83
81. See Recording Industry Association of America, 2002 Yearend
Statistics, available at link #15. A later report indicates even
greater losses. See Recording Industry Association of America, Some
Facts About Music Piracy, 25 June 2003, available at link #16: "In
the past four years, unit shipments of recorded music have fallen by 26
percent from 1.16 billion units in 1999 to 860 million units in 2002 in
the United States (based on units shipped). In terms of sales, revenues
are down 14 percent, from $14.6 billion in 1999 to $12.6 billion last
year (based on U.S. dollar value of shipments). The music industry
worldwide has gone from a $39 billion industry in 2000 down to a $32
billion industry in 2002 (based on U.S. dollar value of shipments)."
82. Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
February 2003, available at link #17.
83. Ibid.
307
But let's assume the RIAA is right, and all of the decline in CD sales
is because of Internet sharing. Here's the rub: In the same period that
the RIAA estimates that 803 million CDs were sold, the RIAA estimates
that 2.1 billion CDs were downloaded for free. Thus, although 2.6 times
the total number of CDs sold were downloaded for free, sales revenue
fell by just 6.7 percent.
308
There are too many different things happening at the same time to
explain these numbers definitively, but one conclusion is unavoidable:
The recording industry constantly asks, "What's the difference between
downloading a song and stealing a CD?" - but their own numbers reveal
the difference. If I steal a CD, then there is one less CD to sell.
Every taking is a lost sale. But on the basis of the numbers the RIAA
provides, it is absolutely clear that the same is not true of
downloads. If every download were a lost sale - if every use of Kazaa
"rob[bed] the author of [his] profit" - then the industry would have
suffered a 100 percent drop in sales last year, not a 7 percent drop.
If 2.6 times the number of CDs sold were downloaded for free, and yet
sales revenue dropped by just 6.7 percent, then there is a huge
difference between "downloading a song and stealing a CD."
309
These are the harms - alleged and perhaps exaggerated but, let's
assume, real. What of the benefits? File sharing may impose costs on
the recording industry. What value does it produce in addition to these
costs?
310
One benefit is type C sharing - making available content that is
technically still under copyright but is no longer commercially
available. This is not a small category of content. There are millions
of tracks that are no longer commercially available.84 And
while it's conceivable that some of this content is not available
because the artist producing the content doesn't want it to be made
available, the vast majority of it is unavailable solely because the
publisher or the distributor has decided it no longer makes economic
sense to the company to make it available.
84. By one estimate, 75 percent of the music released by the major
labels is no longer in print. See Online Entertainment and Copyright
Law - Coming Soon to a Digital Device Near You: Hearing Before the
Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
2001) (prepared statement of the Future of Music Coalition), available
at link #18.
311
In real space - long before the Internet - the market had a simple
response to this problem: used book and record stores. There are
thousands of used book and used record stores in America
today.85 These stores buy content from owners, then sell the
content they buy. And under American copyright law, when they buy and
sell this content, even if the content is still under copyright ,
the copyright owner doesn't get a dime. Used book and record stores are
commercial entities; their owners make money from the content they
sell; but as with cable companies before statutory licensing, they
don't have to pay the copyright owner for the content they sell.
85. While there are not good estimates of the number of used record
stores in existence, in 2002, there were 7,198 used book dealers in the
United States, an increase of 20 percent since 1993. See Book Hunter
Press, The Quiet Revolution: The Expansion of the Used Book
Market (2002), available at link #19. Used records accounted for
$260 million in sales in 2002. See National Association of Recording
Merchandisers, "2002 Annual Survey Results," available at link #20.
312
Type C sharing, then, is very much like used book stores or used record
stores. It is different, of course, because the person making the
content available isn't making money from making the content available.
It is also different, of course, because in real space, when I sell a
record, I don't have it anymore, while in cyberspace, when someone
shares my 1949 recording of Bernstein's "Two Love Songs," I still have
it. That difference would matter economically if the owner of the 1949
copyright were selling the record in competition to my sharing. But
we're talking about the class of content that is not currently
commercially available. The Internet is making it available, through
cooperative sharing, without competing with the market.
313
It may well be, all things considered, that it would be better if the
copyright owner got something from this trade. But just because it may
well be better, it doesn't follow that it would be good to ban used
book stores. Or put differently, if you think that type C sharing
should be stopped, do you think that libraries and used book stores
should be shut as well?
314
Finally, and perhaps most importantly, file-sharing networks enable
type D sharing to occur - the sharing of content that copyright owners
want to have shared or for which there is no continuing copyright. This
sharing clearly benefits authors and society. Science fiction author
Cory Doctorow, for example, released his first novel, Down and Out
in the Magic Kingdom , both free on-line and in bookstores on the
same day. His (and his publisher's) thinking was that the on-line
distribution would be a great advertisement for the "real" book. People
would read part on-line, and then decide whether they liked the book or
not. If they liked it, they would be more likely to buy it. Doctorow's
content is type D content. If sharing networks enable his work to be
spread, then both he and society are better off. (Actually, much better
off: It is a great book!)
315
Likewise for work in the public domain: This sharing benefits society
with no legal harm to authors at all. If efforts to solve the problem
of type A sharing destroy the opportunity for type D sharing, then we
lose something important in order to protect type A content.
316
The point throughout is this: While the recording industry
understandably says, "This is how much we've lost," we must also ask,
"How much has society gained from p2p sharing? What are the
efficiencies? What is the content that otherwise would be unavailable?"
317
For unlike the piracy I described in the first section of this chapter,
much of the "piracy" that file sharing enables is plainly legal and
good. And like the piracy I described in chapter 4, much of this piracy
is motivated by a new way of spreading content caused by changes in the
technology of distribution. Thus, consistent with the tradition that
gave us Hollywood, radio, the recording industry, and cable TV, the
question we should be asking about file sharing is how best to preserve
its benefits while minimizing (to the extent possible) the wrongful
harm it causes artists. The question is one of balance. The law should
seek that balance, and that balance will be found only with time.
318
"But isn't the war just a war against illegal sharing? Isn't the target
just what you call type A sharing?"
319
You would think. And we should hope. But so far, it is not. The effect
of the war purportedly on type A sharing alone has been felt far beyond
that one class of sharing. That much is obvious from the Napster case
itself. When Napster told the district court that it had developed a
technology to block the transfer of 99.4 percent of identified
infringing material, the district court told counsel for Napster 99.4
percent was not good enough. Napster had to push the infringements
"down to zero."86
86. See Transcript of Proceedings, In Re: Napster Copyright Litigation
at 34- 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
MHP, available at link #21. For an account of the litigation and its
toll on Napster, see Joseph Menn, All the Rave: The Rise and Fall of
Shawn Fanning's Napster (New York: Crown Business, 2003), 269-82.
320
If 99.4 percent is not good enough, then this is a war on file-sharing
technologies, not a war on copyright infringement. There is no way to
assure that a p2p system is used 100 percent of the time in compliance
with the law, any more than there is a way to assure that 100 percent
of VCRs or 100 percent of Xerox machines or 100 percent of handguns are
used in compliance with the law. Zero tolerance means zero p2p. The
court's ruling means that we as a society must lose the benefits of
p2p, even for the totally legal and beneficial uses they serve, simply
to assure that there are zero copyright infringements caused by p2p.
321
Zero tolerance has not been our history. It has not produced the
content industry that we know today. The history of American law has
been a process of balance. As new technologies changed the way content
was distributed, the law adjusted, after some time, to the new
technology. In this adjustment, the law sought to ensure the legitimate
rights of creators while protecting innovation. Sometimes this has
meant more rights for creators. Sometimes less.
322
So, as we've seen, when "mechanical reproduction" threatened the
interests of composers, Congress balanced the rights of composers
against the interests of the recording industry. It granted rights to
composers, but also to the recording artists: Composers were to be
paid, but at a price set by Congress. But when radio started
broadcasting the recordings made by these recording artists, and they
complained to Congress that their "creative property" was not being
respected (since the radio station did not have to pay them for the
creativity it broadcast), Congress rejected their claim. An indirect
benefit was enough.
323
Cable TV followed the pattern of record albums. When the courts
rejected the claim that cable broadcasters had to pay for the content
they rebroadcast, Congress responded by giving broadcasters a right to
compensation, but at a level set by the law. It likewise gave cable
companies the right to the content, so long as they paid the statutory
price.
324
This compromise, like the compromise affecting records and player
pianos, served two important goals - indeed, the two central goals of
any copyright legislation. First, the law assured that new innovators
would have the freedom to develop new ways to deliver content. Second,
the law assured that copyright holders would be paid for the content
that was distributed. One fear was that if Congress simply required
cable TV to pay copyright holders whatever they demanded for their
content, then copyright holders associated with broadcasters would use
their power to stifle this new technology, cable. But if Congress had
permitted cable to use broadcasters' content for free, then it would
have unfairly subsidized cable. Thus Congress chose a path that would
assure compensation without giving the past (broadcasters)
control over the future (cable).
325
In the same year that Congress struck this balance, two major producers
and distributors of film content filed a lawsuit against another
technology, the video tape recorder (VTR, or as we refer to them today,
VCRs) that Sony had produced, the Betamax. Disney's and Universal's
claim against Sony was relatively simple: Sony produced a device,
Disney and Universal claimed, that enabled consumers to engage in
copyright infringement. Because the device that Sony built had a
"record" button, the device could be used to record copyrighted movies
and shows. Sony was therefore benefiting from the copyright
infringement of its customers. It should therefore, Disney and
Universal claimed, be partially liable for that infringement.
326
There was something to Disney's and Universal's claim. Sony did decide
to design its machine to make it very simple to record television
shows. It could have built the machine to block or inhibit any direct
copying from a television broadcast. Or possibly, it could have built
the machine to copy only if there were a special "copy me" signal on
the line. It was clear that there were many television shows that did
not grant anyone permission to copy. Indeed, if anyone had asked, no
doubt the majority of shows would not have authorized copying. And in
the face of this obvious preference, Sony could have designed its
system to minimize the opportunity for copyright infringement. It did
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
327
MPAA president Jack Valenti became the studios' most vocal champion.
Valenti called VCRs "tapeworms." He warned, "When there are 20, 30, 40
million of these VCRs in the land, we will be invaded by millions of
'tapeworms,' eating away at the very heart and essence of the most
precious asset the copyright owner has, his copyright."87 "One
does not have to be trained in sophisticated marketing and creative
judgment," he told Congress, "to understand the devastation on the
after-theater marketplace caused by the hundreds of millions of tapings
that will adversely impact on the future of the creative community in
this country. It is simply a question of basic economics and plain
common sense."88 Indeed, as surveys would later show, 45
percent of VCR owners had movie libraries of ten videos or
more89 - a use the Court would later hold was not "fair." By
"allowing VCR owners to copy freely by the means of an exemption from
copyright infringement without creating a mechanism to compensate
copyright owners," Valenti testified, Congress would "take from the
owners the very essence of their property: the exclusive right to
control who may use their work, that is, who may copy it and thereby
profit from its reproduction."90
87. Copyright Infringements (Audio and Video Recorders): Hearing on S.
1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and
2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
Picture Association of America, Inc.).
88. Copyright Infringements (Audio and Video Recorders), 475.
89. Universal City Studios, Inc. v. Sony Corp. of America, 480 F.
Supp. 429, 438 (C.D. Cal., 1979).
90. Copyright Infringements (Audio and Video Recorders), 485 (testimony
of Jack Valenti).
328
It took eight years for this case to be resolved by the Supreme Court.
In the interim, the Ninth Circuit Court of Appeals, which includes
Hollywood in its jurisdiction - leading Judge Alex Kozinski, who sits
on that court, refers to it as the "Hollywood Circuit" - held that Sony
would be liable for the copyright infringement made possible by its
machines. Under the Ninth Circuit's rule, this totally familiar
technology - which Jack Valenti had called "the Boston Strangler of the
American film industry" (worse yet, it was a Japanese Boston
Strangler of the American film industry) - was an illegal
technology.91
91. Universal City Studios, Inc. v. Sony Corp. of America, 659 F.
2d 963 (9th Cir. 1981).
329
But the Supreme Court reversed the decision of the Ninth Circuit. And
in its reversal, the Court clearly articulated its understanding of
when and whether courts should intervene in such disputes. As the Court
wrote,
330
Sound policy, as well as history, supports our consistent deference to
Congress when major technological innovations alter the market for
copyrighted materials. Congress has the constitutional authority and
the institutional ability to accommodate fully the varied permutations
of competing interests that are inevitably implicated by such new
technology."92
92. Sony Corp. of America v. Universal City Studios, Inc., 464
U.S. 417, 431 (1984).
331
Congress was asked to respond to the Supreme Court's decision. But as
with the plea of recording artists about radio broadcasts, Congress
ignored the request. Congress was convinced that American film got
enough, this "taking" notwithstanding.
332
If we put these cases together, a pattern is clear:
333
334
CASE WHOSE VALUE WAS "PIRATED" RESPONSE OF THE COURTS RESPONSE OF CONGRESS Recordings Composers No Protection Statutory License Radio Recording Artists N/A Nothing Cable TV Broadcasters No Protection Statutory License VCR Film Creators No Protection Nothing
In each case throughout our history, a new technology changed the way
content was distributed.93 In each case, throughout our
history, that change meant that someone got a "free ride" on someone
else's work.
93. These are the most important instances in our history, but there are
other cases as well. The technology of digital audio tape (DAT), for
example, was regulated by Congress to minimize the risk of piracy. The
remedy Congress imposed did burden DAT producers, by taxing tape sales
and controlling the technology of DAT. See Audio Home Recording Act of
1992 (Title 17 of the United States Code ), Pub. L. No. 102-563,
106 Stat. 4237, codified at 17 U.S.C. § 1001. Again, however, this
regulation did not eliminate the opportunity for free riding in the
sense I've described. See Lessig, Future, 71. See also Picker,
"From Edison to the Broadcast Flag," University of Chicago Law
Review 70 (2003): 293-96.
335
In none of these cases did either the courts or Congress
eliminate all free riding. In none of these cases did the courts
or Congress insist that the law should assure that the copyright holder
get all the value that his copyright created. In every case, the
copyright owners complained of "piracy." In every case, Congress acted
to recognize some of the legiti macy in the behavior of the "pirates."
In each case, Congress allowed some new technology to benefit from
content made before. It balanced the interests at stake.
336
When you think across these examples, and the other examples that make
up the first four chapters of this section, this balance makes sense.
Was Walt Disney a pirate? Would doujinshi be better if creators had to
ask permission? Should tools that enable others to capture and spread
images as a way to cultivate or criticize our culture be better
regulated? Is it really right that building a search engine should
expose you to $15 million in damages? Would it have been better if
Edison had controlled film? Should every cover band have to hire a
lawyer to get permission to record a song?
337
We could answer yes to each of these questions, but our tradition has
answered no. In our tradition, as the Supreme Court has stated,
copyright "has never accorded the copyright owner complete control over
all possible uses of his work."94 Instead, the particular uses
that the law regulates have been defined by balancing the good that
comes from granting an exclusive right against the burdens such an
exclusive right creates. And this balancing has historically been done
after a technology has matured, or settled into the mix of
technologies that facilitate the distribution of content.
94. Sony Corp. of America v. Universal City Studios, Inc., 464
U.S. 417, 432 (1984).
338
We should be doing the same thing today. The technology of the Internet
is changing quickly. The way people connect to the Internet (wires vs.
wireless) is changing very quickly. No doubt the network should not
become a tool for "stealing" from artists. But neither should the law
become a tool to entrench one particular way in which artists (or more
accurately, distributors) get paid. As I describe in some detail in the
last chapter of this book, we should be securing income to artists
while we allow the market to secure the most efficient way to promote
and distribute content. This will require changes in the law, at least
in the interim. These changes should be designed to balance the
protection of the law against the strong public interest that
innovation continue.
339
This is especially true when a new technology enables a vastly superior
mode of distribution. And this p2p has done. P2p technologies can be
ideally efficient in moving content across a widely diverse network.
Left to develop, they could make the network vastly more efficient. Yet
these "potential public benefits," as John Schwartz writes in The
New York Times , "could be delayed in the P2P fight."95
95. John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
Echoes Past Efforts," New York Times, 22 September 2003, C3.
340
Yet when anyone begins to talk about "balance," the copyright
warriors raise a different argument. "All this hand waving about
balance and incentives," they say, "misses a fundamental point. Our
content," the warriors insist, "is our property . Why should we
wait for Congress to 'rebalance' our property rights? Do you have to
wait before calling the police when your car has been stolen? And why
should Congress deliberate at all about the merits of this theft? Do we
ask whether the car thief had a good use for the car before we arrest
him?"
341
"It is our property ," the warriors insist. "And it should be
protected just as any other property is protected."
342
"PROPERTY"
343
The copyright warriors are right: A copyright is a kind of
property. It can be owned and sold, and the law protects against its
theft. Ordinarily, the copyright owner gets to hold out for any price
he wants. Markets reckon the supply and demand that partially determine
the price she can get.
344
But in ordinary language, to call a copyright a "property" right is a
bit misleading, for the property of copyright is an odd kind of
property. Indeed, the very idea of property in any idea or any
expression is very odd. I understand what I am taking when I take the
picnic table you put in your backyard. I am taking a thing, the picnic
table, and after I take it, you don't have it. But what am I taking
when I take the good idea you had to put a picnic table in the
backyard - by, for example, going to Sears, buying a table, and putting
it in my backyard? What is the thing I am taking then?
345
The point is not just about the thingness of picnic tables versus
ideas, though that's an important difference. The point instead is that
in the ordinary case - indeed, in practically every case except for a
narrow range of exceptions - ideas released to the world are free. I
don't take anything from you when I copy the way you dress - though I
might seem weird if I did it every day, and especially weird if you are
a woman. Instead, as Thomas Jefferson said (and as is especially true
when I copy the way someone else dresses), - He who receives an idea
from me, receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening
me."96
96. Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and
Albert Ellery Bergh, eds., 1903), 330, 333-34.
346
The exceptions to free use are ideas and expressions within the reach
of the law of patent and copyright, and a few other domains that I
won't discuss here. Here the law says you can't take my idea or
expression without my permission: The law turns the intangible into
property.
347
But how, and to what extent, and in what form - the details, in other
words - matter. To get a good sense of how this practice of turning the
intangible into property emerged, we need to place this "property" in
its proper context.97
97. As the legal realists taught American law, all property rights are
intangible. A property right is simply a right that an individual has
against the world to do or not do certain things that may or may not
attach to a physical object. The right itself is intangible, even if
the object to which it is (metaphorically) attached is tangible. See
Adam Mossoff, "What Is Property? Putting the Pieces Back Together,"
Arizona Law Review 45 (2003): 373, 429 n. 241.
348
My strategy in doing this will be the same as my strategy in the
preceding part. I offer four stories to help put the idea of "copyright
material is property" in context. Where did the idea come from? What
are its limits? How does it function in practice? After these stories,
the significance of this true statement - "copyright material is
property" - will be a bit more clear, and its implications will be
revealed as quite different from the implications that the copyright
warriors would have us draw.
349
350
William Shakespeare wrote Romeo and Juliet in 1595. The
play was first published in 1597. It was the eleventh major play that
Shakespeare had written. He would continue to write plays through 1613,
and the plays that he wrote have continued to define Anglo-American
culture ever since. So deeply have the works of a sixteenth-century
writer seeped into our culture that we often don't even recognize their
source. I once overheard someone commenting on Kenneth Branagh's
adaptation of Henry V: "I liked it, but Shakespeare is so full of
clichés."
351
In 1774, almost 180 years after Romeo and Juliet was written,
the "copy-right" for the work was still thought by many to be the
exclusive right of a single London publisher, Jacob Tonson.98
Tonson was the most prominent of a small group of publishers called the
Conger99 who controlled bookselling in England during the
eighteenth century. The Conger claimed a perpetual right to control the
"copy" of books that they had acquired from authors. That perpetual
right meant that no one else could publish copies of a book to which
they held the copyright. Prices of the classics were thus kept high;
competition to produce better or cheaper editions was eliminated.
98. Jacob Tonson is typically remembered for his associations with
prominent eighteenth-century literary figures, especially John Dryden,
and for his handsome "definitive editions" of classic works. In
addition to Romeo and Juliet, he published an astonishing array
of works that still remain at the heart of the English canon, including
collected works of Shakespeare, Ben Jonson, John Milton, and John
Dryden. See Keith Walker, "Jacob Tonson, Bookseller," American
Scholar 61:3 (1992): 424-31.
99. Lyman Ray Patterson, Copyright in Historical Perspective
(Nashville: Vanderbilt University Press, 1968), 151-52.
352
Now, there's something puzzling about the year 1774 to anyone who knows
a little about copyright law. The better-known year in the history of
copyright is 1710, the year that the British Parliament adopted the
first "copyright" act. Known as the Statute of Anne, the act stated
that all published works would get a copyright term of fourteen years,
renewable once if the author was alive, and that all works already
published by 1710 would get a single term of twenty-one additional
years.100 Under this law, Romeo and Juliet should have
been free in 1731. So why was there any issue about it still being
under Tonson's control in 1774?
100. As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
"copyright law." See Vaidhyanathan, Copyrights and Copywrongs,
40.
353
The reason is that the English hadn't yet agreed on what a "copyright"
was - indeed, no one had. At the time the English passed the Statute of
Anne, there was no other legislation governing copyrights. The last law
regulating publishers, the Licensing Act of 1662, had expired in 1695.
That law gave publishers a monopoly over publishing, as a way to make
it easier for the Crown to control what was published. But after it
expired, there was no positive law that said that the publishers, or
"Stationers," had an exclusive right to print books.
354
There was no positive law, but that didn't mean that there was
no law. The Anglo-American legal tradition looks to both the words of
legislatures and the words of judges to know the rules that are to
govern how people are to behave. We call the words from legislatures
"positive law." We call the words from judges "common law." The common
law sets the background against which legislatures legislate; the
legislature, ordinarily, can trump that background only if it passes a
law to displace it. And so the real question after the licensing
statutes had expired was whether the common law protected a copyright,
independent of any positive law.
355
This question was important to the publishers, or "booksellers," as
they were called, because there was growing competition from foreign
publishers. The Scottish, in particular, were increasingly publishing
and exporting books to England. That competition reduced the profits of
the Conger, which reacted by demanding that Parliament pass a law to
again give them exclusive control over publishing. That demand
ultimately resulted in the Statute of Anne.
356
The Statute of Anne granted the author or "proprietor" of a book an
exclusive right to print that book. In an important limitation,
however, and to the horror of the booksellers, the law gave the
bookseller that right for a limited term. At the end of that term, the
copyright "expired," and the work would then be free and could be
published by anyone. Or so the legislature is thought to have believed.
357
Now, the thing to puzzle about for a moment is this: Why would
Parliament limit the exclusive right? Not why would they limit it to
the particular limit they set, but why would they limit the right at
all?}
358
For the booksellers, and the authors whom they represented, had a very
strong claim. Take Romeo and Juliet as an example: That play was
written by Shakespeare. It was his genius that brought it into the
world. He didn't take anybody's property when he created this play
(that's a controversial claim, but never mind), and by his creating
this play, he didn't make it any harder for others to craft a play. So
why is it that the law would ever allow someone else to come along and
take Shakespeare's play without his, or his estate's, permission? What
reason is there to allow someone else to "steal" Shakespeare's work?
359
The answer comes in two parts. We first need to see something special
about the notion of "copyright" that existed at the time of the Statute
of Anne. Second, we have to see something important about
"booksellers."
360
First, about copyright. In the last three hundred years, we have come
to apply the concept of "copyright" ever more broadly. But in 1710, it
wasn't so much a concept as it was a very particular right. The
copyright was born as a very specific set of restrictions: It forbade
others from reprinting a book. In 1710, the "copy-right" was a right to
use a particular machine to replicate a particular work. It did not go
beyond that very narrow right. It did not control any more generally
how a work could be used . Today the right includes a large
collection of restrictions on the freedom of others: It grants the
author the exclusive right to copy, the exclusive right to distribute,
the exclusive right to perform, and so on.
361
So, for example, even if the copyright to Shakespeare's works were
perpetual, all that would have meant under the original meaning of the
term was that no one could reprint Shakespeare's work without the
permission of the Shakespeare estate. It would not have controlled
anything, for example, about how the work could be performed, whether
the work could be translated, or whether Kenneth Branagh would be
allowed to make his films. The "copy-right" was only an exclusive right
to print - no less, of course, but also no more.
362
Even that limited right was viewed with skepticism by the British. They
had had a long and ugly experience with "exclusive rights," especially
"exclusive rights" granted by the Crown. The English had fought a civil
war in part about the Crown's practice of handing out monopolies -
especially monopolies for works that already existed. King Henry VIII
granted a patent to print the Bible and a monopoly to Darcy to print
playing cards. The English Parliament began to fight back against this
power of the Crown. In 1656, it passed the Statute of Monopolies,
limiting monopolies to patents for new inventions. And by 1710,
Parliament was eager to deal with the growing monopoly in publishing.
363
Thus the "copy-right," when viewed as a monopoly right, was naturally
viewed as a right that should be limited. (However convincing the claim
that "it's my property, and I should have it forever," try sounding
convincing when uttering, "It's my monopoly, and I should have it
forever.") The state would protect the exclusive right, but only so
long as it benefited society. The British saw the harms from
special-interest favors; they passed a law to stop them.
364
Second, about booksellers. It wasn't just that the copyright was a
monopoly. It was also that it was a monopoly held by the booksellers.
Booksellers sound quaint and harmless to us. They were not viewed as
harmless in seventeenth-century England. Members of the Conger were
increasingly seen as monopolists of the worst kind - tools of the
Crown's repression, selling the liberty of England to guarantee
themselves a monopoly profit. The attacks against these monopolists
were harsh: Milton described them as "old patentees and monopolizers in
the trade of book-selling"; they were "men who do not therefore labour
in an honest profession to which learning is indetted."101
101. Philip Wittenberg, The Protection and Marketing of Literary
Property (New York: J. Messner, Inc., 1937), 31.
365
Many believed the power the booksellers exercised over the spread of
knowledge was harming that spread, just at the time the Enlightenment
was teaching the importance of education and knowledge spread
generally. The idea that knowledge should be free was a hallmark of the
time, and these powerful commercial interests were interfering with
that idea.
366
To balance this power, Parliament decided to increase competition among
booksellers, and the simplest way to do that was to spread the wealth
of valuable books. Parliament therefore limited the term of copyrights,
and thereby guaranteed that valuable books would become open to any
publisher to publish after a limited time. Thus the setting of the term
for existing works to just twenty-one years was a compromise to fight
the power of the booksellers. The limitation on terms was an indirect
way to assure competition among publishers, and thus the construction
and spread of culture.
367
When 1731 (1710 + 21) came along, however, the booksellers were getting
anxious. They saw the consequences of more competition, and like every
competitor, they didn't like them. At first booksellers simply ignored
the Statute of Anne, continuing to insist on the perpetual right to
control publication. But in 1735 and 1737, they tried to persuade
Parliament to extend their terms. Twenty-one years was not enough, they
said; they needed more time.
368
Parliament rejected their requests. As one pamphleteer put it, in words
that echo today,
369
I see no Reason for granting a further Term now, which will not hold as
well for granting it again and again, as often as the Old ones Expire;
so that should this Bill pass, it will in Effect be establishing a
perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it
will be a great Cramp to Trade, a Discouragement to Learning, no
Benefit to the Authors, but a general Tax on the Publick; and all this
only to increase the private Gain of the Booksellers."102
102. A Letter to a Member of Parliament concerning the Bill now
depending in the House of Commons, for making more effectual an Act in
the Eighth Year of the Reign of Queen Anne, entitled, An Act for the
Encouragement of Learning, by Vesting the Copies of Printed Books in
the Authors or Purchasers of such Copies, during the Times therein
mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618).
370
Having failed in Parliament, the publishers turned to the courts in a
series of cases. Their argument was simple and direct: The Statute of
Anne gave authors certain protections through positive law, but those
protections were not intended as replacements for the common law.
Instead, they were intended simply to supplement the common law. Under
common law, it was already wrong to take another person's creative
"property" and use it without his permission. The Statute of Anne, the
booksellers argued, didn't change that. Therefore, just because the
protections of the Statute of Anne expired, that didn't mean the
protections of the common law expired: Under the common law they had
the right to ban the publication of a book, even if its Statute of Anne
copyright had expired. This, they argued, was the only way to protect
authors.
371
This was a clever argument, and one that had the support of some of the
leading jurists of the day. It also displayed extraordinary chutzpah.
Until then, as law professor Raymond Patterson has put it, "The
publishers ... had as much concern for authors as a cattle rancher has
for cattle."103 The bookseller didn't care squat for the
rights of the author. His concern was the monopoly profit that the
author's work gave.
103. Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use,"
Vanderbilt Law Review 40 (1987): 28. For a wonderfully
compelling account, see Vaidhyanathan, 37-48.
372
The booksellers' argument was not accepted without a fight. The hero of
this fight was a Scottish bookseller named Alexander
Donaldson.104
104. For a compelling account, see David Saunders, Authorship and
Copyright (London: Routledge, 1992), 62-69.
373
Donaldson was an outsider to the London Conger. He began his career in
Edinburgh in 1750. The focus of his business was inexpensive reprints
"of standard works whose copyright term had expired," at least under
the Statute of Anne.105 Donaldson's publishing house prospered
and became "something of a center for literary Scotsmen." "[A]mong
them," Professor Mark Rose writes, was "the young James Boswell who,
together with his friend Andrew Erskine, published an anthology of
contemporary Scottish poems with Donaldson."106
105. Mark Rose, Authors and Owners (Cambridge: Harvard University
Press, 1993), 92.
106. Ibid., 93.
374
When the London booksellers tried to shut down Donaldson's shop in
Scotland, he responded by moving his shop to London, where he sold
inexpensive editions "of the most popular English books, in defiance of
the supposed common law right of Literary Property."107 His
books undercut the Conger prices by 30 to 50 percent, and he rested his
right to compete upon the ground that, under the Statute of Anne, the
works he was selling had passed out of protection.
107. Lyman Ray Patterson, Copyright in Historical Perspective,
167 (quoting Borwell).
375
The London booksellers quickly brought suit to block "piracy" like
Donaldson's. A number of actions were successful against the "pirates,"
the most important early victory being Millar v. Taylor .
376
Millar was a bookseller who in 1729 had purchased the rights to James
Thomson's poem "The Seasons." Millar complied with the requirements of
the Statute of Anne, and therefore received the full protection of the
statute. After the term of copyright ended, Robert Taylor began
printing a competing volume. Millar sued, claiming a perpetual common
law right, the Statute of Anne notwithstanding.108
108. Howard B. Abrams, "The Historic Foundation of American Copyright
Law: Exploding the Myth of Common Law Copyright," Wayne Law
Review 29 (1983): 1152.
377
Astonishingly to modern lawyers, one of the greatest judges in English
history, Lord Mansfield, agreed with the booksellers. Whatever
protection the Statute of Anne gave booksellers, it did not, he held,
extinguish any common law right. The question was whether the common
law would protect the author against subsequent "pirates." Mansfield's
answer was yes: The common law would bar Taylor from reprinting
Thomson's poem without Millar's permission. That common law rule thus
effectively gave the booksellers a perpetual right to control the
publication of any book assigned to them.
378
Considered as a matter of abstract justice - reasoning as if justice
were just a matter of logical deduction from first principles -
Mansfield's conclusion might make some sense. But what it ignored was
the larger issue that Parliament had struggled with in 1710: How best
to limit the monopoly power of publishers? Parliament's strategy was to
offer a term for existing works that was long enough to buy peace in
1710, but short enough to assure that culture would pass into
competition within a reasonable period of time. Within twenty-one
years, Parliament believed, Britain would mature from the controlled
culture that the Crown coveted to the free culture that we inherited.
379
The fight to defend the limits of the Statute of Anne was not to end
there, however, and it is here that Donaldson enters the mix.
380
Millar died soon after his victory, so his case was not appealed. His
estate sold Thomson's poems to a syndicate of printers that included
Thomas Beckett. 109 Donaldson then released an unauthorized
edition of Thomson's works. Beckett, on the strength of the decision in
Millar , got an injunction against Donaldson. Donaldson appealed
the case to the House of Lords, which functioned much like our own
Supreme Court. In February of 1774, that body had the chance to
interpret the meaning of Parliament's limits from sixty years before.
109. Ibid., 1156.
381
As few legal cases ever do, Donaldson v. Beckett drew an
enormous amount of attention throughout Britain. Donaldson's lawyers
argued that whatever rights may have existed under the common law, the
Statute of Anne terminated those rights. After passage of the Statute
of Anne, the only legal protection for an exclusive right to control
publication came from that statute. Thus, they argued, after the term
specified in the Statute of Anne expired, works that had been protected
by the statute were no longer protected.
382
The House of Lords was an odd institution. Legal questions were
presented to the House and voted upon first by the "law lords," members
of special legal distinction who functioned much like the Justices in
our Supreme Court. Then, after the law lords voted, the House of Lords
generally voted.
383
The reports about the law lords' votes are mixed. On some counts, it
looks as if perpetual copyright prevailed. But there is no ambiguity
about how the House of Lords voted as whole. By a two-to-one majority
(22 to 11) they voted to reject the idea of perpetual copyrights.
Whatever one's understanding of the common law, now a copyright was
fixed for a limited time, after which the work protected by copyright
passed into the public domain.
384
"The public domain." Before the case of Donaldson v. Beckett ,
there was no clear idea of a public domain in England. Before 1774,
there was a strong argument that common law copyrights were perpetual.
After 1774, the public domain was born. For the first time in Anglo-
American history, the legal control over creative works expired, and
the greatest works in English history - including those of Shakespeare,
Bacon, Milton, Johnson, and Bunyan - were free of legal restraint.
385
It is hard for us to imagine, but this decision by the House of Lords
fueled an extraordinarily popular and political reaction. In Scotland,
where most of the "pirate publishers" did their work, people celebrated
the decision in the streets. As the Edinburgh Advertiser
reported, "No private cause has so much engrossed the attention of the
public, and none has been tried before the House of Lords in the
decision of which so many individuals were interested." "Great
rejoicing in Edinburgh upon victory over literary property: bonfires
and illuminations."110
110. Rose, 97.
386
In London, however, at least among publishers, the reaction was equally
strong in the opposite direction. The Morning Chronicle
reported:
387
By the above decision ... near 200,000 pounds worth of what was
honestly purchased at public sale, and which was yesterday thought
property is now reduced to nothing. The Booksellers of London and
Westminster, many of whom sold estates and houses to purchase
Copy-right, are in a manner ruined, and those who after many years
industry thought they had acquired a competency to provide for their
families now find themselves without a shilling to devise to their
successors."111
111. Ibid.
388
"Ruined" is a bit of an exaggeration. But it is not an exaggeration to
say that the change was profound. The decision of the House of Lords
meant that the booksellers could no longer control how culture in
England would grow and develop. Culture in England was thereafter
free . Not in the sense that copyrights would not be respected,
for of course, for a limited time after a work was published, the
bookseller had an exclusive right to control the publication of that
book. And not in the sense that books could be stolen, for even after a
copyright expired, you still had to buy the book from someone. But
free in the sense that the culture and its growth would no
longer be controlled by a small group of publishers. As every free
market does, this free market of free culture would grow as the
consumers and producers chose. English culture would develop as the
many English readers chose to let it develop - chose in the books they
bought and wrote; chose in the memes they repeated and endorsed. Chose
in a competitive context , not a context in which the choices
about what culture is available to people and how they get access to it
are made by the few despite the wishes of the many.
389
At least, this was the rule in a world where the Parliament is
anti-monopoly, resistant to the protectionist pleas of publishers. In a
world where the Parliament is more pliant, free culture would be less
protected.
390
391
Jon Else is a filmmaker. He is best known for his documentaries
and has been very successful in spreading his art. He is also a
teacher, and as a teacher myself, I envy the loyalty and admiration
that his students feel for him. (I met, by accident, two of his
students at a dinner party. He was their god.)
392
Else worked on a documentary that I was involved in. At a break, he
told me a story about the freedom to create with film in America today.
393
In 1990, Else was working on a documentary about Wagner's Ring Cycle.
The focus was stagehands at the San Francisco Opera. Stage- hands are a
particularly funny and colorful element of an opera. During a show,
they hang out below the stage in the grips' lounge and in the lighting
loft. They make a perfect contrast to the art on the stage.
394
During one of the performances, Else was shooting some stage- hands
playing checkers. In one corner of the room was a television set.
Playing on the television set, while the stagehands played checkers and
the opera company played Wagner, was The Simpsons . As Else
judged it, this touch of cartoon helped capture the flavor of what was
special about the scene.
395
Years later, when he finally got funding to complete the film, Else
attempted to clear the rights for those few seconds of The
Simpsons . For of course, those few seconds are copyrighted; and of
course, to use copyrighted material you need the permission of the
copyright owner, unless "fair use" or some other privilege applies.
396
Else called Simpsons creator Matt Groening's office to get
permission. Groening approved the shot. The shot was a
four-and-a-half-second image on a tiny television set in the corner of
the room. How could it hurt? Groening was happy to have it in the film,
but he told Else to contact Gracie Films, the company that produces the
program.
397
Gracie Films was okay with it, too, but they, like Groening, wanted to
be careful. So they told Else to contact Fox, Gracie's parent company.
Else called Fox and told them about the clip in the corner of the one
room shot of the film. Matt Groening had already given permission, Else
said. He was just confirming the permission with Fox.
398
Then, as Else told me, "two things happened. First we discovered ...
that Matt Groening doesn't own his own creation - or at least that
someone [at Fox] believes he doesn't own his own creation." And second,
Fox "wanted ten thousand dollars as a licensing fee for us to use this
four-point-five seconds of ... entirely unsolicited Simpsons
which was in the corner of the shot."
399
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
explained to her, "There must be some mistake here. ... We're asking
for your educational rate on this." That was the educational rate,
Herrera told Else. A day or so later, Else called again to confirm what
he had been told.
400
"I wanted to make sure I had my facts straight," he told me. "Yes, you
have your facts straight," she said. It would cost $10,000 to use the
clip of The Simpsons in the corner of a shot in a documentary
film about Wagner's Ring Cycle. And then, astonishingly, Herrera told
Else, "And if you quote me, I'll turn you over to our attorneys." As an
assistant to Herrera told Else later on, "They don't give a shit. They
just want the money."
401
Else didn't have the money to buy the right to replay what was playing
on the television backstage at the San Francisco Opera.To reproduce
this reality was beyond the documentary filmmaker's budget. At the very
last minute before the film was to be released, Else digitally replaced
the shot with a clip from another film that he had worked on, The
Day After Trinity , from ten years before.
402
There's no doubt that someone, whether Matt Groening or Fox,
owns the copyright to The Simpsons . That copyright is their
property. To use that copyrighted material thus sometimes requires the
permission of the copyright owner. If the use that Else wanted to make
of the Simpsons copyright were one of the uses restricted by the
law, then he would need to get the permission of the copyright owner
before he could use the work in that way. And in a free market, it is
the owner of the copyright who gets to set the price for any use that
the law says the owner gets to control.
403
For example, "public performance" is a use of The Simpsons that
the copyright owner gets to control. If you take a selection of
favorite episodes, rent a movie theater, and charge for tickets to come
see "My Favorite Simpsons ," then you need to get permission from
the copyright owner. And the copyright owner (rightly, in my view) can
charge whatever she wants - $10 or $1,000,000. That's her right, as set
by the law.
404
But when lawyers hear this story about Jon Else and Fox, their first
thought is "fair use."112 Else's use of just 4.5 seconds of an
indirect shot of a Simpsons episode is clearly a fair use of
The Simpsons - and fair use does not require the permission of
anyone.
112. For an excellent argument that such use is "fair use," but that
lawyers don't permit recognition that it is "fair use," see Richard A.
Posner with William F. Patry, "Fair Use and Statutory Reform in the
Wake of Eldred " (draft on file with author), University of
Chicago Law School, 5 August 2003.
405
So I asked Else why he didn't just rely upon "fair use." Here's his
reply:
406
The Simpsons fiasco was for me a great lesson in the gulf
between what lawyers find irrelevant in some abstract sense, and what
is crushingly relevant in practice to those of us actually trying to
make and broadcast documentaries. I never had any doubt that it was
"clearly fair use" in an absolute legal sense. But I couldn't rely on
the concept in any concrete way. Here's why:
407
1. Before our films can be broadcast, the network requires that we buy
Errors and Omissions insurance. The carriers require a detailed "visual
cue sheet" listing the source and licensing status of each shot in the
film. They take a dim view of "fair use," and a claim of "fair use" can
grind the application process to a halt.
408
2. I probably never should have asked Matt Groening in the first place.
But I knew (at least from folklore) that Fox had a history of tracking
down and stopping unlicensed Simpsons usage, just as George
Lucas had a very high profile litigating Star Wars usage. So I
decided to play by the book, thinking that we would be granted free or
cheap license to four seconds of Simpsons . As a documentary
producer working to exhaustion on a shoestring, the last thing I wanted
was to risk legal trouble, even nuisance legal trouble, and even to
defend a principle.
409
3. I did, in fact, speak with one of your colleagues at Stanford Law
School ... who confirmed that it was fair use. He also confirmed that
Fox would "depose and litigate you to within an inch of your life,"
regardless of the merits of my claim. He made clear that it would boil
down to who had the bigger legal department and the deeper pockets, me
or them.
410
4. The question of fair use usually comes up at the end of the project,
when we are up against a release deadline and out of money."
411
In theory, fair use means you need no permission. The theory therefore
supports free culture and insulates against a permission culture. But
in practice, fair use functions very differently. The fuzzy lines of
the law, tied to the extraordinary liability if lines are crossed,
means that the effective fair use for many types of creators is slight.
The law has the right aim; practice has defeated the aim.
412
This practice shows just how far the law has come from its
eighteenth-century roots. The law was born as a shield to protect
publishers' profits against the unfair competition of a pirate. It has
matured into a sword that interferes with any use, transformative or
not.
413
414
In 1993, Alex Alben was a lawyer working at Starwave, Inc.
Starwave was an innovative company founded by Microsoft cofounder Paul
Allen to develop digital entertainment. Long before the Internet became
popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
415
Alben had a special interest in new technology. He was intrigued by the
emerging market for CD-ROM technology - not to distribute film, but to
do things with film that otherwise would be very difficult. In 1993, he
launched an initiative to develop a product to build retrospectives on
the work of particular actors. The first actor chosen was Clint
Eastwood. The idea was to showcase all of the work of Eastwood, with
clips from his films and interviews with figures important to his
career.
416
At that time, Eastwood had made more than fifty films, as an actor and
as a director. Alben began with a series of interviews with Eastwood,
asking him about his career. Because Starwave produced those
interviews, it was free to include them on the CD.
417
That alone would not have made a very interesting product, so Starwave
wanted to add content from the movies in Eastwood's career: posters,
scripts, and other material relating to the films Eastwood made. Most
of his career was spent at Warner Brothers, and so it was relatively
easy to get permission for that content.
418
Then Alben and his team decided to include actual film clips. "Our goal
was that we were going to have a clip from every one of East-wood's
films," Alben told me. It was here that the problem arose. "No one had
ever really done this before," Alben explained. "No one had ever tried
to do this in the context of an artistic look at an actor's career."
419
Alben brought the idea to Michael Slade, the CEO of Starwave. Slade
asked, "Well, what will it take?"
420
Alben replied, "Well, we're going to have to clear rights from everyone
who appears in these films, and the music and everything else that we
want to use in these film clips." Slade said, "Great! Go for
it."113
113. Technically, the rights that Alben had to clear were mainly those
of publicity"rights an artist has to control the commercial
exploitation of his image. But these rights, too, burden "Rip, Mix,
Burn" creativity, as this chapter evinces.
421
The problem was that neither Alben nor Slade had any idea what clearing
those rights would mean. Every actor in each of the films could have a
claim to royalties for the reuse of that film. But CD-ROMs had not been
specified in the contracts for the actors, so there was no clear way to
know just what Starwave was to do.
422
I asked Alben how he dealt with the problem. With an obvious pride in
his resourcefulness that obscured the obvious bizarreness of his tale,
Alben recounted just what they did:
423
So we very mechanically went about looking up the film clips. We made
some artistic decisions about what film clips to include - of course we
were going to use the "Make my day" clip from Dirty Harry . But
you then need to get the guy on the ground who's wiggling under the gun
and you need to get his permission. And then you have to decide what
you are going to pay him.
424
We decided that it would be fair if we offered them the day-player rate
for the right to reuse that performance. We're talking about a clip of
less than a minute, but to reuse that performance in the CD-ROM the
rate at the time was about $600.
425
So we had to identify the people - some of them were hard to identify
because in Eastwood movies you can't tell who's the guy crashing
through the glass - is it the actor or is it the stuntman? And then we
just, we put together a team, my assistant and some others, and we just
started calling people."
426
Some actors were glad to help - Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared. Others
were dumbfounded at their good fortune. Alben would ask, "Hey, can I
pay you $600 or maybe if you were in two films, you know, $1,200?" And
they would say, "Are you for real? Hey, I'd love to get $1,200." And
some of course were a bit difficult (estranged ex-wives, in
particular). But eventually, Alben and his team had cleared the rights
to this retrospective CD-ROM on Clint Eastwood's career.
427
It was one year later - " and even then we weren't sure whether
we were totally in the clear."
428
Alben is proud of his work. The project was the first of its kind and
the only time he knew of that a team had undertaken such a massive
project for the purpose of releasing a retrospective.
429
Everyone thought it would be too hard. Everyone just threw up their
hands and said, "Oh, my gosh, a film, it's so many copyrights, there's
the music, there's the screenplay, there's the director, there's the
actors." But we just broke it down. We just put it into its constituent
parts and said, "Okay, there's this many actors, this many directors,
... this many musicians," and we just went at it very systematically
and cleared the rights."
430
And no doubt, the product itself was exceptionally good. Eastwood loved
it, and it sold very well.
431
But I pressed Alben about how weird it seems that it would have to take
a year's work simply to clear rights. No doubt Alben had done this
efficiently, but as Peter Drucker has famously quipped, "There is
nothing so useless as doing efficiently that which should not be done
at all."114 Did it make sense, I asked Alben, that this is the
way a new work has to be made?
114. U.S. Department of Commerce Office of Acquisition Management,
Seven Steps to Performance-Based Services Acquisition, available
at link #22.
432
For, as he acknowledged, "very few ... have the time and resources, and
the will to do this," and thus, very few such works would ever be made.
Does it make sense, I asked him, from the standpoint of what anybody
really thought they were ever giving rights for originally, that you
would have to go clear rights for these kinds of clips?
433
I don't think so. When an actor renders a performance in a movie, he or
she gets paid very well. ... And then when 30 seconds of that
performance is used in a new product that is a retrospective of
somebody's career, I don't think that that person ... should be
compensated for that."
434
Or at least, is this how the artist should be compensated? Would
it make sense, I asked, for there to be some kind of statutory license
that someone could pay and be free to make derivative use of clips like
this? Did it really make sense that a follow-on creator would have to
track down every artist, actor, director, musician, and get explicit
permission from each? Wouldn't a lot more be created if the legal part
of the creative process could be made to be more clean?
435
Absolutely. I think that if there were some fair-licensing mechanism -
where you weren't subject to hold-ups and you weren't subject to
estranged former spouses - you'd see a lot more of this work, because
it wouldn't be so daunting to try to put together a retrospective of
someone's career and meaningfully illustrate it with lots of media from
that person's career. You'd build in a cost as the producer of one of
these things. You'd build in a cost of paying X dollars to the talent
that performed. But it would be a known cost. That's the thing that
trips everybody up and makes this kind of product hard to get off the
ground. If you knew I have a hundred minutes of film in this product
and it's going to cost me X, then you build your budget around it, and
you can get investments and everything else that you need to produce
it. But if you say, "Oh, I want a hundred minutes of something and I
have no idea what it's going to cost me, and a certain number of people
are going to hold me up for money," then it becomes difficult to put
one of these things together."
436
Alben worked for a big company. His company was backed by some of the
richest investors in the world. He therefore had authority and access
that the average Web designer would not have. So if it took him a year,
how long would it take someone else? And how much creativity is never
made just because the costs of clearing the rights are so high?
437
These costs are the burdens of a kind of regulation. Put on a
Republican hat for a moment, and get angry for a bit. The government
defines the scope of these rights, and the scope defined determines how
much it's going to cost to negotiate them. (Remember the idea that land
runs to the heavens, and imagine the pilot purchasing fly- through
rights as he negotiates to fly from Los Angeles to San Francisco.)
These rights might well have once made sense; but as circumstances
change, they make no sense at all. Or at least, a well-trained,
regulation-minimizing Republican should look at the rights and ask,
"Does this still make sense?"
438
I've seen the flash of recognition when people get this point, but only
a few times. The first was at a conference of federal judges in
California. The judges were gathered to discuss the emerging topic of
cyber-law. I was asked to be on the panel. Harvey Saferstein, a
well-respected lawyer from an L.A. firm, introduced the panel with a
video that he and a friend, Robert Fairbank, had produced.
439
The video was a brilliant collage of film from every period in the
twentieth century, all framed around the idea of a 60 Minutes
episode. The execution was perfect, down to the sixty-minute stopwatch.
The judges loved every minute of it.
440
When the lights came up, I looked over to my copanelist, David Nimmer,
perhaps the leading copyright scholar and practitioner in the nation.
He had an astonished look on his face, as he peered across the room of
over 250 well- entertained judges. Taking an ominous tone, he began his
talk with a question: "Do you know how many federal laws were just
violated in this room?"
441
For of course, the two brilliantly talented creators who made this film
hadn't done what Alben did. They hadn't spent a year clearing the
rights to these clips; technically, what they had done violated the
law. Of course, it wasn't as if they or anyone were going to be
prosecuted for this violation (the presence of 250 judges and a gaggle
of federal marshals notwithstanding). But Nimmer was making an
important point: A year before anyone would have heard of the word
Napster, and two years before another member of our panel, David Boies,
would defend Napster before the Ninth Circuit Court of Appeals, Nimmer
was trying to get the judges to see that the law would not be friendly
to the capacities that this technology would enable. Technology means
you can now do amazing things easily; but you couldn't easily do them
legally.
442
We live in a "cut and paste" culture enabled by technology.
Anyone building a presentation knows the extraordinary freedom that the
cut and paste architecture of the Internet created - in a second you
can find just about any image you want; in another second, you can have
it planted in your presentation.
443
But presentations are just a tiny beginning. Using the Internet and its
archives, musicians are able to string together mixes of sound never
before imagined; filmmakers are able to build movies out of clips on
computers around the world. An extraordinary site in Sweden takes
images of politicians and blends them with music to create biting
political commentary. A site called Camp Chaos has produced some of the
most biting criticism of the record industry that there is through the
mixing of Flash! and music.
444
All of these creations are technically illegal. Even if the creators
wanted to be "legal," the cost of complying with the law is impossibly
high. Therefore, for the law-abiding sorts, a wealth of creativity is
never made. And for that part that is made, if it doesn't follow the
clearance rules, it doesn't get released.
445
To some, these stories suggest a solution: Let's alter the mix of
rights so that people are free to build upon our culture. Free to add
or mix as they see fit. We could even make this change without
necessarily requiring that the "free" use be free as in "free beer."
Instead, the system could simply make it easy for follow-on creators to
compensate artists without requiring an army of lawyers to come along:
a rule, for example, that says "the royalty owed the copyright owner of
an unregistered work for the derivative reuse of his work will be a
flat 1 percent of net revenues, to be held in escrow for the copyright
owner." Under this rule, the copyright owner could benefit from some
royalty, but he would not have the benefit of a full property right
(meaning the right to name his own price) unless he registers the work.
446
Who could possibly object to this? And what reason would there be for
objecting? We're talking about work that is not now being made; which
if made, under this plan, would produce new income for artists. What
reason would anyone have to oppose it?
447
In February 2003, DreamWorks studios announced an agreement with
Mike Myers, the comic genius of Saturday Night Live and Austin
Powers. According to the announcement, Myers and DreamWorks would work
together to form a "unique filmmaking pact." Under the agreement,
DreamWorks "will acquire the rights to existing motion picture hits and
classics, write new storylines and - with the use of state- of-the-art
digital technology - insert Myers and other actors into the film,
thereby creating an entirely new piece of entertainment."
448
The announcement called this "film sampling." As Myers explained, "Film
Sampling is an exciting way to put an original spin on existing films
and allow audiences to see old movies in a new light. Rap artists have
been doing this for years with music and now we are able to take that
same concept and apply it to film." Steven Spielberg is quoted as
saying, "If anyone can create a way to bring old films to new
audiences, it is Mike."
449
Spielberg is right. Film sampling by Myers will be brilliant. But if
you don't think about it, you might miss the truly astonishing point
about this announcement. As the vast majority of our film heritage
remains under copyright, the real meaning of the DreamWorks
announcement is just this: It is Mike Myers and only Mike Myers who is
free to sample. Any general freedom to build upon the film archive of
our culture, a freedom in other contexts presumed for us all, is now a
privilege reserved for the funny and famous - and presumably rich.
450
This privilege becomes reserved for two sorts of reasons. The first
continues the story of the last chapter: the vagueness of "fair use."
Much of "sampling" should be considered "fair use." But few would rely
upon so weak a doctrine to create. That leads to the second reason that
the privilege is reserved for the few: The costs of negotiating the
legal rights for the creative reuse of content are astronomically high.
These costs mirror the costs with fair use: You either pay a lawyer to
defend your fair use rights or pay a lawyer to track down permissions
so you don't have to rely upon fair use rights. Either way, the
creative process is a process of paying lawyers - again a privilege, or
perhaps a curse, reserved for the few.
451
452
In April 1996, millions of "bots" - computer codes designed to
"spider," or automatically search the Internet and copy content - began
running across the Net. Page by page, these bots copied Internet-based
information onto a small set of computers located in a basement in San
Francisco's Presidio. Once the bots finished the whole of the Internet,
they started again. Over and over again, once every two months, these
bits of code took copies of the Internet and stored them.
453
By October 2001, the bots had collected more than five years of copies.
And at a small announcement in Berkeley, California, the archive that
these copies created, the Internet Archive, was opened to the world.
Using a technology called "the Way Back Machine," you could enter a Web
page, and see all of its copies going back to 1996, as well as when
those pages changed.
454
This is the thing about the Internet that Orwell would have
appreciated. In the dystopia described in 1984 , old newspapers
were constantly updated to assure that the current view of the world,
approved of by the government, was not contradicted by previous news
reports. Thousands of workers constantly reedited the past, meaning
there was no way ever to know whether the story you were reading today
was the story that was printed on the date published on the paper.
455
It's the same with the Internet. If you go to a Web page today, there's
no way for you to know whether the content you are reading is the same
as the content you read before. The page may seem the same, but the
content could easily be different. The Internet is Orwell's library -
constantly updated, without any reliable memory.
456
Until the Way Back Machine, at least. With the Way Back Machine, and
the Internet Archive underlying it, you can see what the Internet was.
You have the power to see what you remember. More importantly, perhaps,
you also have the power to find what you don't remember and what others
might prefer you forget.115
115. The temptations remain, however. Brewster Kahle reports that the
White House changes its own press releases without notice. A May 13,
2003, press release stated, "Combat Operations in Iraq Have Ended."
That was later changed, without notice, to "Major Combat Operations in
Iraq Have Ended." E-mail from Brewster Kahle, 1 December 2003.
457
We take it for granted that we can go back to see what we
remember reading. Think about newspapers. If you wanted to study the
reaction of your hometown newspaper to the race riots in Watts in 1965,
or to Bull Connor's water cannon in 1963, you could go to your public
library and look at the newspapers. Those papers probably exist on
microfiche. If you're lucky, they exist in paper, too. Either way, you
are free, using a library, to go back and remember - not just what it
is convenient to remember, but remember something close to the truth.
458
It is said that those who fail to remember history are doomed to repeat
it. That's not quite correct. We all forget history. The key is
whether we have a way to go back to rediscover what we forget. More
directly, the key is whether an objective past can keep us honest.
Libraries help do that, by collecting content and keeping it, for
schoolchildren, for researchers, for grandma. A free society presumes
this knowledge.
459
The Internet was an exception to this presumption. Until the Internet
Archive, there was no way to go back. The Internet was the
quintessentially transitory medium. And yet, as it becomes more
important in forming and reforming society, it becomes more and more
important to maintain in some historical form. It's just bizarre to
think that we have scads of archives of newspapers from tiny towns
around the world, yet there is but one copy of the Internet - the one
kept by the Internet Archive.
460
Brewster Kahle is the founder of the Internet Archive. He was a very
successful Internet entrepreneur after he was a successful computer
researcher. In the 1990s, Kahle decided he had had enough business
success. It was time to become a different kind of success. So he
launched a series of projects designed to archive human knowledge. The
Internet Archive was just the first of the projects of this Andrew
Carnegie of the Internet. By December of 2002, the archive had over 10
billion pages, and it was growing at about a billion pages a month.
461
The Way Back Machine is the largest archive of human knowledge in human
history. At the end of 2002, it held "two hundred and thirty terabytes
of material" - and was "ten times larger than the Library of Congress."
And this was just the first of the archives that Kahle set out to
build. In addition to the Internet Archive, Kahle has been constructing
the Television Archive. Television, it turns out, is even more
ephemeral than the Internet. While much of twentieth- century culture
was constructed through television, only a tiny proportion of that
culture is available for anyone to see today. Three hours of news are
recorded each evening by Vanderbilt University - thanks to a specific
exemption in the copyright law.That content is indexed, and is
available to scholars for a very low fee. "But other than that,
[television] is almost unavailable," Kahle told me. "If you were
Barbara Walters you could get access to [the archives], but if you are
just a graduate student?" As Kahle put it,
462
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
interacting with a fictional television character? If you were a
graduate student wanting to study that, and you wanted to get those
original back and forth exchanges between the two, the 60
Minutes episode that came out after it ... it would be almost
impossible. ... Those materials are almost unfindable. ..."
463
Why is that? Why is it that the part of our culture that is recorded in
newspapers remains perpetually accessible, while the part that is
recorded on videotape is not? How is it that we've created a world
where researchers trying to understand the effect of media on
nineteenth-century America will have an easier time than researchers
trying to understand the effect of media on twentieth-century America?
464
In part, this is because of the law. Early in American copyright law,
copyright owners were required to deposit copies of their work in
libraries. These copies were intended both to facilitate the spread of
knowledge and to assure that a copy of the work would be around once
the copyright expired, so that others might access and copy the work.
465
These rules applied to film as well. But in 1915, the Library of
Congress made an exception for film. Film could be copyrighted so long
as such deposits were made. But the filmmaker was then allowed to
borrow back the deposits - for an unlimited time at no cost. In 1915
alone, there were more than 5,475 films deposited and "borrowed back."
Thus, when the copyrights to films expire, there is no copy held by any
library. The copy exists - if it exists at all - in the library archive
of the film company.116
116. Doug Herrick, "Toward a National Film Collection: Motion Pictures
at the Library of Congress," Film Library Quarterly 13 nos. 2-3
(1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film
Preservation in the United States (Jefferson, N.C.: McFarland &
Co., 1992), 36.
466
The same is generally true about television. Television broadcasts were
originally not copyrighted - there was no way to capture the
broadcasts, so there was no fear of "theft." But as technology enabled
capturing, broadcasters relied increasingly upon the law. The law
required they make a copy of each broadcast for the work to be
"copy-righted." But those copies were simply kept by the broadcasters.
No library had any right to them; the government didn't demand them.
The content of this part of American culture is practically invisible
to anyone who would look.
467
Kahle was eager to correct this. Before September 11, 2001, he and his
allies had started capturing television. They selected twenty stations
from around the world and hit the Record button. After September 11,
Kahle, working with dozens of others, selected twenty stations from
around the world and, beginning October 11, 2001, made their coverage
during the week of September 11 available free on- line. Anyone could
see how news reports from around the world covered the events of that
day.
468
Kahle had the same idea with film. Working with Rick Prelinger, whose
archive of film includes close to 45,000 "ephemeral films" (meaning
films other than Hollywood movies, films that were never copyrighted),
Kahle established the Movie Archive. Prelinger let Kahle digitize 1,300
films in this archive and post those films on the Internet to be
downloaded for free. Prelinger's is a for- profit company. It sells
copies of these films as stock footage. What he has discovered is that
after he made a significant chunk available for free, his stock footage
sales went up dramatically. People could easily find the material they
wanted to use. Some downloaded that material and made films on their
own. Others purchased copies to enable other films to be made. Either
way, the archive enabled access to this important part of our culture.
Want to see a copy of the "Duck and Cover" film that instructed
children how to save themselves in the middle of nuclear attack? Go to
archive.org, and you can download the film in a few minutes - for free.
469
Here again, Kahle is providing access to a part of our culture that we
otherwise could not get easily, if at all. It is yet another part of
what defines the twentieth century that we have lost to history. The
law doesn't require these copies to be kept by anyone, or to be
deposited in an archive by anyone. Therefore, there is no simple way to
find them.
470
The key here is access, not price. Kahle wants to enable free access to
this content, but he also wants to enable others to sell access to it.
His aim is to ensure competition in access to this important part of
our culture. Not during the commercial life of a bit of creative
property, but during a second life that all creative property has - a
noncommercial life.
471
For here is an idea that we should more clearly recognize. Every bit of
creative property goes through different "lives." In its first life, if
the creator is lucky, the content is sold. In such cases the commercial
market is successful for the creator. The vast majority of creative
property doesn't enjoy such success, but some clearly does. For that
content, commercial life is extremely important. Without this
commercial market, there would be, many argue, much less creativity.
472
After the commercial life of creative property has ended, our tradition
has always supported a second life as well. A newspaper delivers the
news every day to the doorsteps of America. The very next day, it is
used to wrap fish or to fill boxes with fragile gifts or to build an
archive of knowledge about our history. In this second life, the
content can continue to inform even if that information is no longer
sold.
473
The same has always been true about books. A book goes out of print
very quickly (the average today is after about a year117 ).
After it is out of print, it can be sold in used book stores without
the copyright owner getting anything and stored in libraries, where
many get to read the book, also for free. Used book stores and
libraries are thus the second life of a book. That second life is
extremely important to the spread and stability of culture.
117. Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
Bar Owner Starts a New Chapter by Adopting Business," Chicago
Tribune, 5 September 1997, at Metro Lake 1L. Of books published
between 1927 and 1946, only 2.2 percent were in print in 2002. R.
Anthony Reese, "The First Sale Doctrine in the Era of Digital
Networks," Boston College Law Review 44 (2003): 593 n. 51.
474
Yet increasingly, any assumption about a stable second life for
creative property does not hold true with the most important components
of popular culture in the twentieth and twenty-first centuries. For
these - television, movies, music, radio, the Internet - there is no
guarantee of a second life. For these sorts of culture, it is as if
we've replaced libraries with Barnes & Noble superstores. With this
culture, what's accessible is nothing but what a certain limited market
demands. Beyond that, culture disappears.
475
For most of the twentieth century, it was economics that made
this so. It would have been insanely expensive to collect and make
accessible all television and film and music: The cost of analog copies
is extraordinarily high. So even though the law in principle would have
restricted the ability of a Brewster Kahle to copy culture generally,
the real restriction was economics. The market made it impossibly
difficult to do anything about this ephemeral culture; the law had
little practical effect.
476
Perhaps the single most important feature of the digital revolution is
that for the first time since the Library of Alexandria, it is feasible
to imagine constructing archives that hold all culture produced or
distributed publicly. Technology makes it possible to imagine an
archive of all books published, and increasingly makes it possible to
imagine an archive of all moving images and sound.
477
The scale of this potential archive is something we've never imagined
before. The Brewster Kahles of our history have dreamed about it; but
we are for the first time at a point where that dream is possible. As
Kahle describes,
478
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of movies,
... and about one to two million movies [distributed] during the
twentieth century. There are about twenty-six million different titles
of books. All of these would fit on computers that would fit in this
room and be able to be afforded by a small company. So we're at a
turning point in our history. Universal access is the goal. And the
opportunity of leading a different life, based on this, is ...
thrilling. It could be one of the things humankind would be most proud
of. Up there with the Library of Alexandria, putting a man on the moon,
and the invention of the printing press."
479
Kahle is not the only librarian. The Internet Archive is not the only
archive. But Kahle and the Internet Archive suggest what the future of
libraries or archives could be. When the commercial life of
creative property ends, I don't know. But it does. And whenever it
does, Kahle and his archive hint at a world where this knowledge, and
culture, remains perpetually available. Some will draw upon it to
understand it; some to criticize it. Some will use it, as Walt Disney
did, to re-create the past for the future. These technologies promise
something that had become unimaginable for much of our past - a future
for our past. The technology of digital arts could make the
dream of the Library of Alexandria real again.
480
Technologists have thus removed the economic costs of building such an
archive. But lawyers' costs remain. For as much as we might like to
call these "archives," as warm as the idea of a "library" might seem,
the "content" that is collected in these digital spaces is also
some-one's "property." And the law of property restricts the freedoms
that Kahle and others would exercise.
481
482
Jack Valenti has been the president of the Motion Picture
Association of America since 1966. He first came to Washington, D.C.,
with Lyndon Johnson's administration - literally. The famous picture of
Johnson's swearing-in on Air Force One after the assassination of
President Kennedy has Valenti in the background. In his almost forty
years of running the MPAA, Valenti has established himself as perhaps
the most prominent and effective lobbyist in Washington.
483
The MPAA is the American branch of the international Motion Picture
Association. It was formed in 1922 as a trade association whose goal
was to defend American movies against increasing domestic criticism.
The organization now represents not only filmmakers but producers and
distributors of entertainment for television, video, and cable. Its
board is made up of the chairmen and presidents of the seven major
producers and distributors of motion picture and television programs in
the United States: Walt Disney, Sony Pictures Entertainment, MGM,
Paramount Pictures, Twentieth Century Fox, Universal Studios, and
Warner Brothers.
484
Valenti is only the third president of the MPAA. No president before
him has had as much influence over that organization, or over
Washington. As a Texan, Valenti has mastered the single most important
political skill of a Southerner - the ability to appear simple and slow
while hiding a lightning-fast intellect. To this day, Valenti plays the
simple, humble man. But this Harvard MBA, and author of four books, who
finished high school at the age of fifteen and flew more than fifty
combat missions in World War II, is no Mr. Smith. When Valenti went to
Washington, he mastered the city in a quintessentially Washingtonian
way.
485
In defending artistic liberty and the freedom of speech that our
culture depends upon, the MPAA has done important good. In crafting the
MPAA rating system, it has probably avoided a great deal of
speech-regulating harm. But there is an aspect to the organization's
mission that is both the most radical and the most important. This is
the organization's effort, epitomized in Valenti's every act, to
redefine the meaning of "creative property."
486
In 1982, Valenti's testimony to Congress captured the strategy
perfectly:
487
No matter the lengthy arguments made, no matter the charges and the
counter-charges, no matter the tumult and the shouting, reasonable men
and women will keep returning to the fundamental issue, the central
theme which animates this entire debate: Creative property owners
must be accorded the same rights and protection resident in all other
property owners in the nation . That is the issue. That is the
question. And that is the rostrum on which this entire hearing and the
debates to follow must rest."118
118. Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
Subcommittee on Courts, Civil Liberties, and the Administration of
Justice of the Committee on the Judiciary of the House of
Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
Valenti).
488
The strategy of this rhetoric, like the strategy of most of Valenti's
rhetoric, is brilliant and simple and brilliant because simple. The
"central theme" to which "reasonable men and women" will return is
this: "Creative property owners must be accorded the same rights and
protections resident in all other property owners in the nation." There
are no second-class citizens, Valenti might have continued. There
should be no second-class property owners.
489
This claim has an obvious and powerful intuitive pull. It is stated
with such clarity as to make the idea as obvious as the notion that we
use elections to pick presidents. But in fact, there is no more extreme
a claim made by anyone who is serious in this debate than this
claim of Valenti's. Jack Valenti, however sweet and however brilliant,
is perhaps the nation's foremost extremist when it comes to the nature
and scope of "creative property." His views have no reasonable
connection to our actual legal tradition, even if the subtle pull of
his Texan charm has slowly redefined that tradition, at least in
Washington.
490
While "creative property" is certainly "property" in a nerdy and
precise sense that lawyers are trained to understand,119 it
has never been the case, nor should it be, that "creative property
owners" have been "ac- corded the same rights and protection resident
in all other property owners." Indeed, if creative property owners were
given the same rights as all other property owners, that would effect a
radical, and radically undesirable, change in our tradition.
119. Lawyers speak of "property" not as an absolute thing, but as a
bundle of rights that are sometimes associated with a particular
object. Thus, my "property right" to my car gives me the right to
exclusive use, but not the right to drive at 150 miles an hour. For the
best effort to connect the ordinary meaning of "property" to "lawyer
talk," see Bruce Ackerman, Private Property and the Constitution
(New Haven: Yale University Press, 1977), 26-27.
491
Valenti knows this. But he speaks for an industry that cares squat for
our tradition and the values it represents. He speaks for an industry
that is instead fighting to restore the tradition that the British
overturned in 1710. In the world that Valenti's changes would create, a
powerful few would exercise powerful control over how our creative
culture would develop.
492
I have two purposes in this chapter. The first is to convince you that,
historically, Valenti's claim is absolutely wrong. The second is to
convince you that it would be terribly wrong for us to reject our
history. We have always treated rights in creative property differently
from the rights resident in all other property owners. They have never
been the same. And they should never be the same, because, however
counterintuitive this may seem, to make them the same would be to
fundamentally weaken the opportunity for new creators to create.
Creativity depends upon the owners of creativity having less than
perfect control.
493
Organizations such as the MPAA, whose board includes the most powerful
of the old guard, have little interest, their rhetoric notwithstanding,
in assuring that the new can displace them. No organization does. No
person does. (Ask me about tenure, for example.) But what's good for
the MPAA is not necessarily good for America. A society that defends
the ideals of free culture must preserve precisely the opportunity for
new creativity to threaten the old.
494
To get just a hint that there is something fundamentally wrong
in Valenti's argument, we need look no further than the United States
Constitution itself.
495
The framers of our Constitution loved "property." Indeed, so strongly
did they love property that they built into the Constitution an
important requirement. If the government takes your property - if it
condemns your house, or acquires a slice of land from your farm - it is
required, under the Fifth Amendment's "Takings Clause," to pay you
"just compensation" for that taking. The Constitution thus guarantees
that property is, in a certain sense, sacred. It cannot ever be
taken from the property owner unless the government pays for the
privilege.
496
Yet the very same Constitution speaks very differently about what
Valenti calls "creative property." In the clause granting Congress the
power to create "creative property," the Constitution requires
that after a "limited time," Congress take back the rights that it has
granted and set the "creative property" free to the public domain. Yet
when Congress does this, when the expiration of a copyright term
"takes" your copyright and turns it over to the public domain, Congress
does not have any obligation to pay "just compensation" for this
"taking." Instead, the same Constitution that requires compensation for
your land requires that you lose your "creative property" right without
any compensation at all.
497
The Constitution thus on its face states that these two forms of
property are not to be accorded the same rights. They are plainly to be
treated differently. Valenti is therefore not just asking for a change
in our tradition when he argues that creative-property owners should be
accorded the same rights as every other property-right owner. He is
effectively arguing for a change in our Constitution itself.
498
Arguing for a change in our Constitution is not necessarily wrong.
There was much in our original Constitution that was plainly wrong. The
Constitution of 1789 entrenched slavery; it left senators to be
appointed rather than elected; it made it possible for the electoral
college to produce a tie between the president and his own vice
president (as it did in 1800). The framers were no doubt extraordinary,
but I would be the first to admit that they made big mistakes. We have
since rejected some of those mistakes; no doubt there could be others
that we should reject as well. So my argument is not simply that
because Jefferson did it, we should, too.
499
Instead, my argument is that because Jefferson did it, we should at
least try to understand why . Why did the framers, fanatical
property types that they were, reject the claim that creative property
be given the same rights as all other property? Why did they require
that for creative property there must be a public domain?
500
To answer this question, we need to get some perspective on the history
of these "creative property" rights, and the control that they enabled.
Once we see clearly how differently these rights have been defined, we
will be in a better position to ask the question that should be at the
core of this war: Not whether creative property should be
protected, but how. Not whether we will enforce the rights the
law gives to creative-property owners, but what the particular mix of
rights ought to be. Not whether artists should be paid, but
whether institutions designed to assure that artists get paid need also
control how culture develops.
501
To answer these questions, we need a more general way to talk about how
property is protected. More precisely, we need a more general way than
the narrow language of the law allows. In Code and Other Laws of
Cyberspace , I used a simple model to capture this more general
perspective. For any particular right or regulation, this model asks
how four different modalities of regulation interact to support or
weaken the right or regulation. I represented it with this diagram:
502
503
At the center of this picture is a regulated dot: the individual or
group that is the target of regulation, or the holder of a right. (In
each case throughout, we can describe this either as regulation or as a
right. For simplicity's sake, I will speak only of regulations.) The
ovals represent four ways in which the individual or group might be
regulated - either constrained or, alternatively, enabled. Law is the
most obvious constraint (to lawyers, at least). It constrains by
threatening punishments after the fact if the rules set in advance are
violated. So if, for example, you willfully infringe Madonna's
copyright by copying a song from her latest CD and posting it on the
Web, you can be punished with a $150,000 fine. The fine is an ex post
punishment for violating an ex ante rule. It is imposed by the state.
504
Norms are a different kind of constraint. They, too, punish an
individual for violating a rule. But the punishment of a norm is
imposed by a community, not (or not only) by the state. There may be no
law against spitting, but that doesn't mean you won't be punished if
you spit on the ground while standing in line at a movie. The
punishment might not be harsh, though depending upon the community, it
could easily be more harsh than many of the punishments imposed by the
state. The mark of the difference is not the severity of the rule, but
the source of the enforcement.
505
The market is a third type of constraint. Its constraint is effected
through conditions: You can do X if you pay Y; you'll be paid M if you
do N. These constraints are obviously not independent of law or norms -
it is property law that defines what must be bought if it is to be
taken legally; it is norms that say what is appropriately sold. But
given a set of norms, and a background of property and contract law,
the market imposes a simultaneous constraint upon how an individual or
group might behave.
506
Finally, and for the moment, perhaps, most mysteriously, "architecture"
- the physical world as one finds it - is a constraint on behavior. A
fallen bridge might constrain your ability to get across a river.
Railroad tracks might constrain the ability of a community to integrate
its social life. As with the market, architecture does not effect its
constraint through ex post punishments. Instead, also as with the
market, architecture effects its constraint through simultaneous
conditions. These conditions are imposed not by courts enforcing
contracts, or by police punishing theft, but by nature, by
"architecture." If a 500-pound boulder blocks your way, it is the law
of gravity that enforces this constraint. If a $500 airplane ticket
stands between you and a flight to New York, it is the market that
enforces this constraint.
507
So the first point about these four modalities of regulation is
obvious: They interact. Restrictions imposed by one might be reinforced
by another. Or restrictions imposed by one might be undermined by
another.
508
The second point follows directly: If we want to understand the
effective freedom that anyone has at a given moment to do any
particular thing, we have to consider how these four modalities
interact. Whether or not there are other constraints (there may well
be; my claim is not about comprehensiveness), these four are among the
most significant, and any regulator (whether controlling or freeing)
must consider how these four in particular interact.
509
So, for example, consider the "freedom" to drive a car at a high speed.
That freedom is in part restricted by laws: speed limits that say how
fast you can drive in particular places at particular times. It is in
part restricted by architecture: speed bumps, for example, slow most
rational drivers; governors in buses, as another example, set the
maximum rate at which the driver can drive. The freedom is in part
restricted by the market: Fuel efficiency drops as speed increases,
thus the price of gasoline indirectly constrains speed. And finally,
the norms of a community may or may not constrain the freedom to speed.
Drive at 50 mph by a school in your own neighborhood and you're likely
to be punished by the neighbors. The same norm wouldn't be as effective
in a different town, or at night.
510
The final point about this simple model should also be fairly clear:
While these four modalities are analytically independent, law has a
special role in affecting the three.120 The law, in other
words, sometimes operates to increase or decrease the constraint of a
particular modality. Thus, the law might be used to increase taxes on
gasoline, so as to increase the incentives to drive more slowly. The
law might be used to mandate more speed bumps, so as to increase the
difficulty of driving rapidly. The law might be used to fund ads that
stigmatize reckless driving. Or the law might be used to require that
other laws be more strict - a federal requirement that states decrease
the speed limit, for example" so as to decrease the attractiveness of
fast driving.
120. By describing the way law affects the other three modalities, I
don't mean to suggest that the other three don't affect law. Obviously,
they do. Law's only distinction is that it alone speaks as if it has a
right self-consciously to change the other three. The right of the
other three is more timidly expressed. See Lawrence Lessig, Code:
And Other Laws of Cyberspace (New York: Basic Books, 1999): 90-95;
Lawrence Lessig, "The New Chicago School," Journal of Legal
Studies, June 1998.
511
512
These constraints can thus change, and they can be changed. To
understand the effective protection of liberty or protection of
property at any particular moment, we must track these changes over
time. A restriction imposed by one modality might be erased by another.
A freedom enabled by one modality might be displaced by
another.121
121. Some people object to this way of talking about "liberty." They
object because their focus when considering the constraints that exist
at any particular moment are constraints imposed exclusively by the
government. For instance, if a storm destroys a bridge, these people
think it is meaningless to say that one's liberty has been restrained.
A bridge has washed out, and it's harder to get from one place to
another. To talk about this as a loss of freedom, they say, is to
confuse the stuff of politics with the vagaries of ordinary life. I
don't mean to deny the value in this narrower view, which depends upon
the context of the inquiry. I do, however, mean to argue against any
insistence that this narrower view is the only proper view of liberty.
As I argued in Code, we come from a long tradition of political
thought with a broader focus than the narrow question of what the
government did when. John Stuart Mill defended freedom of speech, for
example, from the tyranny of narrow minds, not from the fear of
government prosecution; John Stuart Mill, On Liberty (Indiana:
Hackett Publishing Co., 1978), 19. John R. Commons famously defended
the economic freedom of labor from constraints imposed by the market;
John R. Commons, "The Right to Work," in Malcom Rutherford and Warren
J. Samuels, eds., John R. Commons: Selected Essays (London:
Routledge: 1997), 62. The Americans with Disabilities Act increases the
liberty of people with physical disabilities by changing the
architecture of certain public places, thereby making access to those
places easier; 42 United States Code , section 12101 (2000). Each
of these interventions to change existing conditions changes the
liberty of a particular group. The effect of those interventions should
be accounted for in order to understand the effective liberty that each
of these groups might face.
513
Why Hollywood Is Right
514
The most obvious point that this model reveals is just why, or just
how, Hollywood is right. The copyright warriors have rallied Congress
and the courts to defend copyright. This model helps us see why that
rallying makes sense.
515
Let's say this is the picture of copyright's regulation before the
Internet:
516
517
There is balance between law, norms, market, and architecture. The law
limits the ability to copy and share content, by imposing penalties on
those who copy and share content. Those penalties are reinforced by
technologies that make it hard to copy and share content (architecture)
and expensive to copy and share content (market). Finally, those
penalties are mitigated by norms we all recognize - kids, for example,
taping other kids' records. These uses of copyrighted material may well
be infringement, but the norms of our society (before the Internet, at
least) had no problem with this form of infringement.
518
Enter the Internet, or, more precisely, technologies such as MP3s and
p2p sharing. Now the constraint of architecture changes dramatically,
as does the constraint of the market. And as both the market and
architecture relax the regulation of copyright, norms pile on. The
happy balance (for the warriors, at least) of life before the Internet
becomes an effective state of anarchy after the Internet.
519
Thus the sense of, and justification for, the warriors' response.
Technology has changed, the warriors say, and the effect of this
change, when ramified through the market and norms, is that a balance
of protection for the copyright owners' rights has been lost. This is
Iraq after the fall of Saddam, but this time no government is
justifying the looting that results.
520
521
Neither this analysis nor the conclusions that follow are new to the
warriors. Indeed, in a "White Paper" prepared by the Commerce
Department (one heavily influenced by the copyright warriors) in 1995,
this mix of regulatory modalities had already been identified and the
strategy to respond already mapped. In response to the changes the
Internet had effected, the White Paper argued (1) Congress should
strengthen intellectual property law, (2) businesses should adopt
innovative marketing techniques, (3) technologists should push to
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
522
This mixed strategy is just what copyright needed - if it was to
preserve the particular balance that existed before the change induced
by the Internet. And it's just what we should expect the content
industry to push for. It is as American as apple pie to consider the
happy life you have as an entitlement, and to look to the law to
protect it if something comes along to change that happy life.
Homeowners living in a flood plain have no hesitation appealing to the
government to rebuild (and rebuild again) when a flood (architecture)
wipes away their property (law). Farmers have no hesitation appealing
to the government to bail them out when a virus (architecture)
devastates their crop. Unions have no hesitation appealing to the
government to bail them out when imports (market) wipe out the U.S.
steel industry.
523
Thus, there's nothing wrong or surprising in the content industry's
campaign to protect itself from the harmful consequences of a
technological innovation. And I would be the last person to argue that
the changing technology of the Internet has not had a profound effect
on the content industry's way of doing business, or as John Seely Brown
describes it, its "architecture of revenue."
524
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
technology has weakened a particular way of doing business, it doesn't
follow that the government should intervene to support that old way of
doing business. Kodak, for example, has lost perhaps as much as 20
percent of their traditional film market to the emerging technologies
of digital cameras.122 Does anyone believe the government
should ban digital cameras just to support Kodak? Highways have
weakened the freight business for railroads. Does anyone think we
should ban trucks from roads for the purpose of protecting the
railroads? Closer to the subject of this book, remote channel changers
have weakened the "stickiness" of television advertising (if a boring
commercial comes on the TV, the remote makes it easy to surf ), and it
may well be that this change has weakened the television advertising
market. But does anyone believe we should regulate remotes to reinforce
commercial television? (Maybe by limiting them to function only once a
second, or to switch to only ten channels within an hour?)
122. See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
BusinessWeek online, 2 August 1999, available at link #23. For a more
recent analysis of Kodak's place in the market, see Chana R.
Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6
October 2003, available at link #24.
525
The obvious answer to these obviously rhetorical questions is no. In a
free society, with a free market, supported by free enterprise and free
trade, the government's role is not to support one way of doing
business against others. Its role is not to pick winners and protect
them against loss. If the government did this generally, then we would
never have any progress. As Microsoft chairman Bill Gates wrote in
1991, in a memo criticizing software patents, "established companies
have an interest in excluding future competitors."123 And
relative to a startup, established companies also have the means.
(Think RCA and FM radio.) A world in which competitors with new ideas
must fight not only the market but also the government is a world in
which competitors with new ideas will not succeed. It is a world of
stasis and increasingly concentrated stagnation. It is the Soviet Union
under Brezhnev.
123. Fred Warshofsky, The Patent Wars (New York: Wiley, 1994),
170-71.
526
Thus, while it is understandable for industries threatened with new
technologies that change the way they do business to look to the
government for protection, it is the special duty of policy makers to
guarantee that that protection not become a deterrent to progress. It
is the duty of policy makers, in other words, to assure that the
changes they create, in response to the request of those hurt by
changing technology, are changes that preserve the incentives and
opportunities for innovation and change.
527
In the context of laws regulating speech - which include, obviously,
copyright law - that duty is even stronger. When the industry
complaining about changing technologies is asking Congress to respond
in a way that burdens speech and creativity, policy makers should be
especially wary of the request. It is always a bad deal for the
government to get into the business of regulating speech markets. The
risks and dangers of that game are precisely why our framers created
the First Amendment to our Constitution: "Congress shall make no law
... abridging the freedom of speech." So when Congress is being asked
to pass laws that would "abridge" the freedom of speech, it should ask"
carefully - whether such regulation is justified.
528
My argument just now, however, has nothing to do with whether the
changes that are being pushed by the copyright warriors are
"justified." My argument is about their effect. For before we get to
the question of justification, a hard question that depends a great
deal upon your values, we should first ask whether we understand the
effect of the changes the content industry wants.
529
Here's the metaphor that will capture the argument to follow.
530
In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist
Paul Hermann Mýller won the Nobel Prize for his work demonstrating
the insecticidal properties of DDT. By the 1950s, the insecticide was
widely used around the world to kill disease-carrying pests. It was
also used to increase farm production.
531
No one doubts that killing disease-carrying pests or increasing crop
production is a good thing. No one doubts that the work of Mýller
was important and valuable and probably saved lives, possibly millions.
532
But in 1962, Rachel Carson published Silent Spring , which argued
that DDT, whatever its primary benefits, was also having unintended
environmental consequences. Birds were losing the ability to reproduce.
Whole chains of the ecology were being destroyed.
533
No one set out to destroy the environment. Paul Mýller certainly
did not aim to harm any birds. But the effort to solve one set of
problems produced another set which, in the view of some, was far worse
than the problems that were originally attacked. Or more accurately,
the problems DDT caused were worse than the problems it solved, at
least when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
534
It is to this image precisely that Duke University law professor James
Boyle appeals when he argues that we need an "environmentalism" for
culture.124 His point, and the point I want to develop in the
balance of this chapter, is not that the aims of copyright are flawed.
Or that authors should not be paid for their work. Or that music should
be given away "for free." The point is that some of the ways in which
we might protect authors will have unintended consequences for the
cultural environment, much like DDT had for the natural environment.
And just as criticism of DDT is not an endorsement of malaria or an
attack on farmers, so, too, is criticism of one particular set of
regulations protecting copyright not an endorsement of anarchy or an
attack on authors. It is an environment of creativity that we seek, and
we should be aware of our actions' effects on the environment.
124. See, for example, James Boyle, "A Politics of Intellectual
Property: Environmentalism for the Net?" Duke Law Journal 47
(1997): 87.
535
My argument, in the balance of this chapter, tries to map exactly this
effect. No doubt the technology of the Internet has had a dramatic
effect on the ability of copyright owners to protect their content. But
there should also be little doubt that when you add together the
changes in copyright law over time, plus the change in technology that
the Internet is undergoing just now, the net effect of these changes
will not be only that copyrighted work is effectively protected. Also,
and generally missed, the net effect of this massive increase in
protection will be devastating to the environment for creativity.
536
In a line: To kill a gnat, we are spraying DDT with consequences for
free culture that will be far more devastating than that this gnat will
be lost.
537
Beginnings
538
America copied English copyright law. Actually, we copied and improved
English copyright law. Our Constitution makes the purpose of "creative
property" rights clear; its express limitations reinforce the English
aim to avoid overly powerful publishers.
539
The power to establish "creative property" rights is granted to
Congress in a way that, for our Constitution, at least, is very odd.
Article I, section 8, clause 8 of our Constitution states that:
540
Congress has the power to promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries."
541
We can call this the "Progress Clause," for notice what this clause
does not say. It does not say Congress has the power to grant "creative
property rights." It says that Congress has the power to promote
progress . The grant of power is its purpose, and its purpose is a
public one, not the purpose of enriching publishers, nor even primarily
the purpose of rewarding authors.
542
The Progress Clause expressly limits the term of copyrights. As we saw
in chapter 6, the English limited the term of copyright so as to assure
that a few would not exercise disproportionate control over culture by
exercising disproportionate control over publishing. We can assume the
framers followed the English for a similar purpose. Indeed, unlike the
English, the framers reinforced that objective, by requiring that
copyrights extend "to Authors" only.
543
The design of the Progress Clause reflects something about the
Constitution's design in general. To avoid a problem, the framers built
structure. To prevent the concentrated power of publishers, they built
a structure that kept copyrights away from publishers and kept them
short. To prevent the concentrated power of a church, they banned the
federal government from establishing a church. To prevent concentrating
power in the federal government, they built structures to reinforce the
power of the states - including the Senate, whose members were at the
time selected by the states, and an electoral college, also selected by
the states, to select the president. In each case, a structure
built checks and balances into the constitutional frame, structured to
prevent otherwise inevitable concentrations of power.
544
I doubt the framers would recognize the regulation we call "copyright"
today. The scope of that regulation is far beyond anything they ever
considered. To begin to understand what they did, we need to put our
"copyright" in context: We need to see how it has changed in the 210
years since they first struck its design.
545
Some of these changes come from the law: some in light of changes in
technology, and some in light of changes in technology given a
particular concentration of market power. In terms of our model, we
started here:
546
547
We will end here:
548
549
Let me explain how.
550
Law: Duration
551
When the first Congress enacted laws to protect creative property, it
faced the same uncertainty about the status of creative property that
the English had confronted in 1774. Many states had passed laws
protecting creative property, and some believed that these laws simply
supplemented common law rights that already protected creative
authorship.125 This meant that there was no guaranteed public
domain in the United States in 1790. If copyrights were protected by
the common law, then there was no simple way to know whether a work
published in the United States was controlled or free. Just as in
England, this lingering uncertainty would make it hard for publishers
to rely upon a public domain to reprint and distribute works.
125. William W. Crosskey, Politics and the Constitution in the
History of the United States (London: Cambridge University Press,
1953), vol. 1, 485-86: "extinguish[ing], by plain implication of "the
supreme Law of the Land," the perpetual rights which authors had, or
were supposed by some to have, under the Common Law " (emphasis
added).
552
That uncertainty ended after Congress passed legislation granting
copyrights. Because federal law overrides any contrary state law,
federal protections for copyrighted works displaced any state law
protections. Just as in England the Statute of Anne eventually meant
that the copyrights for all English works expired, a federal statute
meant that any state copyrights expired as well.
553
In 1790, Congress enacted the first copyright law. It created a federal
copyright and secured that copyright for fourteen years. If the author
was alive at the end of that fourteen years, then he could opt to renew
the copyright for another fourteen years. If he did not renew the
copyright, his work passed into the public domain.
554
While there were many works created in the United States in the first
ten years of the Republic, only 5 percent of the works were actually
registered under the federal copyright regime. Of all the work created
in the United States both before 1790 and from 1790 through 1800, 95
percent immediately passed into the public domain; the balance would
pass into the pubic domain within twenty-eight years at most, and more
likely within fourteen years.126
126. Although 13,000 titles were published in the United States from
1790 to 1799, only 556 copyright registrations were filed; John Tebbel,
A History of Book Publishing in the United States, vol. 1,
The Creation of an Industry, 1630- 1865 (New York: Bowker,
1972), 141. Of the 21,000 imprints recorded before 1790, only twelve
were copyrighted under the 1790 act; William J. Maher, Copyright
Term, Retrospective Extension and the Copyright Law of 1790 in
Historical Context, 7-10 (2002), available at link #25. Thus, the
overwhelming majority of works fell immediately into the public domain.
Even those works that were copyrighted fell into the public domain
quickly, because the term of copyright was short. The initial term of
copyright was fourteen years, with the option of renewal for an
additional fourteen years. Copyright Act of May 31, 1790, § 1, 1
stat. 124.
555
This system of renewal was a crucial part of the American system of
copyright. It assured that the maximum terms of copyright would be
granted only for works where they were wanted. After the initial term
of fourteen years, if it wasn't worth it to an author to renew his
copyright, then it wasn't worth it to society to insist on the
copyright, either.
556
Fourteen years may not seem long to us, but for the vast majority of
copyright owners at that time, it was long enough: Only a small
minority of them renewed their copyright after fourteen years; the
balance allowed their work to pass into the public domain.127
127. Few copyright holders ever chose to renew their copyrights. For
instance, of the 25,006 copyrights registered in 1883, only 894 were
renewed in 1910. For a year-by-year analysis of copyright renewal
rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright,"
Studies on Copyright, vol. 1 (New York: Practicing Law
Institute, 1963), 618. For a more recent and comprehensive analysis,
see William M. Landes and Richard A. Posner, "Indefinitely Renewable
Copyright," University of Chicago Law Review 70 (2003): 471,
498-501, and accompanying figures.
557
Even today, this structure would make sense. Most creative work has an
actual commercial life of just a couple of years. Most books fall out
of print after one year.128 When that happens, the used books
are traded free of copyright regulation. Thus the books are no longer
effectively controlled by copyright. The only practical
commercial use of the books at that time is to sell the books as used
books; that use - because it does not involve publication - is
effectively free.
128. See Ringer, ch. 9, n. 2.
558
In the first hundred years of the Republic, the term of copyright was
changed once. In 1831, the term was increased from a maximum of 28
years to a maximum of 42 by increasing the initial term of copyright
from 14 years to 28 years. In the next fifty years of the Republic, the
term increased once again. In 1909, Congress extended the renewal term
of 14 years to 28 years, setting a maximum term of 56 years.
559
Then, beginning in 1962, Congress started a practice that has defined
copyright law since. Eleven times in the last forty years, Congress has
extended the terms of existing copyrights; twice in those forty years,
Congress extended the term of future copyrights. Initially, the
extensions of existing copyrights were short, a mere one to two years.
In 1976, Congress extended all existing copyrights by nineteen years.
And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
extended the term of existing and future copyrights by twenty years.
560
The effect of these extensions is simply to toll, or delay, the passing
of works into the public domain. This latest extension means that the
public domain will have been tolled for thirty-nine out of fifty-five
years, or 70 percent of the time since 1962. Thus, in the twenty years
after the Sonny Bono Act, while one million patents will pass into the
public domain, zero copyrights will pass into the public domain by
virtue of the expiration of a copyright term.
561
The effect of these extensions has been exacerbated by another,
little-noticed change in the copyright law. Remember I said that the
framers established a two- part copyright regime, requiring a copyright
owner to renew his copyright after an initial term. The requirement of
renewal meant that works that no longer needed copyright protection
would pass more quickly into the public domain. The works remaining
under protection would be those that had some continuing commercial
value.
562
The United States abandoned this sensible system in 1976. For all works
created after 1978, there was only one copyright term - the maximum
term. For "natural" authors, that term was life plus fifty years. For
corporations, the term was seventy-five years. Then, in 1992, Congress
abandoned the renewal requirement for all works created before 1978.
All works still under copyright would be accorded the maximum term then
available. After the Sonny Bono Act, that term was ninety-five years.
563
This change meant that American law no longer had an automatic way to
assure that works that were no longer exploited passed into the public
domain. And indeed, after these changes, it is unclear whether it is
even possible to put works into the public domain. The public domain is
orphaned by these changes in copyright law. Despite the requirement
that terms be "limited," we have no evidence that anything will limit
them.
564
The effect of these changes on the average duration of copyright is
dramatic. In 1973, more than 85 percent of copyright owners failed to
renew their copyright. That meant that the average term of copyright in
1973 was just 32.2 years. Because of the elimination of the renewal
requirement, the average term of copyright is now the maximum term. In
thirty years, then, the average term has tripled, from 32.2 years to 95
years.129
129. These statistics are understated. Between the years 1910 and 1962
(the first year the renewal term was extended), the average term was
never more than thirty-two years, and averaged thirty years. See Landes
and Posner, "Indefinitely Renewable Copyright," loc. cit.
565
Law: Scope
566
The "scope" of a copyright is the range of rights granted by the law.
The scope of American copyright has changed dramatically. Those changes
are not necessarily bad. But we should understand the extent of the
changes if we're to keep this debate in context.
567
In 1790, that scope was very narrow. Copyright covered only "maps,
charts, and books." That means it didn't cover, for example, music or
architecture. More significantly, the right granted by a copyright gave
the author the exclusive right to "publish" copyrighted works. That
means someone else violated the copyright only if he republished the
work without the copyright owner's permission. Finally, the right
granted by a copyright was an exclusive right to that particular book.
The right did not extend to what lawyers call "derivative works." It
would not, therefore, interfere with the right of someone other than
the author to translate a copyrighted book, or to adapt the story to a
different form (such as a drama based on a published book).
568
This, too, has changed dramatically. While the contours of copyright
today are extremely hard to describe simply, in general terms, the
right covers practically any creative work that is reduced to a
tangible form. It covers music as well as architecture, drama as well
as computer programs. It gives the copyright owner of that creative
work not only the exclusive right to "publish" the work, but also the
exclusive right of control over any "copies" of that work. And most
significant for our purposes here, the right gives the copyright owner
control over not only his or her particular work, but also any
"derivative work" that might grow out of the original work. In this
way, the right covers more creative work, protects the creative work
more broadly, and protects works that are based in a significant way on
the initial creative work.
569
At the same time that the scope of copyright has expanded, procedural
limitations on the right have been relaxed. I've already described the
complete removal of the renewal requirement in 1992. In addition to the
renewal requirement, for most of the history of American copyright law,
there was a requirement that a work be registered before it could
receive the protection of a copyright. There was also a requirement
that any copyrighted work be marked either with that famous © or
the word copyright . And for most of the history of American
copyright law, there was a requirement that works be deposited with the
government before a copyright could be secured.
570
The reason for the registration requirement was the sensible
understanding that for most works, no copyright was required. Again, in
the first ten years of the Republic, 95 percent of works eligible for
copyright were never copyrighted. Thus, the rule reflected the norm:
Most works apparently didn't need copyright, so registration narrowed
the regulation of the law to the few that did. The same reasoning
justified the requirement that a work be marked as copyrighted - that
way it was easy to know whether a copyright was being claimed. The
requirement that works be deposited was to assure that after the
copyright expired, there would be a copy of the work somewhere so that
it could be copied by others without locating the original author.
571
All of these "formalities" were abolished in the American system when
we decided to follow European copyright law. There is no requirement
that you register a work to get a copyright; the copyright now is
automatic; the copyright exists whether or not you mark your work with
a © ; and the copyright exists whether or not you actually make a
copy available for others to copy.
572
Consider a practical example to understand the scope of these
differences.
573
If, in 1790, you wrote a book and you were one of the 5 percent who
actually copyrighted that book, then the copyright law protected you
against another publisher's taking your book and republishing it
without your permission. The aim of the act was to regulate publishers
so as to prevent that kind of unfair competition. In 1790, there were
174 publishers in the United States.130 The Copyright Act was
thus a tiny regulation of a tiny proportion of a tiny part of the
creative market in the United States - publishers.
130. See Thomas Bender and David Sampliner, "Poets, Pirates, and the
Creation of American Literature," 29 New York University Journal of
International Law and Politics 255 (1997), and James Gilraeth, ed.,
Federal Copyright Records, 1790- 1800 (U.S. G.P.O., 1987).
574
The act left other creators totally unregulated. If I copied your poem
by hand, over and over again, as a way to learn it by heart, my act was
totally unregulated by the 1790 act. If I took your novel and made a
play based upon it, or if I translated it or abridged it, none of those
activities were regulated by the original copyright act. These creative
activities remained free, while the activities of publishers were
restrained.
575
Today the story is very different: If you write a book, your book is
automatically protected. Indeed, not just your book. Every e-mail,
every note to your spouse, every doodle, every creative act
that's reduced to a tangible form - all of this is automatically
copyrighted. There is no need to register or mark your work. The
protection follows the creation, not the steps you take to protect it.
576
That protection gives you the right (subject to a narrow range of fair
use exceptions) to control how others copy the work, whether they copy
it to republish it or to share an excerpt.
577
That much is the obvious part. Any system of copyright would control
competing publishing. But there's a second part to the copyright of
today that is not at all obvious. This is the protection of "derivative
rights." If you write a book, no one can make a movie out of your book
without permission. No one can translate it without permission.
CliffsNotes can't make an abridgment unless permission is granted. All
of these derivative uses of your original work are controlled by the
copyright holder. The copyright, in other words, is now not just an
exclusive right to your writings, but an exclusive right to your
writings and a large proportion of the writings inspired by them.
578
It is this derivative right that would seem most bizarre to our
framers, though it has become second nature to us. Initially, this
expansion was created to deal with obvious evasions of a narrower
copyright. If I write a book, can you change one word and then claim a
copyright in a new and different book? Obviously that would make a joke
of the copyright, so the law was properly expanded to include those
slight modifications as well as the verbatim original work.
579
In preventing that joke, the law created an astonishing power within a
free culture - at least, it's astonishing when you understand that the
law applies not just to the commercial publisher but to anyone with a
computer. I understand the wrong in duplicating and selling someone
else's work. But whatever that wrong is, transforming someone
else's work is a different wrong. Some view transformation as no wrong
at all - they believe that our law, as the framers penned it, should
not protect derivative rights at all.131 Whether or not you go
that far, it seems plain that whatever wrong is involved is
fundamentally different from the wrong of direct piracy.
131. Jonathan Zittrain, "The Copyright Cage," Legal Affairs,
July/August 2003, available at link #26.
580
Yet copyright law treats these two different wrongs in the same way. I
can go to court and get an injunction against your pirating my book. I
can go to court and get an injunction against your transformative use
of my book.132 These two different uses of my creative work
are treated the same.
132. Professor Rubenfeld has presented a powerful constitutional
argument about the difference that copyright law should draw (from the
perspective of the First Amendment) between mere "copies" and
derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
Copyright's Constitutionality," Yale Law Journal 112 (2002):
1-60 (see especially pp. 53-59).
581
This again may seem right to you. If I wrote a book, then why should
you be able to write a movie that takes my story and makes money from
it without paying me or crediting me? Or if Disney creates a creature
called "Mickey Mouse," why should you be able to make Mickey Mouse toys
and be the one to trade on the value that Disney originally created?
582
These are good arguments, and, in general, my point is not that the
derivative right is unjustified. My aim just now is much narrower:
simply to make clear that this expansion is a significant change from
the rights originally granted.
583
Law and Architecture: Reach
584
Whereas originally the law regulated only publishers, the change in
copyright's scope means that the law today regulates publishers, users,
and authors. It regulates them because all three are capable of making
copies, and the core of the regulation of copyright law is
copies.133
133. This is a simplification of the law, but not much of one. The law
certainly regulates more than "copies" - a public performance of a
copyrighted song, for example, is regulated even though performance per
se doesn't make a copy; 17 United States Code, section 106(4).
And it certainly sometimes doesn't regulate a "copy"; 17 United
States Code, section 112(a). But the presumption under the existing
law (which regulates "copies;" 17 United States Code, section
102) is that if there is a copy, there is a right.
585
"Copies." That certainly sounds like the obvious thing for
copy right law to regulate. But as with Jack Valenti's argument
at the start of this chapter, that "creative property" deserves the
"same rights" as all other property, it is the obvious that we
need to be most careful about. For while it may be obvious that in the
world before the Internet, copies were the obvious trigger for
copyright law, upon reflection, it should be obvious that in the world
with the Internet, copies should not be the trigger for
copyright law. More precisely, they should not always be the
trigger for copyright law.
586
This is perhaps the central claim of this book, so let me take this
very slowly so that the point is not easily missed. My claim is that
the Internet should at least force us to rethink the conditions under
which the law of copyright automatically applies,134 because
it is clear that the current reach of copyright was never contemplated,
much less chosen, by the legislators who enacted copyright law.
134. Thus, my argument is not that in each place that copyright law
extends, we should repeal it. It is instead that we should have a good
argument for its extending where it does, and should not determine its
reach on the basis of arbitrary and automatic changes caused by
technology.
587
We can see this point abstractly by beginning with this largely empty
circle.
588
589
Think about a book in real space, and imagine this circle to represent
all its potential uses . Most of these uses are unregulated by
copyright law, because the uses don't create a copy. If you read a
book, that act is not regulated by copyright law. If you give someone
the book, that act is not regulated by copyright law. If you resell a
book, that act is not regulated (copyright law expressly states that
after the first sale of a book, the copyright owner can impose no
further conditions on the disposition of the book). If you sleep on the
book or use it to hold up a lamp or let your puppy chew it up, those
acts are not regulated by copyright law, because those acts do not make
a copy.
590
591
Obviously, however, some uses of a copyrighted book are regulated by
copyright law. Republishing the book, for example, makes a copy. It is
therefore regulated by copyright law. Indeed, this particular use
stands at the core of this circle of possible uses of a copyrighted
work. It is the paradigmatic use properly regulated by copyright
regulation (see first diagram on next page).
592
Finally, there is a tiny sliver of otherwise regulated copying uses
that remain unregulated because the law considers these "fair uses."
593
594
These are uses that themselves involve copying, but which the law
treats as unregulated because public policy demands that they remain
unregulated. You are free to quote from this book, even in a review
that is quite negative, without my permission, even though that quoting
makes a copy. That copy would ordinarily give the copyright owner the
exclusive right to say whether the copy is allowed or not, but the law
denies the owner any exclusive right over such "fair uses" for public
policy (and possibly First Amendment) reasons.
595
596
597
In real space, then, the possible uses of a book are divided into three
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses
that are nonetheless deemed "fair" regardless of the copyright owner's
views.
598
Enter the Internet - a distributed, digital network where every use of
a copyrighted work produces a copy.135 And because of this
single, arbitrary feature of the design of a digital network, the scope
of category 1 changes dramatically. Uses that before were presumptively
unregulated are now presumptively regulated. No longer is there a set
of presumptively unregulated uses that define a freedom associated with
a copyrighted work. Instead, each use is now subject to the copyright,
because each use also makes a copy - category 1 gets sucked into
category 2. And those who would defend the unregulated uses of
copyrighted work must look exclusively to category 3, fair uses, to
bear the burden of this shift.
135. I don't mean "nature" in the sense that it couldn't be different,
but rather that its present instantiation entails a copy. Optical
networks need not make copies of content they transmit, and a digital
network could be designed to delete anything it copies so that the same
number of copies remain.
599
So let's be very specific to make this general point clear. Before the
Internet, if you purchased a book and read it ten times, there would be
no plausible copyright -related argument that the copyright owner
could make to control that use of her book. Copyright law would have
nothing to say about whether you read the book once, ten times, or
every night before you went to bed. None of those instances of use -
reading - could be regulated by copyright law because none of those
uses produced a copy.
600
But the same book as an e-book is effectively governed by a different
set of rules. Now if the copyright owner says you may read the book
only once or only once a month, then copyright law would aid the
copyright owner in exercising this degree of control, because of the
accidental feature of copyright law that triggers its application upon
there being a copy. Now if you read the book ten times and the license
says you may read it only five times, then whenever you read the book
(or any portion of it) beyond the fifth time, you are making a copy of
the book contrary to the copyright owner's wish.
601
There are some people who think this makes perfect sense. My aim just
now is not to argue about whether it makes sense or not. My aim is only
to make clear the change. Once you see this point, a few other points
also become clear:
602
First, making category 1 disappear is not anything any policy maker
ever intended. Congress did not think through the collapse of the
presumptively unregulated uses of copyrighted works. There is no
evidence at all that policy makers had this idea in mind when they
allowed our policy here to shift. Unregulated uses were an important
part of free culture before the Internet.
603
Second, this shift is especially troubling in the context of
transformative uses of creative content. Again, we can all understand
the wrong in commercial piracy. But the law now purports to regulate
any transformation you make of creative work using a machine.
"Copy and paste" and "cut and paste" become crimes. Tinkering with a
story and releasing it to others exposes the tinkerer to at least a
requirement of justification. However troubling the expansion with
respect to copying a particular work, it is extraordinarily troubling
with respect to transformative uses of creative work.
604
Third, this shift from category 1 to category 2 puts an extraordinary
burden on category 3 ("fair use") that fair use never before had to
bear. If a copyright owner now tried to control how many times I could
read a book on-line, the natural response would be to argue that this
is a violation of my fair use rights. But there has never been any
litigation about whether I have a fair use right to read, because
before the Internet, reading did not trigger the application of
copyright law and hence the need for a fair use defense. The right to
read was effectively protected before because reading was not
regulated.
605
This point about fair use is totally ignored, even by advocates for
free culture. We have been cornered into arguing that our rights depend
upon fair use - never even addressing the earlier question about the
expansion in effective regulation. A thin protection grounded in fair
use makes sense when the vast majority of uses are unregulated .
But when everything becomes presumptively regulated, then the
protections of fair use are not enough.
606
The case of Video Pipeline is a good example. Video Pipeline was in the
business of making "trailer" advertisements for movies available to
video stores. The video stores displayed the trailers as a way to sell
videos. Video Pipeline got the trailers from the film distributors, put
the trailers on tape, and sold the tapes to the retail stores.
607
The company did this for about fifteen years. Then, in 1997, it began
to think about the Internet as another way to distribute these
previews. The idea was to expand their "selling by sampling" technique
by giving on-line stores the same ability to enable "browsing." Just as
in a bookstore you can read a few pages of a book before you buy the
book, so, too, you would be able to sample a bit from the movie on-line
before you bought it.
608
In 1998, Video Pipeline informed Disney and other film distributors
that it intended to distribute the trailers through the Internet
(rather than sending the tapes) to distributors of their videos. Two
years later, Disney told Video Pipeline to stop. The owner of Video
Pipeline asked Disney to talk about the matter - he had built a
business on distributing this content as a way to help sell Disney
films; he had customers who depended upon his delivering this content.
Disney would agree to talk only if Video Pipeline stopped the
distribution immediately. Video Pipeline thought it was within their
"fair use" rights to distribute the clips as they had. So they filed a
lawsuit to ask the court to declare that these rights were in fact
their rights.
609
Disney countersued - for $100 million in damages. Those damages were
predicated upon a claim that Video Pipeline had - willfully infringed"
on Disney's copyright. When a court makes a finding of willful
infringement, it can award damages not on the basis of the actual harm
to the copyright owner, but on the basis of an amount set in the
statute. Because Video Pipeline had distributed seven hundred clips of
Disney movies to enable video stores to sell copies of those movies,
Disney was now suing Video Pipeline for $100 million.
610
Disney has the right to control its property, of course. But the video
stores that were selling Disney's films also had some sort of right to
be able to sell the films that they had bought from Disney. Disney's
claim in court was that the stores were allowed to sell the films and
they were permitted to list the titles of the films they were selling,
but they were not allowed to show clips of the films as a way of
selling them without Disney's permission.
611
Now, you might think this is a close case, and I think the courts would
consider it a close case. My point here is to map the change that gives
Disney this power. Before the Internet, Disney couldn't really control
how people got access to their content. Once a video was in the
marketplace, the "first-sale doctrine" would free the seller to use the
video as he wished, including showing portions of it in order to
engender sales of the entire movie video. But with the Internet, it
becomes possible for Disney to centralize control over access to this
content. Because each use of the Internet produces a copy, use on the
Internet becomes subject to the copyright owner's control. The
technology expands the scope of effective control, because the
technology builds a copy into every transaction.
612
No doubt, a potential is not yet an abuse, and so the potential for
control is not yet the abuse of control. Barnes & Noble has the
right to say you can't touch a book in their store; property law gives
them that right. But the market effectively protects against that
abuse. If Barnes & Noble banned browsing, then consumers would
choose other bookstores. Competition protects against the extremes. And
it may well be (my argument so far does not even question this) that
competition would prevent any similar danger when it comes to
copyright. Sure, publishers exercising the rights that authors have
assigned to them might try to regulate how many times you read a book,
or try to stop you from sharing the book with anyone. But in a
competitive market such as the book market, the dangers of this
happening are quite slight.
613
Again, my aim so far is simply to map the changes that this changed
architecture enables. Enabling technology to enforce the control of
copyright means that the control of copyright is no longer defined by
balanced policy. The control of copyright is simply what private owners
choose. In some contexts, at least, that fact is harmless. But in some
contexts it is a recipe for disaster.
614
Architecture and Law: Force
615
The disappearance of unregulated uses would be change enough, but a
second important change brought about by the Internet magnifies its
significance. This second change does not affect the reach of copyright
regulation; it affects how such regulation is enforced.
616
In the world before digital technology, it was generally the law that
controlled whether and how someone was regulated by copyright law. The
law, meaning a court, meaning a judge: In the end, it was a human,
trained in the tradition of the law and cognizant of the balances that
tradition embraced, who said whether and how the law would restrict
your freedom.
617
There's a famous story about a battle between the Marx Brothers and
Warner Brothers. The Marxes intended to make a parody of
Casablanca . Warner Brothers objected. They wrote a nasty letter
to the Marxes, warning them that there would be serious legal
consequences if they went forward with their plan.136
136. See David Lange, "Recognizing the Public Domain," Law and
Contemporary Problems 44 (1981): 172-73.
618
This led the Marx Brothers to respond in kind. They warned Warner
Brothers that the Marx Brothers "were brothers long before you
were."137 The Marx Brothers therefore owned the word
brothers , and if Warner Brothers insisted on trying to control
Casablanca , then the Marx Brothers would insist on control over
brothers .
137. Ibid. See also Vaidhyanathan, Copyrights and Copywrongs,
1-3.
619
An absurd and hollow threat, of course, because Warner Brothers, like
the Marx Brothers, knew that no court would ever enforce such a silly
claim. This extremism was irrelevant to the real freedoms anyone
(including Warner Brothers) enjoyed.
620
On the Internet, however, there is no check on silly rules, because on
the Internet, increasingly, rules are enforced not by a human but by a
machine: Increasingly, the rules of copyright law, as interpreted by
the copyright owner, get built into the technology that delivers
copyrighted content. It is code, rather than law, that rules. And the
problem with code regulations is that, unlike law, code has no shame.
Code would not get the humor of the Marx Brothers. The consequence of
that is not at all funny.
621
Consider the life of my Adobe eBook Reader.
622
An e-book is a book delivered in electronic form. An Adobe eBook is not
a book that Adobe has published; Adobe simply produces the software
that publishers use to deliver e-books. It provides the technology, and
the publisher delivers the content by using the technology.
623
On the next page is a picture of an old version of my Adobe eBook
Reader.
624
As you can see, I have a small collection of e-books within this e-book
library. Some of these books reproduce content that is in the public
domain: Middlemarch , for example, is in the public domain. Some
of them reproduce content that is not in the public domain: My own book
The Future of Ideas is not yet within the public domain.
625
Consider Middlemarch first. If you click on my e-book copy of
Middlemarch , you'll see a fancy cover, and then a button at the
bottom called Permissions.
626
627
If you click on the Permissions button, you'll see a list of the
permissions that the publisher purports to grant with this book.
628
629
According to my eBook Reader, I have the permission to copy to the
clipboard of the computer ten text selections every ten days. (So far,
I've copied no text to the clipboard.) I also have the permission to
print ten pages from the book every ten days. Lastly, I have the
permission to use the Read Aloud button to hear Middlemarch read
aloud through the computer.
630
631
Here's the e-book for another work in the public domain (including the
translation): Aristotle's Politics .
632
According to its permissions, no printing or copying is permitted at
all. But fortunately, you can use the Read Aloud button to hear the
book.
633
634
Finally (and most embarrassingly), here are the permissions for the
original e- book version of my last book, The Future of Ideas :
635
636
No copying, no printing, and don't you dare try to listen to this book!
637
Now, the Adobe eBook Reader calls these controls "permissions" - as if
the publisher has the power to control how you use these works. For
works under copyright, the copyright owner certainly does have the
power - up to the limits of the copyright law. But for work not under
copyright, there is no such copyright power.138 When my e-book
of Middlemarch says I have the permission to copy only ten text
selections into the memory every ten days, what that really means is
that the eBook Reader has enabled the publisher to control how I use
the book on my computer, far beyond the control that the law would
enable.
138. In principle, a contract might impose a requirement on me. I might,
for example, buy a book from you that includes a contract that says I
will read it only three times, or that I promise to read it three
times. But that obligation (and the limits for creating that
obligation) would come from the contract, not from copyright law, and
the obligations of contract would not necessarily pass to anyone who
subsequently acquired the book.
638
The control comes instead from the code - from the technology within
which the e- book "lives." Though the e-book says that these are
permissions, they are not the sort of "permissions" that most of us
deal with. When a teenager gets "permission" to stay out till midnight,
she knows (unless she's Cinderella) that she can stay out till 2 A.M.,
but will suffer a punishment if she's caught. But when the Adobe eBook
Reader says I have the permission to make ten copies of the text into
the computer's memory, that means that after I've made ten copies, the
computer will not make any more. The same with the printing
restrictions: After ten pages, the eBook Reader will not print any more
pages. It's the same with the silly restriction that says that you
can't use the Read Aloud button to read my book aloud - it's not that
the company will sue you if you do; instead, if you push the Read Aloud
button with my book, the machine simply won't read aloud.
639
These are controls , not permissions. Imagine a world where the
Marx Brothers sold word processing software that, when you tried to
type "Warner Brothers," erased "Brothers" from the sentence.
640
This is the future of copyright law: not so much copyright law
as copyright code . The controls over access to content will not
be controls that are ratified by courts; the controls over access to
content will be controls that are coded by programmers. And whereas the
controls that are built into the law are always to be checked by a
judge, the controls that are built into the technology have no similar
built-in check.
641
How significant is this? Isn't it always possible to get around the
controls built into the technology? Software used to be sold with
technologies that limited the ability of users to copy the software,
but those were trivial protections to defeat. Why won't it be trivial
to defeat these protections as well?
642
We've only scratched the surface of this story. Return to the Adobe
eBook Reader.
643
Early in the life of the Adobe eBook Reader, Adobe suffered a public
relations nightmare. Among the books that you could download for free
on the Adobe site was a copy of Alice's Adventures in
Wonderland . This wonderful book is in the public domain. Yet when
you clicked on Permissions for that book, you got the following report:
644
645
Here was a public domain children's book that you were not allowed to
copy, not allowed to lend, not allowed to give, and, as the
"permissions" indicated, not allowed to "read aloud"!
646
The public relations nightmare attached to that final permission. For
the text did not say that you were not permitted to use the Read Aloud
button; it said you did not have the permission to read the book aloud.
That led some people to think that Adobe was restricting the right of
parents, for example, to read the book to their children, which seemed,
to say the least, absurd.
647
Adobe responded quickly that it was absurd to think that it was trying
to restrict the right to read a book aloud. Obviously it was only
restricting the ability to use the Read Aloud button to have the book
read aloud. But the question Adobe never did answer is this: Would
Adobe thus agree that a consumer was free to use software to hack
around the restrictions built into the eBook Reader? If some company
(call it Elcomsoft) developed a program to disable the technological
protection built into an Adobe eBook so that a blind person, say, could
use a computer to read the book aloud, would Adobe agree that such a
use of an eBook Reader was fair? Adobe didn't answer because the
answer, however absurd it might seem, is no.
648
The point is not to blame Adobe. Indeed, Adobe is among the most
innovative companies developing strategies to balance open access to
content with incentives for companies to innovate. But Adobe's
technology enables control, and Adobe has an incentive to defend this
control. That incentive is understandable, yet what it creates is often
crazy.
649
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
650
Consider the robotic dog made by Sony named "Aibo." The Aibo learns
tricks, cuddles, and follows you around. It eats only electricity and
that doesn't leave that much of a mess (at least in your house).
651
The Aibo is expensive and popular. Fans from around the world have set
up clubs to trade stories. One fan in particular set up a Web site to
enable information about the Aibo dog to be shared. This fan set up
aibopet.com (and aibohack.com, but that resolves to the same site), and
on that site he provided information about how to teach an Aibo to do
tricks in addition to the ones Sony had taught it.
652
"Teach" here has a special meaning. Aibos are just cute computers. You
teach a computer how to do something by programming it differently. So
to say that aibopet.com was giving information about how to teach the
dog to do new tricks is just to say that aibopet.com was giving
information to users of the Aibo pet about how to hack their computer
"dog" to make it do new tricks (thus, aibohack.com).
653
If you're not a programmer or don't know many programmers, the word
hack has a particularly unfriendly connotation. Nonprogrammers
hack bushes or weeds. Nonprogrammers in horror movies do even worse.
But to programmers, or coders, as I call them, hack is a much
more positive term. Hack just means code that enables the
program to do something it wasn't originally intended or enabled to do.
If you buy a new printer for an old computer, you might find the old
computer doesn't run, or "drive," the printer. If you discovered that,
you'd later be happy to discover a hack on the Net by someone who has
written a driver to enable the computer to drive the printer you just
bought.
654
Some hacks are easy. Some are unbelievably hard. Hackers as a community
like to challenge themselves and others with increasingly difficult
tasks. There's a certain respect that goes with the talent to hack
well. There's a well-deserved respect that goes with the talent to hack
ethically.
655
The Aibo fan was displaying a bit of both when he hacked the program
and offered to the world a bit of code that would enable the Aibo to
dance jazz. The dog wasn't programmed to dance jazz. It was a clever
bit of tinkering that turned the dog into a more talented creature than
Sony had built.
656
I've told this story in many contexts, both inside and outside the
United States. Once I was asked by a puzzled member of the audience, is
it permissible for a dog to dance jazz in the United States? We forget
that stories about the backcountry still flow across much of the world.
So let's just be clear before we continue: It's not a crime anywhere
(anymore) to dance jazz. Nor is it a crime to teach your dog to dance
jazz. Nor should it be a crime (though we don't have a lot to go on
here) to teach your robot dog to dance jazz. Dancing jazz is a
completely legal activity. One imagines that the owner of aibopet.com
thought, What possible problem could there be with teaching a robot
dog to dance?
657
Let's put the dog to sleep for a minute, and turn to a pony show - not
literally a pony show, but rather a paper that a Princeton academic
named Ed Felten prepared for a conference. This Princeton academic is
well known and respected. He was hired by the government in the
Microsoft case to test Microsoft's claims about what could and could
not be done with its own code. In that trial, he demonstrated both his
brilliance and his coolness. Under heavy badgering by Microsoft
lawyers, Ed Felten stood his ground. He was not about to be bullied
into being silent about something he knew very well.
658
But Felten's bravery was really tested in April 2001.139 He
and a group of colleagues were working on a paper to be submitted at
conference. The paper was intended to describe the weakness in an
encryption system being developed by the Secure Digital Music
Initiative as a technique to control the distribution of music.
139. See Pamela Samuelson, "Anticircumvention Rules: Threat to Science,"
Science 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony
Muzzles the Techies Who Teach a Robot Dog New Tricks," American
Prospect, 1 January 2002; "Court Dismisses Computer Scientists'
Challenge to DMCA," Intellectual Property Litigation Reporter,
11 December 2001; Bill Holland, "Copyright Act Raising Free-Speech
Concerns," Billboard, 26 May 2001; Janelle Brown, "Is the RIAA
Running Scared?" Salon.com, 26 April 2001; Electronic Frontier
Foundation, "Frequently Asked Questions about Felten and USENIX v.
RIAA Legal Case," available at link #27.
659
The SDMI coalition had as its goal a technology to enable content
owners to exercise much better control over their content than the
Internet, as it originally stood, granted them. Using encryption, SDMI
hoped to develop a standard that would allow the content owner to say
"this music cannot be copied," and have a computer respect that
command. The technology was to be part of a "trusted system" of control
that would get content owners to trust the system of the Internet much
more.
660
When SDMI thought it was close to a standard, it set up a competition.
In exchange for providing contestants with the code to an
SDMI-encrypted bit of content, contestants were to try to crack it and,
if they did, report the problems to the consortium.
661
Felten and his team figured out the encryption system quickly. He and
the team saw the weakness of this system as a type: Many encryption
systems would suffer the same weakness, and Felten and his team thought
it worthwhile to point this out to those who study encryption.
662
Let's review just what Felten was doing. Again, this is the United
States. We have a principle of free speech. We have this principle not
just because it is the law, but also because it is a really great idea.
A strongly protected tradition of free speech is likely to encourage a
wide range of criticism. That criticism is likely, in turn, to improve
the systems or people or ideas criticized.
663
What Felten and his colleagues were doing was publishing a paper
describing the weakness in a technology. They were not spreading free
music, or building and deploying this technology. The paper was an
academic essay, unintelligible to most people. But it clearly showed
the weakness in the SDMI system, and why SDMI would not, as presently
constituted, succeed.
664
What links these two, aibopet.com and Felten, is the letters they then
received. Aibopet.com received a letter from Sony about the aibopet.com
hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:
665
Your site contains information providing the means to circumvent
AIBO-ware's copy protection protocol constituting a violation of the
anti-circumvention provisions of the Digital Millennium Copyright Act."
666
And though an academic paper describing the weakness in a system of
encryption should also be perfectly legal, Felten received a letter
from an RIAA lawyer that read:
667
Any disclosure of information gained from participating in the Public
Challenge would be outside the scope of activities permitted by the
Agreement and could subject you and your research team to actions under
the Digital Millennium Copyright Act ("DMCA")."
668
In both cases, this weirdly Orwellian law was invoked to control the
spread of information. The Digital Millennium Copyright Act made
spreading such information an offense.
669
The DMCA was enacted as a response to copyright owners' first fear
about cyberspace. The fear was that copyright control was effectively
dead; the response was to find technologies that might compensate.
These new technologies would be copyright protection technologies -
technologies to control the replication and distribution of copyrighted
material. They were designed as code to modify the original
code of the Internet, to reestablish some protection for
copyright owners.
670
The DMCA was a bit of law intended to back up the protection of this
code designed to protect copyrighted material. It was, we could say,
legal code intended to buttress software code which
itself was intended to support the legal code of copyright .
671
But the DMCA was not designed merely to protect copyrighted works to
the extent copyright law protected them. Its protection, that is, did
not end at the line that copyright law drew. The DMCA regulated devices
that were designed to circumvent copyright protection measures. It was
designed to ban those devices, whether or not the use of the
copyrighted material made possible by that circumvention would have
been a copyright violation.
672
Aibopet.com and Felten make the point. The Aibo hack circumvented a
copyright protection system for the purpose of enabling the dog to
dance jazz. That enablement no doubt involved the use of copyrighted
material. But as aibopet.com's site was noncommercial, and the use did
not enable subsequent copyright infringements, there's no doubt that
aibopet.com's hack was fair use of Sony's copyrighted material. Yet
fair use is not a defense to the DMCA. The question is not whether the
use of the copyrighted material was a copyright violation. The question
is whether a copyright protection system was circumvented.
673
The threat against Felten was more attenuated, but it followed the same
line of reasoning. By publishing a paper describing how a copyright
protection system could be circumvented, the RIAA lawyer suggested,
Felten himself was distributing a circumvention technology. Thus, even
though he was not himself infringing anyone's copyright, his academic
paper was enabling others to infringe others' copyright.
674
The bizarreness of these arguments is captured in a cartoon drawn in
1981 by Paul Conrad. At that time, a court in California had held that
the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology that
were legal: Fred Rogers, aka "Mr. Rogers," for example, had testified
in that case that he wanted people to feel free to tape Mr. Rogers'
Neighborhood .
675
Some public stations, as well as commercial stations, program the
"Neighborhood" at hours when some children cannot use it. I think that
it's a real service to families to be able to record such programs and
show them at appropriate times. I have always felt that with the advent
of all of this new technology that allows people to tape the
"Neighborhood" off-the-air, and I'm speaking for the "Neighborhood"
because that's what I produce, that they then become much more active
in the programming of their family's television life. Very frankly, I
am opposed to people being programmed by others. My whole approach in
broadcasting has always been "You are an important person just the way
you are. You can make healthy decisions." Maybe I'm going on too long,
but I just feel that anything that allows a person to be more active in
the control of his or her life, in a healthy way, is
important."140
140. Sony Corporation of America v. Universal City Studios, Inc.,
464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about
the VCR. See James Lardner, Fast Forward: Hollywood, the Japanese,
and the Onslaught of the VCR (New York: W. W. Norton, 1987),
270-71.
676
Even though there were uses that were legal, because there were some
uses that were illegal, the court held the companies producing the VCR
responsible.
677
This led Conrad to draw the cartoon below, which we can adopt to the
DMCA.
678
No argument I have can top this picture, but let me try to get close.
679
The anticircumvention provisions of the DMCA target copyright
circumvention technologies. Circumvention technologies can be used for
different ends. They can be used, for example, to enable massive
pirating of copyrighted material - a bad end. Or they can be used to
enable the use of particular copyrighted materials in ways that would
be considered fair use - a good end.
680
A handgun can be used to shoot a police officer or a child. Most would
agree such a use is bad. Or a handgun can be used for target practice
or to protect against an intruder. At least some would say that such a
use would be good. It, too, is a technology that has both good and bad
uses.
681
682
The obvious point of Conrad's cartoon is the weirdness of a world where
guns are legal, despite the harm they can do, while VCRs (and
circumvention technologies) are illegal. Flash: No one ever died
from copyright circumvention . Yet the law bans circumvention
technologies absolutely, despite the potential that they might do some
good, but permits guns, despite the obvious and tragic harm they do.
683
The Aibo and RIAA examples demonstrate how copyright owners are
changing the balance that copyright law grants. Using code, copyright
owners restrict fair use; using the DMCA, they punish those who would
attempt to evade the restrictions on fair use that they impose through
code. Technology becomes a means by which fair use can be erased; the
law of the DMCA backs up that erasing.
684
This is how code becomes law . The controls built into the
technology of copy and access protection become rules the violation of
which is also a violation of the law. In this way, the code extends the
law - increasing its regulation, even if the subject it regulates
(activities that would otherwise plainly constitute fair use) is beyond
the reach of the law. Code becomes law; code extends the law; code thus
extends the control that copyright owners effect - at least for those
copyright holders with the lawyers who can write the nasty letters that
Felten and aibopet.com received.
685
There is one final aspect of the interaction between architecture and
law that contributes to the force of copyright's regulation. This is
the ease with which infringements of the law can be detected. For
contrary to the rhetoric common at the birth of cyberspace that on the
Internet, no one knows you're a dog, increasingly, given changing
technologies deployed on the Internet, it is easy to find the dog who
committed a legal wrong. The technologies of the Internet are open to
snoops as well as sharers, and the snoops are increasingly good at
tracking down the identity of those who violate the rules.
686
For example, imagine you were part of a Star Trek fan club. You
gathered every month to share trivia, and maybe to enact a kind of fan
fiction about the show. One person would play Spock, another, Captain
Kirk. The characters would begin with a plot from a real story, then
simply continue it.141
141. For an early and prescient analysis, see Rebecca Tushnet, "Legal
Fictions, Copyright, Fan Fiction, and a New Common Law," Loyola of
Los Angeles Entertainment Law Journal 17 (1997): 651.
687
Before the Internet, this was, in effect, a totally unregulated
activity. No matter what happened inside your club room, you would
never be interfered with by the copyright police. You were free in that
space to do as you wished with this part of our culture. You were
allowed to build on it as you wished without fear of legal control.
688
But if you moved your club onto the Internet, and made it generally
available for others to join, the story would be very different. Bots
scouring the Net for trademark and copyright infringement would quickly
find your site. Your posting of fan fiction, depending upon the
ownership of the series that you're depicting, could well inspire a
lawyer's threat. And ignoring the lawyer's threat would be extremely
costly indeed. The law of copyright is extremely efficient. The
penalties are severe, and the process is quick.
689
This change in the effective force of the law is caused by a change in
the ease with which the law can be enforced. That change too shifts the
law's balance radically. It is as if your car transmitted the speed at
which you traveled at every moment that you drove; that would be just
one step before the state started issuing tickets based upon the data
you transmitted. That is, in effect, what is happening here.
690
Market: Concentration
691
So copyright's duration has increased dramatically - tripled in the
past thirty years. And copyright's scope has increased as well - from
regulating only publishers to now regulating just about everyone. And
copyright's reach has changed, as every action becomes a copy and hence
presumptively regulated. And as technologists find better ways to
control the use of content, and as copyright is increasingly enforced
through technology, copyright's force changes, too. Misuse is easier to
find and easier to control. This regulation of the creative process,
which began as a tiny regulation governing a tiny part of the market
for creative work, has become the single most important regulator of
creativity there is. It is a massive expansion in the scope of the
government's control over innovation and creativity; it would be
totally unrecognizable to those who gave birth to copyright's control.
692
Still, in my view, all of these changes would not matter much if it
weren't for one more change that we must also consider. This is a
change that is in some sense the most familiar, though its significance
and scope are not well understood. It is the one that creates precisely
the reason to be concerned about all the other changes I have
described.
693
This is the change in the concentration and integration of the media.
In the past twenty years, the nature of media ownership has undergone a
radical alteration, caused by changes in legal rules governing the
media. Before this change happened, the different forms of media were
owned by separate media companies. Now, the media is increasingly owned
by only a few companies. Indeed, after the changes that the FCC
announced in June 2003, most expect that within a few years, we will
live in a world where just three companies control more than 85 percent
of the media.
694
These changes are of two sorts: the scope of concentration, and its
nature.
695
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
ownership, "five companies control 85 percent of our media
sources."142 The five recording labels of Universal Music
Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI
control 84.8 percent of the U.S. music market.143 The "five
largest cable companies pipe programming to 74 percent of the cable
subscribers nationwide."144
142. FCC Oversight: Hearing Before the Senate Commerce, Science and
Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
(statement of Senator John McCain).
143. Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
Slide," New York Times, 23 December 2002.
144. Molly Ivins, "Media Consolidation Must Be Stopped," Charleston
Gazette, 31 May 2003.
696
The story with radio is even more dramatic. Before deregulation, the
nation's largest radio broadcasting conglomerate owned fewer than
seventy-five stations. Today one company owns more than 1,200
stations. During that period of consolidation, the total number of
radio owners dropped by 34 percent. Today, in most markets, the two
largest broadcasters control 74 percent of that market's revenues.
Overall, just four companies control 90 percent of the nation's radio
advertising revenues.
697
Newspaper ownership is becoming more concentrated as well. Today, there
are six hundred fewer daily newspapers in the United States than there
were eighty years ago, and ten companies control half of the nation's
circulation. There are twenty major newspaper publishers in the United
States. The top ten film studios receive 99 percent of all film
revenue. The ten largest cable companies account for 85 percent of all
cable revenue. This is a market far from the free press the framers
sought to protect. Indeed, it is a market that is quite well protected
- by the market.
698
Concentration in size alone is one thing. The more invidious change is
in the nature of that concentration. As author James Fallows put it in
a recent article about Rupert Murdoch,
699
Murdoch's companies now constitute a production system unmatched in its
integration. They supply content - Fox movies ... Fox TV shows ...
Fox-controlled sports broadcasts, plus newspapers and books. They sell
the content to the public and to advertisers - in newspapers, on the
broadcast network, on the cable channels. And they operate the physical
distribution system through which the content reaches the customers.
Murdoch's satellite systems now distribute News Corp. content in Europe
and Asia; if Murdoch becomes DirecTV's largest single owner, that
system will serve the same function in the United States."145
145. James Fallows, "The Age of Murdoch," Atlantic Monthly
(September 2003): 89.
700
The pattern with Murdoch is the pattern of modern media. Not just large
companies owning many radio stations, but a few companies owning as
many outlets of media as possible. A picture describes this pattern
better than a thousand words could do:
701
702
Does this concentration matter? Will it affect what is made, or what is
distributed? Or is it merely a more efficient way to produce and
distribute content?
703
My view was that concentration wouldn't matter. I thought it was
nothing more than a more efficient financial structure. But now, after
reading and listening to a barrage of creators try to convince me to
the contrary, I am beginning to change my mind.
704
Here's a representative story that begins to suggest how this
integration may matter.
705
In 1969, Norman Lear created a pilot for All in the Family . He
took the pilot to ABC. The network didn't like it. It was too edgy,
they told Lear. Make it again. Lear made a second pilot, more edgy than
the first. ABC was exasperated. You're missing the point, they told
Lear. We wanted less edgy, not more.
706
Rather than comply, Lear simply took the show elsewhere. CBS was happy
to have the series; ABC could not stop Lear from walking. The
copyrights that Lear held assured an independence from network
control.146
146. Leonard Hill, "The Axis of Access," remarks before Weidenbaum
Center Forum, "Entertainment Economics: The Movie Industry," St. Louis,
Missouri, 3 April 2003 (transcript of prepared remarks available at
link #28; for the Lear story, not included in the prepared remarks, see
link #29).
707
The network did not control those copyrights because the law forbade
the networks from controlling the content they syndicated. The law
required a separation between the networks and the content producers;
that separation would guarantee Lear freedom. And as late as 1992,
because of these rules, the vast majority of prime time television - 75
percent of it - was "independent" of the networks.
708
In 1994, the FCC abandoned the rules that required this independence.
After that change, the networks quickly changed the balance. In 1985,
there were twenty- five independent television production studios; in
2002, only five independent television studios remained. "In 1992, only
15 percent of new series were produced for a network by a company it
controlled. Last year, the percentage of shows produced by controlled
companies more than quintupled to 77 percent." "In 1992, 16 new series
were produced independently of conglomerate control, last year there
was one."147 In 2002, 75 percent of prime time television was
owned by the networks that ran it. "In the ten-year period between 1992
and 2002, the number of prime time television hours per week produced
by network studios increased over 200%, whereas the number of prime
time television hours per week produced by independent studios
decreased 63%."148
147. NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
Ownership Before the Senate Commerce Committee, 108th Cong., 1st sess.
(2003) (testimony of Gene Kimmelman on behalf of Consumers Union and
the Consumer Federation of America), available at link #30. Kimmelman
quotes Victoria Riskin, president of Writers Guild of America, West, in
her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
2003.
148. Ibid.
709
Today, another Norman Lear with another All in the Family would
find that he had the choice either to make the show less edgy or to be
fired: The content of any show developed for a network is increasingly
owned by the network.
710
While the number of channels has increased dramatically, the ownership
of those channels has narrowed to an ever smaller and smaller few. As
Barry Diller said to Bill Moyers,
711
Well, if you have companies that produce, that finance, that air on
their channel and then distribute worldwide everything that goes
through their controlled distribution system, then what you get is
fewer and fewer actual voices participating in the process. [We u]sed
to have dozens and dozens of thriving independent production companies
producing television programs. Now you have less than a
handful."149
149. "Barry Diller Takes on Media Deregulation," Now with Bill
Moyers, Bill Moyers, 25 April 2003, edited transcript available at
link #31.
712
This narrowing has an effect on what is produced. The product of such
large and concentrated networks is increasingly homogenous.
Increasingly safe. Increasingly sterile. The product of news shows from
networks like this is increasingly tailored to the message the network
wants to convey. This is not the communist party, though from the
inside, it must feel a bit like the communist party. No one can
question without risk of consequence - not necessarily banishment to
Siberia, but punishment nonetheless. Independent, critical, different
views are quashed. This is not the environment for a democracy.
713
Economics itself offers a parallel that explains why this integration
affects creativity. Clay Christensen has written about the "Innovator's
Dilemma": the fact that large traditional firms find it rational to
ignore new, breakthrough technologies that compete with their core
business. The same analysis could help explain why large, traditional
media companies would find it rational to ignore new cultural
trends.150 Lumbering giants not only don't, but should not,
sprint. Yet if the field is only open to the giants, there will be far
too little sprinting.
150. Clayton M. Christensen, The Innovator's Dilemma: The
Revolutionary National Bestseller that Changed the Way We Do
Business (Cambridge: Harvard Business School Press, 1997).
Christensen acknowledges that the idea was first suggested by Dean Kim
Clark. See Kim B. Clark, "The Interaction of Design Hierarchies and
Market Concepts in Technological Evolution," Research Policy 14
(1985): 235- 51. For a more recent study, see Richard Foster and Sarah
Kaplan, Creative Destruction: Why Companies That Are Built to Last
Underperform the Market - and How to Successfully Transform Them
(New York: Currency/Doubleday, 2001).
714
I don't think we know enough about the economics of the media market to
say with certainty what concentration and integration will do. The
efficiencies are important, and the effect on culture is hard to
measure.
715
But there is a quintessentially obvious example that does strongly
suggest the concern.
716
In addition to the copyright wars, we're in the middle of the drug
wars. Government policy is strongly directed against the drug cartels;
criminal and civil courts are filled with the consequences of this
battle.
717
Let me hereby disqualify myself from any possible appointment to any
position in government by saying I believe this war is a profound
mistake. I am not pro drugs. Indeed, I come from a family once wrecked
by drugs - though the drugs that wrecked my family were all quite
legal. I believe this war is a profound mistake because the collateral
damage from it is so great as to make waging the war insane. When you
add together the burdens on the criminal justice system, the
desperation of generations of kids whose only real economic
opportunities are as drug warriors, the queering of constitutional
protections because of the constant surveillance this war requires,
and, most profoundly, the total destruction of the legal systems of
many South American nations because of the power of the local drug
cartels, I find it impossible to believe that the marginal benefit in
reduced drug consumption by Americans could possibly outweigh these
costs.
718
You may not be convinced. That's fine. We live in a democracy, and it
is through votes that we are to choose policy. But to do that, we
depend fundamentally upon the press to help inform Americans about
these issues.
719
Beginning in 1998, the Office of National Drug Control Policy launched
a media campaign as part of the "war on drugs." The campaign produced
scores of short film clips about issues related to illegal drugs. In
one series (the Nick and Norm series) two men are in a bar, discussing
the idea of legalizing drugs as a way to avoid some of the collateral
damage from the war. One advances an argument in favor of drug
legalization. The other responds in a powerful and effective way
against the argument of the first. In the end, the first guy changes
his mind (hey, it's television). The plug at the end is a damning
attack on the pro-legalization campaign.
720
Fair enough. It's a good ad. Not terribly misleading. It delivers its
message well. It's a fair and reasonable message.
721
But let's say you think it is a wrong message, and you'd like to run a
countercommercial. Say you want to run a series of ads that try to
demonstrate the extraordinary collateral harm that comes from the drug
war. Can you do it?
722
Well,obviously, these ads cost lots of money. Assume you raise the
money. Assume a group of concerned citizens donates all the money in
the world to help you get your message out. Can you be sure your
message will be heard then?
723
No.You cannot. Television stations have a general policy of avoiding
"controversial" ads. Ads sponsored by the government are deemed
uncontroversial; ads disagreeing with the government are controversial.
This selectivity might be thought inconsistent with the First
Amendment, but the Supreme Court has held that stations have the right
to choose what they run. Thus, the major channels of commercial media
will refuse one side of a crucial debate the opportunity to present its
case. And the courts will defend the rights of the stations to be this
biased.151
151. The Marijuana Policy Project, in February 2003, sought to place ads
that directly responded to the Nick and Norm series on stations within
the Washington, D.C., area. Comcast rejected the ads as "against
[their] policy." The local NBC affiliate, WRC, rejected the ads without
reviewing them. The local ABC affiliate, WJOA, originally agreed to run
the ads and accepted payment to do so, but later decided not to run the
ads and returned the collected fees. Interview with Neal Levine, 15
October 2003. These restrictions are, of course, not limited to drug
policy. See, for example, Nat Ives, "On the Issue of an Iraq War,
Advocacy Ads Meet with Rejection from TV Networks," New York
Times, 13 March 2003, C4. Outside of election-related air time
there is very little that the FCC or the courts are willing to do to
even the playing field. For a general overview, see Rhonda Brown, "Ad
Hoc Access: The Regulation of Editorial Advertising on Television and
Radio," Yale Law and Policy Review 6 (1988): 449-79, and for a
more recent summary of the stance of the FCC and the courts, see
Radio-Television News Directors Association v. FCC, 184 F. 3d
872 (D.C. Cir. 1999). Municipal authorities exercise the same authority
as the networks. In a recent example from San Francisco, the San
Francisco transit authority rejected an ad that criticized its Muni
diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming
After Muni Rejects Ad," SFGate.com, 16 June 2003, available at link
#32. The ground was that the criticism was "too controversial."
724
I'd be happy to defend the networks' rights, as well - if we lived in a
media market that was truly diverse. But concentration in the media
throws that condition into doubt. If a handful of companies control
access to the media, and that handful of companies gets to decide which
political positions it will allow to be promoted on its channels, then
in an obvious and important way, concentration matters. You might like
the positions the handful of companies selects. But you should not like
a world in which a mere few get to decide which issues the rest of us
get to know about.
725
Together
726
There is something innocent and obvious about the claim of the
copyright warriors that the government should "protect my property." In
the abstract, it is obviously true and, ordinarily, totally harmless.
No sane sort who is not an anarchist could disagree.
727
But when we see how dramatically this "property" has changed - when we
recognize how it might now interact with both technology and markets to
mean that the effective constraint on the liberty to cultivate our
culture is dramatically different - the claim begins to seem less
innocent and obvious. Given (1) the power of technology to supplement
the law's control, and (2) the power of concentrated markets to weaken
the opportunity for dissent, if strictly enforcing the massively
expanded "property" rights granted by copyright fundamentally changes
the freedom within this culture to cultivate and build upon our past,
then we have to ask whether this property should be redefined.
728
Not starkly. Or absolutely. My point is not that we should abolish
copyright or go back to the eighteenth century. That would be a total
mistake, disastrous for the most important creative enterprises within
our culture today.
729
But there is a space between zero and one, Internet culture
notwithstanding. And these massive shifts in the effective power of
copyright regulation, tied to increased concentration of the content
industry and resting in the hands of technology that will increasingly
enable control over the use of culture, should drive us to consider
whether another adjustment is called for. Not an adjustment that
increases copyright's power. Not an adjustment that increases its term.
Rather, an adjustment to restore the balance that has traditionally
defined copyright's regulation - a weakening of that regulation, to
strengthen creativity.
730
Copyright law has not been a rock of Gibraltar. It's not a set of
constant commitments that, for some mysterious reason, teenagers and
geeks now flout. Instead, copyright power has grown dramatically in a
short period of time, as the technologies of distribution and creation
have changed and as lobbyists have pushed for more control by copyright
holders. Changes in the past in response to changes in technology
suggest that we may well need similar changes in the future. And these
changes have to be reductions in the scope of copyright, in
response to the extraordinary increase in control that technology and
the market enable.
731
For the single point that is lost in this war on pirates is a point
that we see only after surveying the range of these changes. When you
add together the effect of changing law, concentrated markets, and
changing technology, together they produce an astonishing conclusion:
Never in our history have fewer had a legal right to control more of
the development of our culture than now .
732
Not when copyrights were perpetual, for when copyrights were perpetual,
they affected only that precise creative work. Not when only publishers
had the tools to publish, for the market then was much more diverse.
Not when there were only three television networks, for even then,
newspapers, film studios, radio stations, and publishers were
independent of the networks. Never has copyright protected such
a wide range of rights, against as broad a range of actors, for a term
that was remotely as long. This form of regulation - a tiny regulation
of a tiny part of the creative energy of a nation at the founding - is
now a massive regulation of the overall creative process. Law plus
technology plus the market now interact to turn this historically
benign regulation into the most significant regulation of culture that
our free society has known.152
152. Siva Vaidhyanathan captures a similar point in his "four
surrenders" of copyright law in the digital age. See Vaidhyanathan,
159-60.
733
This has been a long chapter. Its point can now be briefly
stated.
734
At the start of this book, I distinguished between commercial and
noncommercial culture. In the course of this chapter, I have
distinguished between copying a work and transforming it. We can now
combine these two distinctions and draw a clear map of the changes that
copyright law has undergone.
735
In 1790, the law looked like this:
736
737
Publish Transform Commercial © Free Noncommercial Free Free
The act of publishing a map, chart, and book was regulated by copyright
law. Nothing else was. Transformations were free. And as copyright
attached only with registration, and only those who intended to benefit
commercially would register, copying through publishing of
noncommercial work was also free.
738
By the end of the nineteenth century, the law had changed to this:
739
740
Publish Transform Commercial © © Noncommercial Free Free
Derivative works were now regulated by copyright law - if published,
which again, given the economics of publishing at the time, means if
offered commercially. But noncommercial publishing and transformation
were still essentially free.
741
In 1909 the law changed to regulate copies, not publishing, and after
this change, the scope of the law was tied to technology. As the
technology of copying became more prevalent, the reach of the law
expanded. Thus by 1975, as photocopying machines became more common, we
could say the law began to look like this:
742
743
Publish Transform Commercial © © Noncommercial ©/Free Free
The law was interpreted to reach noncommercial copying through, say,
copy machines, but still much of copying outside of the commercial
market remained free. But the consequence of the emergence of digital
technologies, especially in the context of a digital network, means
that the law now looks like this:
744
745
Publish Transform Commercial © © Noncommercial © ©
Every realm is governed by copyright law, whereas before most
creativity was not. The law now regulates the full range of creativity
- commercial or not, transformative or not - with the same rules
designed to regulate commercial publishers.
746
Obviously, copyright law is not the enemy. The enemy is regulation that
does no good. So the question that we should be asking just now is
whether extending the regulations of copyright law into each of these
domains actually does any good.
747
I have no doubt that it does good in regulating commercial copying. But
I also have no doubt that it does more harm than good when regulating
(as it regulates just now) noncommercial copying and, especially,
noncommercial transformation. And increasingly, for the reasons
sketched especially in chapters 7 and 8, one might well wonder whether
it does more harm than good for commercial transformation. More
commercial transformative work would be created if derivative rights
were more sharply restricted.
748
The issue is therefore not simply whether copyright is property. Of
course copyright is a kind of "property," and of course, as with any
property, the state ought to protect it. But first impressions
notwithstanding, historically, this property right (as with all
property rights153 ) has been crafted to balance the important
need to give authors and artists incentives with the equally important
need to assure access to creative work. This balance has always been
struck in light of new technologies. And for almost half of our
tradition, the "copyright" did not control at all the freedom of
others to build upon or transform a creative work. American culture was
born free, and for almost 180 years our country consistently protected
a vibrant and rich free culture.
153. It was the single most important contribution of the legal realist
movement to demonstrate that all property rights are always crafted to
balance public and private interests. See Thomas C. Grey, "The
Disintegration of Property," in Nomos XXII: Property, J. Roland
Pennock and John W. Chapman, eds. (New York: New York University Press,
1980).
749
We achieved that free culture because our law respected important
limits on the scope of the interests protected by "property." The very
birth of "copyright" as a statutory right recognized those limits, by
granting copyright owners protection for a limited time only (the story
of chapter 6). The tradition of "fair use" is animated by a similar
concern that is increasingly under strain as the costs of exercising
any fair use right become unavoidably high (the story of chapter 7).
Adding statutory rights where markets might stifle innovation is
another familiar limit on the property right that copyright is (chapter
8). And granting archives and libraries a broad freedom to collect,
claims of property notwithstanding, is a crucial part of guaranteeing
the soul of a culture (chapter 9). Free cultures, like free markets,
are built with property. But the nature of the property that builds a
free culture is very different from the extremist vision that dominates
the debate today.
750
Free culture is increasingly the casualty in this war on piracy. In
response to a real, if not yet quantified, threat that the technologies
of the Internet present to twentieth-century business models for
producing and distributing culture, the law and technology are being
transformed in a way that will undermine our tradition of free culture.
The property right that is copyright is no longer the balanced right
that it was, or was intended to be. The property right that is
copyright has become unbalanced, tilted toward an extreme. The
opportunity to create and transform becomes weakened in a world in
which creation requires permission and creativity must check with a
lawyer.
751
PUZZLES
752
753
In a well-known short story by H. G. Wells, a mountain climber
named Nunez trips (literally, down an ice slope) into an unknown and
isolated valley in the Peruvian Andes.154 The valley is
extraordinarily beautiful, with "sweet water, pasture, an even climate,
slopes of rich brown soil with tangles of a shrub that bore an
excellent fruit." But the villagers are all blind. Nunez takes this as
an opportunity. "In the Country of the Blind," he tells himself, "the
One-Eyed Man is King." So he resolves to live with the villagers to
explore life as a king.
154. H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G.
Wells, The Country of the Blind and Other Stories, Michael
Sherborne, ed. (New York: Oxford University Press, 1996).
754
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
"blind." They don't have the word blind . They think he's just
thick. Indeed, as they increasingly notice the things he can't do (hear
the sound of grass being stepped on, for example), they increasingly
try to control him. He, in turn, becomes increasingly frustrated. "'You
don't understand,' he cried, in a voice that was meant to be great and
resolute, and which broke. 'You are blind and I can see. Leave me
alone!'"
755
The villagers don't leave him alone. Nor do they see (so to speak) the
virtue of his special power. Not even the ultimate target of his
affection, a young woman who to him seems "the most beautiful thing in
the whole of creation," understands the beauty of sight. Nunez's
description of what he sees "seemed to her the most poetical of
fancies, and she listened to his description of the stars and the
mountains and her own sweet white-lit beauty as though it was a guilty
indulgence." "She did not believe," Wells tells us, and "she could only
half understand, but she was mysteriously delighted."
756
When Nunez announces his desire to marry his "mysteriously delighted"
love, the father and the village object. "You see, my dear," her father
instructs, "he's an idiot. He has delusions. He can't do anything
right." They take Nunez to the village doctor.
757
After a careful examination, the doctor gives his opinion. "His brain
is affected," he reports.
758
"What affects it?" the father asks.
759
"Those queer things that are called the eyes ... are diseased ... in
such a way as to affect his brain."
760
The doctor continues: "I think I may say with reasonable certainty that
in order to cure him completely, all that we need to do is a simple and
easy surgical operation - namely, to remove these irritant bodies [the
eyes]."
761
"Thank Heaven for science!" says the father to the doctor. They inform
Nunez of this condition necessary for him to be allowed his bride.
(You'll have to read the original to learn what happens in the end. I
believe in free culture, but never in giving away the end of a story.)
762
It sometimes happens that the eggs of twins fuse in the mother's
womb. That fusion produces a "chimera." A chimera is a single creature
with two sets of DNA. The DNA in the blood, for example, might be
different from the DNA of the skin. This possibility is an underused
plot for murder mysteries. "But the DNA shows with 100 percent
certainty that she was not the person whose blood was at the scene.
..."
763
Before I had read about chimeras, I would have said they were
impossible. A single person can't have two sets of DNA. The very idea
of DNA is that it is the code of an individual. Yet in fact, not only
can two individuals have the same set of DNA (identical twins), but one
person can have two different sets of DNA (a chimera). Our
understanding of a "person" should reflect this reality.
764
The more I work to understand the current struggle over copyright and
culture, which I've sometimes called unfairly, and sometimes not
unfairly enough, "the copyright wars," the more I think we're dealing
with a chimera. For example, in the battle over the question "What is
p2p file sharing?" both sides have it right, and both sides have it
wrong. One side says, "File sharing is just like two kids taping each
others' records - the sort of thing we've been doing for the last
thirty years without any question at all." That's true, at least in
part. When I tell my best friend to try out a new CD that I've bought,
but rather than just send the CD, I point him to my p2p server, that
is, in all relevant respects, just like what every executive in every
recording company no doubt did as a kid: sharing music.
765
But the description is also false in part. For when my p2p server is on
a p2p network through which anyone can get access to my music, then
sure, my friends can get access, but it stretches the meaning of
"friends" beyond recognition to say "my ten thousand best friends" can
get access. Whether or not sharing my music with my best friend is what
"we have always been allowed to do," we have not always been allowed to
share music with "our ten thousand best friends."
766
Likewise, when the other side says, "File sharing is just like walking
into a Tower Records and taking a CD off the shelf and walking out with
it," that's true, at least in part. If, after Lyle Lovett (finally)
releases a new album, rather than buying it, I go to Kazaa and find a
free copy to take, that is very much like stealing a copy from Tower.
767
But it is not quite stealing from Tower. After all, when I take a CD
from Tower Records, Tower has one less CD to sell. And when I take a CD
from Tower Records, I get a bit of plastic and a cover, and something
to show on my shelves. (And, while we're at it, we could also note that
when I take a CD from Tower Records, the maximum fine that might be
imposed on me, under California law, at least, is $1,000. According to
the RIAA, by contrast, if I download a ten-song CD, I'm liable for
$1,500,000 in damages.)
768
The point is not that it is as neither side describes. The point is
that it is both - both as the RIAA describes it and as Kazaa describes
it. It is a chimera. And rather than simply denying what the other side
asserts, we need to begin to think about how we should respond to this
chimera. What rules should govern it?
769
We could respond by simply pretending that it is not a chimera. We
could, with the RIAA, decide that every act of file sharing should be a
felony. We could prosecute families for millions of dollars in damages
just because file sharing occurred on a family computer. And we can get
universities to monitor all computer traffic to make sure that no
computer is used to commit this crime. These responses might be
extreme, but each of them has either been proposed or actually
implemented.155
155. For an excellent summary, see the report prepared by GartnerG2 and
the Berkman Center for Internet and Society at Harvard Law School,
"Copy- right and Digital Media in a Post-Napster World," 27 June 2003,
available at link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L.
Berman (D-Calif.) have introduced a bill that would treat unauthorized
on-line copying as a felony offense with punishments ranging as high as
five years imprisonment; see Jon Healey, "House Bill Aims to Up Stakes
on Piracy," Los Angeles Times, 17 July 2003, available at link
#34. Civil penalties are currently set at $150,000 per copied song. For
a recent (and unsuccessful) legal challenge to the RIAA's demand that
an ISP reveal the identity of a user accused of sharing more than 600
songs through a family computer, see RIAA v. Verizon Internet
Services (In re. Verizon Internet Services), 240 F. Supp. 2d 24
(D.D.C. 2003). Such a user could face liability ranging as high as $90
million. Such astronomical figures furnish the RIAA with a powerful
arsenal in its prosecution of file sharers. Settlements ranging from
$12,000 to $17,500 for four students accused of heavy file sharing on
university networks must have seemed a mere pittance next to the $98
billion the RIAA could seek should the matter proceed to court. See
Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com, 26
August 2003, available at link #35. For an example of the RIAA's
targeting of student file sharing, and of the subpoenas issued to
universities to reveal student file-sharer identities, see James
Collins, "RIAA Steps Up Bid to Force BC, MIT to Name Students,"
Boston Globe, 8 August 2003, D3, available at link #36.
770
Alternatively, we could respond to file sharing the way many kids act
as though we've responded. We could totally legalize it. Let there be
no copyright liability, either civil or criminal, for making
copyrighted content available on the Net. Make file sharing like
gossip: regulated, if at all, by social norms but not by law.
771
Either response is possible. I think either would be a mistake. Rather
than embrace one of these two extremes, we should embrace something
that recognizes the truth in both. And while I end this book with a
sketch of a system that does just that, my aim in the next chapter is
to show just how awful it would be for us to adopt the zero-tolerance
extreme. I believe either extreme would be worse than a
reasonable alternative. But I believe the zero-tolerance solution would
be the worse of the two extremes.
772
Yet zero tolerance is increasingly our government's policy. In the
middle of the chaos that the Internet has created, an extraordinary
land grab is occurring. The law and technology are being shifted to
give content holders a kind of control over our culture that they have
never had before. And in this extremism, many an opportunity for new
innovation and new creativity will be lost.
773
I'm not talking about the opportunities for kids to "steal" music. My
focus instead is the commercial and cultural innovation that this war
will also kill. We have never seen the power to innovate spread so
broadly among our citizens, and we have just begun to see the
innovation that this power will unleash. Yet the Internet has already
seen the passing of one cycle of innovation around technologies to
distribute content. The law is responsible for this passing. As the
vice president for global public policy at one of these new innovators,
eMusic.com, put it when criticizing the DMCA's added protection for
copyrighted material,
774
eMusic opposes music piracy. We are a distributor of copyrighted
material, and we want to protect those rights.
775
But building a technology fortress that locks in the clout of the major
labels is by no means the only way to protect copyright interests, nor
is it necessarily the best. It is simply too early to answer that
question. Market forces operating naturally may very well produce a
totally different industry model.
776
This is a critical point. The choices that industry sectors make with
respect to these systems will in many ways directly shape the market
for digital media and the manner in which digital media are
distributed. This in turn will directly influence the options that are
available to consumers, both in terms of the ease with which they will
be able to access digital media and the equipment that they will
require to do so. Poor choices made this early in the game will retard
the growth of this market, hurting everyone's interests."156
156. WIPO and the DMCA One Year Later: Assessing Consumer Access to
Digital Entertainment on the Internet and Other Media: Hearing Before
the Subcommittee on Telecommunications, Trade, and Consumer Protection,
House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
Harter, vice president, Global Public Policy and Standards,
EMusic.com), available in LEXIS, Federal Document Clearing House
Congressional Testimony File.
777
In April 2001, eMusic.com was purchased by Vivendi Universal, one of
"the major labels." Its position on these matters has now changed.
778
Reversing our tradition of tolerance now will not merely quash piracy.
It will sacrifice values that are important to this culture, and will
kill opportunities that could be extraordinarily valuable.
779
780
To fight "piracy," to protect "property," the content industry
has launched a war. Lobbying and lots of campaign contributions have
now brought the government into this war. As with any war, this one
will have both direct and collateral damage. As with any war of
prohibition, these damages will be suffered most by our own people.
781
My aim so far has been to describe the consequences of this war, in
particular, the consequences for "free culture." But my aim now is to
extend this description of consequences into an argument. Is this war
justified?
782
In my view, it is not. There is no good reason why this time, for the
first time, the law should defend the old against the new, just when
the power of the property called "intellectual property" is at its
greatest in our history.
783
Yet "common sense" does not see it this way. Common sense is still on
the side of the Causbys and the content industry. The extreme claims of
control in the name of property still resonate; the uncritical
rejection of "piracy" still has play.
784
There will be many consequences of continuing this war. I want to
describe just three. All three might be said to be unintended. I am
quite confident the third is unintended. I'm less sure about the first
two. The first two protect modern RCAs, but there is no Howard
Armstrong in the wings to fight today's monopolists of culture.
785
Constraining Creators
786
In the next ten years we will see an explosion of digital technologies.
These technologies will enable almost anyone to capture and share
content. Capturing and sharing content, of course, is what humans have
done since the dawn of man. It is how we learn and communicate. But
capturing and sharing through digital technology is different. The
fidelity and power are different. You could send an e-mail telling
someone about a joke you saw on Comedy Central, or you could send the
clip. You could write an essay about the inconsistencies in the
arguments of the politician you most love to hate, or you could make a
short film that puts statement against statement. You could write a
poem to express your love, or you could weave together a string - a
mash-up - of songs from your favorite artists in a collage and make it
available on the Net.
787
This digital "capturing and sharing" is in part an extension of the
capturing and sharing that has always been integral to our culture, and
in part it is something new. It is continuous with the Kodak, but it
explodes the boundaries of Kodak-like technologies. The technology of
digital "capturing and sharing" promises a world of extraordinarily
diverse creativity that can be easily and broadly shared. And as that
creativity is applied to democracy, it will enable a broad range of
citizens to use technology to express and criticize and contribute to
the culture all around.
788
Technology has thus given us an opportunity to do something with
culture that has only ever been possible for individuals in small
groups, isolated from others. Think about an old man telling a story to
a collection of neighbors in a small town. Now imagine that same
storytelling extended across the globe.
789
Yet all this is possible only if the activity is presumptively legal.
In the current regime of legal regulation, it is not. Forget file
sharing for a moment. Think about your favorite amazing sites on the
Net. Web sites that offer plot summaries from forgotten television
shows; sites that catalog cartoons from the 1960s; sites that mix
images and sound to criticize politicians or businesses; sites that
gather newspaper articles on remote topics of science or culture. There
is a vast amount of creative work spread across the Internet. But as
the law is currently crafted, this work is presumptively illegal.
790
That presumption will increasingly chill creativity, as the examples of
extreme penalties for vague infringements continue to proliferate. It
is impossible to get a clear sense of what's allowed and what's not,
and at the same time, the penalties for crossing the line are
astonishingly harsh. The four students who were threatened by the RIAA
(Jesse Jordan of chapter 3 was just one) were threatened with a $98
billion lawsuit for building search engines that permitted songs to be
copied. Yet WorldCom - which defrauded investors of $11 billion,
resulting in a loss to investors in market capitalization of over $200
billion - received a fine of a mere $750 million.157 And under
legislation being pushed in Congress right now, a doctor who
negligently removes the wrong leg in an operation would be liable for
no more than $250,000 in damages for pain and suffering.158
Can common sense recognize the absurdity in a world where the maximum
fine for downloading two songs off the Internet is more than the fine
for a doctor's negligently butchering a patient?
157. See Lynne W. Jeter, Disconnected: Deceit and Betrayal at
WorldCom (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204;
for details of the settlement, see MCI press release, "MCI Wins U.S.
District Court Approval for SEC Settlement" (7 July 2003), available at
link #37.
158. The bill, modeled after California's tort reform model, was passed
in the House of Representatives but defeated in a Senate vote in July
2003. For an overview, see Tanya Albert, "Measure Stalls in Senate:
'We'll Be Back,' Say Tort Reformers," amednews.com, 28 July 2003,
available at link #38, and "Senate Turns Back Malpractice Caps,"
CBSNews.com, 9 July 2003, available at link #39. President Bush has
continued to urge tort reform in recent months.
791
The consequence of this legal uncertainty, tied to these extremely high
penalties, is that an extraordinary amount of creativity will either
never be exercised, or never be exercised in the open. We drive this
creative process underground by branding the modern-day Walt Disneys
"pirates." We make it impossible for businesses to rely upon a public
domain, because the boundaries of the public domain are designed to be
unclear. It never pays to do anything except pay for the right to
create, and hence only those who can pay are allowed to create. As was
the case in the Soviet Union, though for very different reasons, we
will begin to see a world of underground art - not because the message
is necessarily political, or because the subject is controversial, but
because the very act of creating the art is legally fraught. Already,
exhibits of "illegal art" tour the United States.159 In what
does their "illegality" consist? In the act of mixing the culture
around us with an expression that is critical or reflective.
159. See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July
2003, available at link #40. For an overview of the exhibition, see
link #41.
792
Part of the reason for this fear of illegality has to do with the
changing law. I described that change in detail in chapter 10. But an
even bigger part has to do with the increasing ease with which
infractions can be tracked. As users of file-sharing systems discovered
in 2002, it is a trivial matter for copyright owners to get courts to
order Internet service providers to reveal who has what content. It is
as if your cassette tape player transmitted a list of the songs that
you played in the privacy of your own home that anyone could tune into
for whatever reason they chose.
793
Never in our history has a painter had to worry about whether his
painting infringed on someone else's work; but the modern-day painter,
using the tools of Photoshop, sharing content on the Web, must worry
all the time. Images are all around, but the only safe images to use in
the act of creation are those purchased from Corbis or another image
farm. And in purchasing, censoring happens. There is a free market in
pencils; we needn't worry about its effect on creativity. But there is
a highly regulated, monopolized market in cultural icons; the right to
cultivate and transform them is not similarly free.
794
Lawyers rarely see this because lawyers are rarely empirical. As I
described in chapter 7, in response to the story about documentary
filmmaker Jon Else, I have been lectured again and again by lawyers who
insist Else's use was fair use, and hence I am wrong to say that the
law regulates such a use.
795
But fair use in America simply means the right to hire a lawyer to
defend your right to create. And as lawyers love to forget, our system
for defending rights such as fair use is astonishingly bad - in
practically every context, but especially here. It costs too much, it
delivers too slowly, and what it delivers often has little connection
to the justice underlying the claim. The legal system may be tolerable
for the very rich. For everyone else, it is an embarrassment to a
tradition that prides itself on the rule of law.
796
Judges and lawyers can tell themselves that fair use provides adequate
"breathing room" between regulation by the law and the access the law
should allow. But it is a measure of how out of touch our legal system
has become that anyone actually believes this. The rules that
publishers impose upon writers, the rules that film distributors impose
upon filmmakers, the rules that newspapers impose upon journalists -
these are the real laws governing creativity. And these rules have
little relationship to the "law" with which judges comfort themselves.
797
For in a world that threatens $150,000 for a single willful
infringement of a copyright, and which demands tens of thousands of
dollars to even defend against a copyright infringement claim, and
which would never return to the wrongfully accused defendant anything
of the costs she suffered to defend her right to speak - in that world,
the astonishingly broad regulations that pass under the name
"copyright" silence speech and creativity. And in that world, it takes
a studied blindness for people to continue to believe they live in a
culture that is free.
798
As Jed Horovitz, the businessman behind Video Pipeline, said to me,
799
We're losing [creative] opportunities right and left. Creative people
are being forced not to express themselves. Thoughts are not being
expressed. And while a lot of stuff may [still] be created, it still
won't get distributed. Even if the stuff gets made ... you're not going
to get it distributed in the mainstream media unless you've got a
little note from a lawyer saying, "This has been cleared." You're not
even going to get it on PBS without that kind of permission. That's the
point at which they control it."
800
Constraining Innovators
801
The story of the last section was a crunchy-lefty story - creativity
quashed, artists who can't speak, yada yada yada. Maybe that doesn't
get you going. Maybe you think there's enough weird art out there, and
enough expression that is critical of what seems to be just about
everything. And if you think that, you might think there's little in
this story to worry you.
802
But there's an aspect of this story that is not lefty in any sense.
Indeed, it is an aspect that could be written by the most extreme
pro-market ideologue. And if you're one of these sorts (and a special
one at that, 188 pages into a book like this), then you can see this
other aspect by substituting "free market" every place I've spoken of
"free culture." The point is the same, even if the interests affecting
culture are more fundamental.
803
The charge I've been making about the regulation of culture is the same
charge free marketers make about regulating markets. Everyone, of
course, concedes that some regulation of markets is necessary - at a
minimum, we need rules of property and contract, and courts to enforce
both. Likewise, in this culture debate, everyone concedes that at least
some framework of copyright is also required. But both perspectives
vehemently insist that just because some regulation is good, it doesn't
follow that more regulation is better. And both perspectives are
constantly attuned to the ways in which regulation simply enables the
powerful industries of today to protect themselves against the
competitors of tomorrow.
804
This is the single most dramatic effect of the shift in regulatory
strategy that I described in chapter 10. The consequence of this
massive threat of liability tied to the murky boundaries of copyright
law is that innovators who want to innovate in this space can safely
innovate only if they have the sign-off from last generation's dominant
industries. That lesson has been taught through a series of cases that
were designed and executed to teach venture capitalists a lesson. That
lesson - what former Napster CEO Hank Barry calls a "nuclear pall" that
has fallen over the Valley - has been learned.
805
Consider one example to make the point, a story whose beginning I told
in The Future of Ideas and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
806
In 1997, Michael Roberts launched a company called MP3.com. MP3.com was
keen to remake the music business. Their goal was not just to
facilitate new ways to get access to content. Their goal was also to
facilitate new ways to create content. Unlike the major labels, MP3.com
offered creators a venue to distribute their creativity, without
demanding an exclusive engagement from the creators.
807
To make this system work, however, MP3.com needed a reliable way to
recommend music to its users. The idea behind this alternative was to
leverage the revealed preferences of music listeners to recommend new
artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt.
And so on.
808
This idea required a simple way to gather data about user preferences.
MP3.com came up with an extraordinarily clever way to gather this
preference data. In January 2000, the company launched a service called
my.mp3.com. Using software provided by MP3.com, a user would sign into
an account and then insert into her computer a CD. The software would
identify the CD, and then give the user access to that content. So, for
example, if you inserted a CD by Jill Sobule, then wherever you were -
at work or at home - you could get access to that music once you signed
into your account. The system was therefore a kind of music-lockbox.
809
No doubt some could use this system to illegally copy content. But that
opportunity existed with or without MP3.com. The aim of the my.mp3.com
service was to give users access to their own content, and as a
by-product, by seeing the content they already owned, to discover the
kind of content the users liked.
810
To make this system function, however, MP3.com needed to copy 50,000
CDs to a server. (In principle, it could have been the user who
uploaded the music, but that would have taken a great deal of time, and
would have produced a product of questionable quality.) It therefore
purchased 50,000 CDs from a store, and started the process of making
copies of those CDs. Again, it would not serve the content from those
copies to anyone except those who authenticated that they had a copy of
the CD they wanted to access. So while this was 50,000 copies, it was
50,000 copies directed at giving customers something they had already
bought.
811
Nine days after MP3.com launched its service, the five major labels,
headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
with four of the five. Nine months later, a federal judge found MP3.com
to have been guilty of willful infringement with respect to the fifth.
Applying the law as it is, the judge imposed a fine against MP3.com of
$118 million. MP3.com then settled with the remaining plaintiff,
Vivendi Universal, paying over $54 million. Vivendi purchased MP3.com
just about a year later.
812
That part of the story I have told before. Now consider its conclusion.
813
After Vivendi purchased MP3.com, Vivendi turned around and filed a
malpractice lawsuit against the lawyers who had advised it that they
had a good faith claim that the service they wanted to offer would be
considered legal under copyright law. This lawsuit alleged that it
should have been obvious that the courts would find this behavior
illegal; therefore, this lawsuit sought to punish any lawyer who had
dared to suggest that the law was less restrictive than the labels
demanded.
814
The clear purpose of this lawsuit (which was settled for an unspecified
amount shortly after the story was no longer covered in the press) was
to send an unequivocal message to lawyers advising clients in this
space: It is not just your clients who might suffer if the content
industry directs its guns against them. It is also you. So those of you
who believe the law should be less restrictive should realize that such
a view of the law will cost you and your firm dearly.
815
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the venture
capital firm (VC) that had funded Napster at a certain stage of its
development, its cofounder (John Hummer), and general partner (Hank
Barry).160 The claim here, as well, was that the VC should
have recognized the right of the content industry to control how the
industry should develop. They should be held personally liable for
funding a company whose business turned out to be beyond the law. Here
again, the aim of the lawsuit is transparent: Any VC now recognizes
that if you fund a company whose business is not approved of by the
dinosaurs, you are at risk not just in the marketplace, but in the
courtroom as well. Your investment buys you not only a company, it also
buys you a lawsuit. So extreme has the environment become that even car
manufacturers are afraid of technologies that touch content. In an
article in Business 2.0 , Rafe Needleman describes a discussion
with BMW:
160. See Joseph Menn, "Universal, EMI Sue Napster Investor," Los
Angeles Times, 23 April 2003. For a parallel argument about the
effects on innovation in the distribution of music, see Janelle Brown,
"The Music Revolution Will Not Be Digitized," Salon.com, 1 June 2001,
available at link #42. See also Jon Healey, "Online Music Services
Besieged," Los Angeles Times, 28 May 2001.
816
I asked why, with all the storage capacity and computer power in the
car, there was no way to play MP3 files. I was told that BMW engineers
in Germany had rigged a new vehicle to play MP3s via the car's built-in
sound system, but that the company's marketing and legal departments
weren't comfortable with pushing this forward for release stateside.
Even today, no new cars are sold in the United States with bona fide
MP3 players. ..."161
161. Rafe Needleman, "Driving in Cars with MP3s," Business 2.0,
16 June 2003, available at link #43. I am grateful to Dr. Mohammad
Al-Ubaydli for this example.
817
This is the world of the mafia - filled with "your money or your life"
offers, governed in the end not by courts but by the threats that the
law empowers copyright holders to exercise. It is a system that will
obviously and necessarily stifle new innovation. It is hard enough to
start a company. It is impossibly hard if that company is constantly
threatened by litigation.
818
The point is not that businesses should have a right to start illegal
enterprises. The point is the definition of "illegal." The law is a
mess of uncertainty. We have no good way to know how it should apply to
new technologies. Yet by reversing our tradition of judicial deference,
and by embracing the astonishingly high penalties that copyright law
imposes, that uncertainty now yields a reality which is far more
conservative than is right. If the law imposed the death penalty for
parking tickets, we'd not only have fewer parking tickets, we'd also
have much less driving. The same principle applies to innovation. If
innovation is constantly checked by this uncertain and unlimited
liability, we will have much less vibrant innovation and much less
creativity.
819
The point is directly parallel to the crunchy-lefty point about fair
use. Whatever the "real" law is, realism about the effect of law in
both contexts is the same. This wildly punitive system of regulation
will systematically stifle creativity and innovation. It will protect
some industries and some creators, but it will harm industry and
creativity generally. Free market and free culture depend upon vibrant
competition. Yet the effect of the law today is to stifle just this
kind of competition. The effect is to produce an overregulated culture,
just as the effect of too much control in the market is to produce an
overregulated-regulated market.
820
The building of a permission culture, rather than a free culture, is
the first important way in which the changes I have described will
burden innovation. A permission culture means a lawyer's culture - a
culture in which the ability to create requires a call to your lawyer.
Again, I am not antilawyer, at least when they're kept in their proper
place. I am certainly not antilaw. But our profession has lost the
sense of its limits. And leaders in our profession have lost an
appreciation of the high costs that our profession imposes upon others.
The inefficiency of the law is an embarrassment to our tradition. And
while I believe our profession should therefore do everything it can to
make the law more efficient, it should at least do everything it can to
limit the reach of the law where the law is not doing any good. The
transaction costs buried within a permission culture are enough to bury
a wide range of creativity. Someone needs to do a lot of justifying to
justify that result.
821
The uncertainty of the law is one burden on innovation. There is
a second burden that operates more directly. This is the effort by many
in the content industry to use the law to directly regulate the
technology of the Internet so that it better protects their content.
822
The motivation for this response is obvious. The Internet enables the
efficient spread of content. That efficiency is a feature of the
Inter-net's design. But from the perspective of the content industry,
this feature is a "bug." The efficient spread of content means that
content distributors have a harder time controlling the distribution of
content. One obvious response to this efficiency is thus to make the
Internet less efficient. If the Internet enables "piracy," then, this
response says, we should break the kneecaps of the Internet.
823
The examples of this form of legislation are many. At the urging of the
content industry, some in Congress have threatened legislation that
would require computers to determine whether the content they access is
protected or not, and to disable the spread of protected
content.162 Congress has already launched proceedings to
explore a mandatory "broadcast flag" that would be required on any
device capable of transmitting digital video (i.e., a computer), and
that would disable the copying of any content that is marked with a
broadcast flag. Other members of Congress have proposed immunizing
content providers from liability for technology they might deploy that
would hunt down copyright violators and disable their
machines.163
162. "Copyright and Digital Media in a Post-Napster World," GartnerG2
and the Berkman Center for Internet and Society at Harvard Law School
(2003), 33-35, available at link #44.
163. GartnerG2, 26-27.
824
In one sense, these solutions seem sensible. If the problem is the
code, why not regulate the code to remove the problem. But any
regulation of technical infrastructure will always be tuned to the
particular technology of the day. It will impose significant burdens
and costs on the technology, but will likely be eclipsed by advances
around exactly those requirements.
825
In March 2002, a broad coalition of technology companies, led by Intel,
tried to get Congress to see the harm that such legislation would
impose.164 Their argument was obviously not that copyright
should not be protected. Instead, they argued, any protection should
not do more harm than good.
164. See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
28 February 2002 (Entertainment).
826
There is one more obvious way in which this war has harmed
innovation - again, a story that will be quite familiar to the free
market crowd.
827
Copyright may be property, but like all property, it is also a form of
regulation. It is a regulation that benefits some and harms others.
When done right, it benefits creators and harms leeches. When done
wrong, it is regulation the powerful use to defeat competitors.
828
As I described in chapter 10, despite this feature of copyright as
regulation, and subject to important qualifications outlined by Jessica
Litman in her book Digital Copyright ,165 overall this
history of copyright is not bad. As chapter 10 details, when new
technologies have come along, Congress has struck a balance to assure
that the new is protected from the old. Compulsory, or statutory,
licenses have been one part of that strategy. Free use (as in the case
of the VCR) has been another.
165. Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus
Books, 2001).
829
But that pattern of deference to new technologies has now changed with
the rise of the Internet. Rather than striking a balance between the
claims of a new technology and the legitimate rights of content
creators, both the courts and Congress have imposed legal restrictions
that will have the effect of smothering the new to benefit the old.
830
The response by the courts has been fairly universal.166 It
has been mirrored in the responses threatened and actually implemented
by Congress. I won't catalog all of those responses here.167
But there is one example that captures the flavor of them all. This is
the story of the demise of Internet radio.
166. The only circuit court exception is found in Recording Industry
Association of America (RIAA) v. Diamond Multimedia Systems, 180 F.
3d 1072 (9th Cir. 1999). There the court of appeals for the Ninth
Circuit reasoned that makers of a portable MP3 player were not liable
for contributory copyright infringement for a device that is unable to
record or redistribute music (a device whose only copying function is
to render portable a music file already stored on a user's hard drive).
At the district court level, the only exception is found in
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F.
Supp. 2d 1029 (C.D. Cal., 2003), where the court found the link between
the distributor and any given user's conduct too attenuated to make the
distributor liable for contributory or vicarious infringement
liability.
167. For example, in July 2002, Representative Howard Berman introduced
the Peer- to-Peer Piracy Prevention Act (H.R. 5211), which would
immunize copyright holders from liability for damage done to computers
when the copyright holders use technology to stop copyright
infringement. In August 2002, Representative Billy Tauzin introduced a
bill to mandate that technologies capable of rebroadcasting digital
copies of films broadcast on TV (i.e., computers) respect a "broadcast
flag" that would disable copying of that content. And in March of the
same year, Senator Fritz Hollings introduced the Consumer Broadband and
Digital Television Promotion Act, which mandated copyright protection
technology in all digital media devices. See GartnerG2, "Copyright and
Digital Media in a Post-Napster World," 27 June 2003, 33-34, available
at link #44.
831
As I described in chapter 4, when a radio station plays a song, the
recording artist doesn't get paid for that "radio performance" unless
he or she is also the composer. So, for example if Marilyn Monroe had
recorded a version of "Happy Birthday" - to memorialize her famous
performance before President Kennedy at Madison Square Garden - then
whenever that recording was played on the radio, the current copyright
owners of "Happy Birthday" would get some money, whereas Marilyn Monroe
would not.
832
The reasoning behind this balance struck by Congress makes some sense.
The justification was that radio was a kind of advertising. The
recording artist thus benefited because by playing her music, the radio
station was making it more likely that her records would be purchased.
Thus, the recording artist got something, even if only indirectly.
Probably this reasoning had less to do with the result than with the
power of radio stations: Their lobbyists were quite good at stopping
any efforts to get Congress to require compensation to the recording
artists.
833
Enter Internet radio. Like regular radio, Internet radio is a
technology to stream content from a broadcaster to a listener. The
broadcast travels across the Internet, not across the ether of radio
spectrum. Thus, I can "tune in" to an Internet radio station in Berlin
while sitting in San Francisco, even though there's no way for me to
tune in to a regular radio station much beyond the San Francisco
metropolitan area.
834
This feature of the architecture of Internet radio means that there are
potentially an unlimited number of radio stations that a user could
tune in to using her computer, whereas under the existing architecture
for broadcast radio, there is an obvious limit to the number of
broadcasters and clear broadcast frequencies. Internet radio could
therefore be more competitive than regular radio; it could provide a
wider range of selections. And because the potential audience for
Internet radio is the whole world, niche stations could easily develop
and market their content to a relatively large number of users
worldwide. According to some estimates, more than eighty million users
worldwide have tuned in to this new form of radio.
835
Internet radio is thus to radio what FM was to AM. It is an improvement
potentially vastly more significant than the FM improvement over AM,
since not only is the technology better, so, too, is the competition.
Indeed, there is a direct parallel between the fight to establish FM
radio and the fight to protect Internet radio. As one author describes
Howard Armstrong's struggle to enable FM radio,
836
An almost unlimited number of FM stations was possible in the
shortwaves, thus ending the unnatural restrictions imposed on radio in
the crowded longwaves. If FM were freely developed, the number of
stations would be limited only by economics and competition rather than
by technical restrictions. ... Armstrong likened the situation that had
grown up in radio to that following the invention of the printing
press, when governments and ruling interests attempted to control this
new instrument of mass communications by imposing restrictive licenses
on it. This tyranny was broken only when it became possible for men
freely to acquire printing presses and freely to run them. FM in this
sense was as great an invention as the printing presses, for it gave
radio the opportunity to strike off its shackles.168
168. Lessing, 239.
837
This potential for FM radio was never realized - not because Armstrong
was wrong about the technology, but because he underestimated the power
of "vested interests, habits, customs and legislation"169 to
retard the growth of this competing technology.
169. Ibid., 229.
838
Now the very same claim could be made about Internet radio. For again,
there is no technical limitation that could restrict the number of
Internet radio stations. The only restrictions on Internet radio are
those imposed by the law. Copyright law is one such law. So the first
question we should ask is, what copyright rules would govern Internet
radio?
839
But here the power of the lobbyists is reversed. Internet radio is a
new industry. The recording artists, on the other hand, have a very
powerful lobby, the RIAA. Thus when Congress considered the phenomenon
of Internet radio in 1995, the lobbyists had primed Congress to adopt a
different rule for Internet radio than the rule that applies to
terrestrial radio. While terrestrial radio does not have to pay our
hypothetical Marilyn Monroe when it plays her hypothetical recording of
"Happy Birthday" on the air, Internet radio does . Not only is
the law not neutral toward Internet radio - the law actually burdens
Internet radio more than it burdens terrestrial radio.
840
This financial burden is not slight. As Harvard law professor William
Fisher estimates, if an Internet radio station distributed ad-free
popular music to (on average) ten thousand listeners, twenty-four hours
a day, the total artist fees that radio station would owe would be over
$1 million a year.170 A regular radio station broadcasting the
same content would pay no equivalent fee.
170. This example was derived from fees set by the original Copyright
Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
example offered by Professor William Fisher. Conference Proceedings,
iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
and Zittrain submitted testimony in the CARP proceeding that was
ultimately rejected. See Jonathan Zittrain, Digital Performance Right
in Sound Recordings and Ephemeral Recordings, Docket No. 2000- 9, CARP
DTRA 1 and 2, available at link #45. For an excellent analysis making a
similar point, see Randal C. Picker, "Copyright as Entry Policy: The
Case of Digital Distribution," Antitrust Bulletin (Summer/Fall
2002): 461: "This was not confusion, these are just old- fashioned
entry barriers. Analog radio stations are protected from digital
entrants, reducing entry in radio and diversity. Yes, this is done in
the name of getting royalties to copyright holders, but, absent the
play of powerful interests, that could have been done in a
media-neutral way."
841
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio
station) would have to collect the following data from every
listening transaction :
842
843
1. name of the service;
The Librarian of Congress eventually suspended these reporting
requirements, pending further study. And he also changed the original
rates set by the arbitration panel charged with setting rates. But the
basic difference between Internet radio and terrestrial radio remains:
Internet radio has to pay a type of copyright fee that
terrestrial radio does not.
844
Why? What justifies this difference? Was there any study of the
economic consequences from Internet radio that would justify these
differences? Was the motive to protect artists against piracy?
845
In a rare bit of candor, one RIAA expert admitted what seemed obvious
to everyone at the time. As Alex Alben, vice president for Public
Policy at Real Networks, told me,
846
The RIAA, which was representing the record labels, presented some
testimony about what they thought a willing buyer would pay to a
willing seller, and it was much higher. It was ten times higher than
what radio stations pay to perform the same songs for the same period
of time. And so the attorneys representing the webcasters asked the
RIAA, ... "How do you come up with a rate that's so much higher? Why is
it worth more than radio? Because here we have hundreds of thousands of
webcasters who want to pay, and that should establish the market rate,
and if you set the rate so high, you're going to drive the small
webcasters out of business. ..."
847
And the RIAA experts said, "Well, we don't really model this as an
industry with thousands of webcasters, we think it should be an
industry with, you know, five or seven big players who can pay a high
rate and it's a stable, predictable market. " (Emphasis added.)
848
Translation: The aim is to use the law to eliminate competition, so
that this platform of potentially immense competition, which would
cause the diversity and range of content available to explode, would
not cause pain to the dinosaurs of old. There is no one, on either the
right or the left, who should endorse this use of the law. And yet
there is practically no one, on either the right or the left, who is
doing anything effective to prevent it.
849
Corrupting Citizens
850
Overregulation stifles creativity. It smothers innovation. It gives
dinosaurs a veto over the future. It wastes the extraordinary
opportunity for a democratic creativity that digital technology
enables.
851
In addition to these important harms, there is one more that was
important to our forebears, but seems forgotten today. Overregulation
corrupts citizens and weakens the rule of law.
852
The war that is being waged today is a war of prohibition. As with
every war of prohibition, it is targeted against the behavior of a very
large number of citizens. According to The New York Times , 43
million Americans downloaded music in May 2002.171 According
to the RIAA, the behavior of those 43 million Americans is a felony. We
thus have a set of rules that transform 20 percent of America into
criminals. As the RIAA launches lawsuits against not only the Napsters
and Kazaas of the world, but against students building search engines,
and increasingly against ordinary users downloading content, the
technologies for sharing will advance to further protect and hide
illegal use. It is an arms race or a civil war, with the extremes of
one side inviting a more extreme response by the other.
171. Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
Internet and American Life Project (24 April 2001), available at link
#46. The Pew Internet and American Life Project reported that 37
million Americans had downloaded music files from the Internet by early
2001.
853
The content industry's tactics exploit the failings of the American
legal system. When the RIAA brought suit against Jesse Jordan, it knew
that in Jordan it had found a scapegoat, not a defendant. The threat of
having to pay either all the money in the world in damages
($15,000,000) or almost all the money in the world to defend against
paying all the money in the world in damages ($250,000 in legal fees)
led Jordan to choose to pay all the money he had in the world ($12,000)
to make the suit go away. The same strategy animates the RIAA's suits
against individual users. In September 2003, the RIAA sued 261
individuals - including a twelve-year-old girl living in public housing
and a seventy-year-old man who had no idea what file sharing
was.172 As these scapegoats discovered, it will always cost
more to defend against these suits than it would cost to simply settle.
(The twelve year old, for example, like Jesse Jordan, paid her life
savings of $2,000 to settle the case.) Our law is an awful system for
defending rights. It is an embarrassment to our tradition. And the
consequence of our law as it is, is that those with the power can use
the law to quash any rights they oppose.
172. Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case,"
Los Angeles Times, 10 September 2003, Business.
854
Wars of prohibition are nothing new in America. This one is just
something more extreme than anything we've seen before. We experimented
with alcohol prohibition, at a time when the per capita consumption of
alcohol was 1.5 gallons per capita per year. The war against drinking
initially reduced that consumption to just 30 percent of its
preprohibition levels, but by the end of prohibition, consumption was
up to 70 percent of the preprohibition level. Americans were drinking
just about as much, but now, a vast number were criminals.173
We have launched a war on drugs aimed at reducing the consumption of
regulated narcotics that 7 percent (or 16 million) Americans now
use.174 That is a drop from the high (so to speak) in 1979 of
14 percent of the population. We regulate automobiles to the point
where the vast majority of Americans violate the law every day. We run
such a complex tax system that a majority of cash businesses regularly
cheat.175 We pride ourselves on our "free society," but an
endless array of ordinary behavior is regulated within our society. And
as a result, a huge proportion of Americans regularly violate at least
some law.
173. Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
Prohibition," American Economic Review 81, no. 2 (1991): 242.
174. National Drug Control Policy: Hearing Before the House Government
Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
John P. Walters, director of National Drug Control Policy).
175. See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
Compliance," Journal of Economic Literature 36 (1998): 818
(survey of compliance literature).
855
This state of affairs is not without consequence. It is a particularly
salient issue for teachers like me, whose job it is to teach law
students about the importance of "ethics." As my colleague Charlie
Nesson told a class at Stanford, each year law schools admit thousands
of students who have illegally downloaded music, illegally consumed
alcohol and sometimes drugs, illegally worked without paying taxes,
illegally driven cars. These are kids for whom behaving illegally is
increasingly the norm. And then we, as law professors, are supposed to
teach them how to behave ethically - how to say no to bribes, or keep
client funds separate, or honor a demand to disclose a document that
will mean that your case is over. Generations of Americans - more
significantly in some parts of America than in others, but still,
everywhere in America today - can't live their lives both normally and
legally, since "normally" entails a certain degree of illegality.
856
The response to this general illegality is either to enforce the law
more severely or to change the law. We, as a society, have to learn how
to make that choice more rationally. Whether a law makes sense depends,
in part, at least, upon whether the costs of the law, both intended and
collateral, outweigh the benefits. If the costs, intended and
collateral, do outweigh the benefits, then the law ought to be changed.
Alternatively, if the costs of the existing system are much greater
than the costs of an alternative, then we have a good reason to
consider the alternative.
857
My point is not the idiotic one: Just because people violate a law, we
should therefore repeal it. Obviously, we could reduce murder
statistics dramatically by legalizing murder on Wednesdays and Fridays.
But that wouldn't make any sense, since murder is wrong every day of
the week. A society is right to ban murder always and everywhere.
858
My point is instead one that democracies understood for generations,
but that we recently have learned to forget. The rule of law depends
upon people obeying the law. The more often, and more repeatedly, we as
citizens experience violating the law, the less we respect the law.
Obviously, in most cases, the important issue is the law, not respect
for the law. I don't care whether the rapist respects the law or not; I
want to catch and incarcerate the rapist. But I do care whether my
students respect the law. And I do care if the rules of law sow
increasing disrespect because of the extreme of regulation they impose.
Twenty million Americans have come of age since the Internet introduced
this different idea of "sharing." We need to be able to call these
twenty million Americans "citizens," not "felons."
859
When at least forty-three million citizens download content from the
Internet, and when they use tools to combine that content in ways
unauthorized by copyright holders, the first question we should be
asking is not how best to involve the FBI. The first question should be
whether this particular prohibition is really necessary in order to
achieve the proper ends that copyright law serves. Is there another way
to assure that artists get paid without transforming forty-three
million Americans into felons? Does it make sense if there are other
ways to assure that artists get paid without transforming America into
a nation of felons?
860
This abstract point can be made more clear with a particular example.
861
We all own CDs. Many of us still own phonograph records. These pieces
of plastic encode music that in a certain sense we have bought. The law
protects our right to buy and sell that plastic: It is not a copyright
infringement for me to sell all my classical records at a used record
store and buy jazz records to replace them. That "use" of the
recordings is free.
862
But as the MP3 craze has demonstrated, there is another use of
phonograph records that is effectively free. Because these recordings
were made without copy-protection technologies, I am "free" to copy, or
"rip," music from my records onto a computer hard disk. Indeed, Apple
Corporation went so far as to suggest that "freedom" was a right: In a
series of commercials, Apple endorsed the "Rip, Mix, Burn" capacities
of digital technologies.
863
This "use" of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
them in one archive. Then, using Apple's iTunes, or a wonderful program
called Andromeda, we can build different play lists of our music: Bach,
Baroque, Love Songs, Love Songs of Significant Others - the potential
is endless. And by reducing the costs of mixing play lists, these
technologies help build a creativity with play lists that is itself
independently valuable. Compilations of songs are creative and
meaningful in their own right.
864
This use is enabled by unprotected media - either CDs or records. But
unprotected media also enable file sharing. File sharing threatens (or
so the content industry believes) the ability of creators to earn a
fair return from their creativity. And thus, many are beginning to
experiment with technologies to eliminate unprotected media. These
technologies, for example, would enable CDs that could not be ripped.
Or they might enable spy programs to identify ripped content on
people's machines.
865
If these technologies took off, then the building of large archives of
your own music would become quite difficult. You might hang in hacker
circles, and get technology to disable the technologies that protect
the content. Trading in those technologies is illegal, but maybe that
doesn't bother you much. In any case, for the vast majority of people,
these protection technologies would effectively destroy the archiving
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
plastic or were part of a massively complex "digital rights management"
system.
866
If the only way to assure that artists get paid were the elimination of
the ability to freely move content, then these technologies to
interfere with the freedom to move content would be justifiable. But
what if there were another way to assure that artists are paid, without
locking down any content? What if, in other words, a different system
could assure compensation to artists while also preserving the freedom
to move content easily?
867
My point just now is not to prove that there is such a system. I offer
a version of such a system in the last chapter of this book. For now,
the only point is the relatively uncontroversial one: If a different
system achieved the same legitimate objectives that the existing
copyright system achieved, but left consumers and creators much more
free, then we'd have a very good reason to pursue this alternative -
namely, freedom. The choice, in other words, would not be between
property and piracy; the choice would be between different property
systems and the freedoms each allowed.
868
I believe there is a way to assure that artists are paid without
turning forty-three million Americans into felons. But the salient
feature of this alternative is that it would lead to a very different
market for producing and distributing creativity. The dominant few, who
today control the vast majority of the distribution of content in the
world, would no longer exercise this extreme of control. Rather, they
would go the way of the horse-drawn buggy.
869
Except that this generation's buggy manufacturers have already saddled
Congress, and are riding the law to protect themselves against this new
form of competition. For them the choice is between forty-three million
Americans as criminals and their own survival.
870
It is understandable why they choose as they do. It is not
understandable why we as a democracy continue to choose as we do. Jack
Valenti is charming; but not so charming as to justify giving up a
tradition as deep and important as our tradition of free culture.
871
There's one more aspect to this corruption that is particularly
important to civil liberties, and follows directly from any war of
prohibition. As Electronic Frontier Foundation attorney Fred von
Lohmann describes, this is the "collateral damage" that "arises
whenever you turn a very large percentage of the population into
criminals." This is the collateral damage to civil liberties generally.
872
"If you can treat someone as a putative lawbreaker," von Lohmann
explains,
873
then all of a sudden a lot of basic civil liberty protections evaporate
to one degree or another. ... If you're a copyright infringer, how can
you hope to have any privacy rights? If you're a copyright infringer,
how can you hope to be secure against seizures of your computer? How
can you hope to continue to receive Internet access? ... Our
sensibilities change as soon as we think, "Oh, well, but that person's
a criminal, a lawbreaker." Well, what this campaign against file
sharing has done is turn a remarkable percentage of the American
Internet-using population into "law-breakers."
874
And the consequence of this transformation of the American public into
criminals is that it becomes trivial, as a matter of due process, to
effectively erase much of the privacy most would presume.
875
Users of the Internet began to see this generally in 2003 as the RIAA
launched its campaign to force Internet service providers to turn over
the names of customers who the RIAA believed were violating copyright
law. Verizon fought that demand and lost. With a simple request to a
judge, and without any notice to the customer at all, the identity of
an Internet user is revealed.
876
The RIAA then expanded this campaign, by announcing a general strategy
to sue individual users of the Internet who are alleged to have
downloaded copyrighted music from file-sharing systems. But as we've
seen, the potential damages from these suits are astronomical: If a
family's computer is used to download a single CD's worth of music, the
family could be liable for $2 million in damages. That didn't stop the
RIAA from suing a number of these families, just as they had sued Jesse
Jordan.176
176. See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried
Parents Pull Plug on File 'Stealing'; With the Music Industry Cracking
Down on File Swapping, Parents are Yanking Software from Home PCs to
Avoid Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1;
Jefferson Graham, "Recording Industry Sues Parents," USA Today,
15 September 2003, 4D; John Schwartz, "She Says She's No Music Pirate.
No Snoop Fan, Either," New York Times, 25 September 2003, C1;
Margo Varadi, "Is Brianna a Criminal?" Toronto Star, 18
September 2003, P7.
877
Even this understates the espionage that is being waged by the RIAA. A
report from CNN late last summer described a strategy the RIAA had
adopted to track Napster users.177 Using a sophisticated
hashing algorithm, the RIAA took what is in effect a fingerprint of
every song in the Napster catalog. Any copy of one of those MP3s will
have the same "fingerprint."
177. See "Revealed: How RIAA Tracks Downloaders: Music Industry
Discloses Some Methods Used," CNN.com, available at link #47.
878
So imagine the following not-implausible scenario: Imagine a friend
gives a CD to your daughter - a collection of songs just like the
cassettes you used to make as a kid. You don't know, and neither does
your daughter, where these songs came from. But she copies these songs
onto her computer. She then takes her computer to college and connects
it to a college network, and if the college network is "cooperating"
with the RIAA's espionage, and she hasn't properly protected her
content from the network (do you know how to do that yourself ?), then
the RIAA will be able to identify your daughter as a "criminal." And
under the rules that universities are beginning to deploy,178
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
178. See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
Students Sued over Music Sites; Industry Group Targets File Sharing at
Colleges," Washington Post, 4 April 2003, E1; Elizabeth
Armstrong, "Students 'Rip, Mix, Burn' at Their Own Risk," Christian
Science Monitor, 2 September 2003, 20; Robert Becker and Angela
Rozas, "Music Pirate Hunt Turns to Loyola; Two Students Names Are
Handed Over; Lawsuit Possible," Chicago Tribune, 16 July 2003,
1C; Beth Cox, "RIAA Trains Antipiracy Guns on Universities,"
Internet News, 30 January 2003, available at link #48; Benny
Evangelista, "Download Warning 101: Freshman Orientation This Fall to
Include Record Industry Warnings Against File Sharing," San
Francisco Chronicle, 11 August 2003, E11; "Raid, Letters Are
Weapons at Universities," USA Today, 26 September 2000, 3D.
879
Now, of course, she'll have the right to defend herself. You can hire a
lawyer for her (at $300 per hour, if you're lucky), and she can plead
that she didn't know anything about the source of the songs or that
they came from Napster. And it may well be that the university believes
her. But the university might not believe her. It might treat this
"contraband" as presumptive of guilt. And as any number of college
students have already learned, our presumptions about innocence
disappear in the middle of wars of prohibition. This war is no
different.
880
Says von Lohmann,
881
So when we're talking about numbers like forty to sixty million
Americans that are essentially copyright infringers, you create a
situation where the civil liberties of those people are very much in
peril in a general matter. [I don't] think [there is any] analog where
you could randomly choose any person off the street and be confident
that they were committing an unlawful act that could put them on the
hook for potential felony liability or hundreds of millions of dollars
of civil liability. Certainly we all speed, but speeding isn't the kind
of an act for which we routinely forfeit civil liberties. Some people
use drugs, and I think that's the closest analog, [but] many have noted
that the war against drugs has eroded all of our civil liberties
because it's treated so many Americans as criminals. Well, I think it's
fair to say that file sharing is an order of magnitude larger number of
Americans than drug use. ... If forty to sixty million Americans have
become lawbreakers, then we're really on a slippery slope to lose a lot
of civil liberties for all forty to sixty million of them."
882
When forty to sixty million Americans are considered "criminals" under
the law, and when the law could achieve the same objective - securing
rights to authors - without these millions being considered
"criminals," who is the villain? Americans or the law? Which is
American, a constant war on our own people or a concerted effort
through our democracy to change our law?
883
BALANCES
884
So here's the picture: You're standing at the side of the road.
Your car is on fire. You are angry and upset because in part you helped
start the fire. Now you don't know how to put it out. Next to you is a
bucket, filled with gasoline. Obviously, gasoline won't put the fire
out.
885
As you ponder the mess, someone else comes along. In a panic, she grabs
the bucket. Before you have a chance to tell her to stop - or before
she understands just why she should stop - the bucket is in the air.
The gasoline is about to hit the blazing car. And the fire that
gasoline will ignite is about to ignite everything around.
886
A war about copyright rages all around - and we're all focusing
on the wrong thing. No doubt, current technologies threaten existing
businesses. No doubt they may threaten artists. But technologies
change. The industry and technologists have plenty of ways to use
technology to protect themselves against the current threats of the
Internet. This is a fire that if let alone would burn itself out.
887
Yet policy makers are not willing to leave this fire to itself. Primed
with plenty of lobbyists' money, they are keen to intervene to
eliminate the problem they perceive. But the problem they perceive is
not the real threat this culture faces. For while we watch this small
fire in the corner, there is a massive change in the way culture is
made that is happening all around.
888
Somehow we have to find a way to turn attention to this more important
and fundamental issue. Somehow we have to find a way to avoid pouring
gasoline onto this fire.
889
We have not found that way yet. Instead, we seem trapped in a simpler,
binary view. However much many people push to frame this debate more
broadly, it is the simple, binary view that remains. We rubberneck to
look at the fire when we should be keeping our eyes on the road.
890
This challenge has been my life these last few years. It has also been
my failure. In the two chapters that follow, I describe one small brace
of efforts, so far failed, to find a way to refocus this debate. We
must understand these failures if we're to understand what success will
require.
891
892
In 1995, a father was frustrated that his daughters didn't seem
to like Hawthorne. No doubt there was more than one such father, but at
least one did something about it. Eric Eldred, a retired computer
programmer living in New Hampshire, decided to put Hawthorne on the
Web. An electronic version, Eldred thought, with links to pictures and
explanatory text, would make this nineteenth-century author's work come
alive.
893
It didn't work - at least for his daughters. They didn't find Hawthorne
any more interesting than before. But Eldred's experiment gave birth to
a hobby, and his hobby begat a cause: Eldred would build a library of
public domain works by scanning these works and making them available
for free.
894
Eldred's library was not simply a copy of certain public domain works,
though even a copy would have been of great value to people across the
world who can't get access to printed versions of these works. Instead,
Eldred was producing derivative works from these public domain works.
Just as Disney turned Grimm into stories more accessible to the
twentieth century, Eldred transformed Hawthorne, and many others, into
a form more accessible - technically accessible - today.
895
Eldred's freedom to do this with Hawthorne's work grew from the same
source as Disney's. Hawthorne's Scarlet Letter had passed into
the public domain in 1907. It was free for anyone to take without the
permission of the Hawthorne estate or anyone else. Some, such as Dover
Press and Penguin Classics, take works from the public domain and
produce printed editions, which they sell in bookstores across the
country. Others, such as Disney, take these stories and turn them into
animated cartoons, sometimes successfully (Cinderella ),
sometimes not (The Hunchback of Notre Dame , Treasure
Planet ). These are all commercial publications of public domain
works.
896
The Internet created the possibility of noncommercial publications of
public domain works. Eldred's is just one example. There are literally
thousands of others. Hundreds of thousands from across the world have
discovered this platform of expression and now use it to share works
that are, by law, free for the taking. This has produced what we might
call the "noncommercial publishing industry," which before the Internet
was limited to people with large egos or with political or social
causes. But with the Internet, it includes a wide range of individuals
and groups dedicated to spreading culture generally.179
179. There's a parallel here with pornography that is a bit hard to
describe, but it's a strong one. One phenomenon that the Internet
created was a world of noncommercial pornographers - people who were
distributing porn but were not making money directly or indirectly from
that distribution. Such a class didn't exist before the Internet came
into being because the costs of distributing porn were so high. Yet
this new class of distributors got special attention in the Supreme
Court, when the Court struck down the Communications Decency Act of
1996. It was partly because of the burden on noncommercial speakers
that the statute was found to exceed Congress's power. The same point
could have been made about noncommercial publishers after the advent of
the Internet. The Eric Eldreds of the world before the Internet were
extremely few. Yet one would think it at least as important to protect
the Eldreds of the world as to protect noncommercial pornographers.
897
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
collection of poems New Hampshire was slated to pass into the
public domain. Eldred wanted to post that collection in his free public
library. But Congress got in the way. As I described in chapter 10, in
1998, for the eleventh time in forty years, Congress extended the terms
of existing copyrights - this time by twenty years. Eldred would not be
free to add any works more recent than 1923 to his collection until
2019. Indeed, no copyrighted work would pass into the public domain
until that year (and not even then, if Congress extends the term
again). By contrast, in the same period, more than 1 million patents
will pass into the public domain.
898
This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in
memory of the congressman and former musician Sonny Bono, who, his
widow, Mary Bono, says, believed that "copyrights should be
forever."180
180. The full text is: "Sonny [Bono] wanted the term of copyright
protection to last forever. I am informed by staff that such a change
would violate the Constitution. I invite all of you to work with me to
strengthen our copyright laws in all of the ways available to us. As
you know, there is also Jack Valenti's proposal for a term to last
forever less one day. Perhaps the Committee may look at that next
Congress," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
899
Eldred decided to fight this law. He first resolved to fight it through
civil disobedience. In a series of interviews, Eldred announced that he
would publish as planned, CTEA notwithstanding. But because of a second
law passed in 1998, the NET (No Electronic Theft) Act, his act of
publishing would make Eldred a felon - whether or not anyone
complained. This was a dangerous strategy for a disabled programmer to
undertake.
900
It was here that I became involved in Eldred's battle. I was a
constitutional scholar whose first passion was constitutional
interpretation. And though constitutional law courses never focus upon
the Progress Clause of the Constitution, it had always struck me as
importantly different. As you know, the Constitution says,
901
Congress has the power to promote the Progress of Science ... by
securing for limited Times to Authors ... exclusive Right to their ...
Writings. ..."
902
As I've described, this clause is unique within the power-granting
clause of Article I, section 8 of our Constitution. Every other clause
granting power to Congress simply says Congress has the power to do
something - for example, to regulate "commerce among the several
states" or "declare War." But here, the "something" is something quite
specific - to "promote ... Progress" - through means that are also
specific - by "securing" "exclusive Rights" (i.e., copyrights) "for
limited Times."
903
In the past forty years, Congress has gotten into the practice of
extending existing terms of copyright protection. What puzzled me about
this was, if Congress has the power to extend existing terms, then the
Constitution's requirement that terms be "limited" will have no
practical effect. If every time a copyright is about to expire,
Congress has the power to extend its term, then Congress can achieve
what the Constitution plainly forbids - perpetual terms "on the
installment plan," as Professor Peter Jaszi so nicely put it.
904
As an academic, my first response was to hit the books. I remember
sitting late at the office, scouring on-line databases for any serious
consideration of the question. No one had ever challenged Congress's
practice of extending existing terms. That failure may in part be why
Congress seemed so untroubled in its habit. That, and the fact that the
practice had become so lucrative for Congress. Congress knows that
copyright owners will be willing to pay a great deal of money to see
their copyright terms extended. And so Congress is quite happy to keep
this gravy train going.
905
For this is the core of the corruption in our present system of
government."Corruption" not in the sense that representatives are
bribed. Rather, "corruption" in the sense that the system induces the
beneficiaries of Congress's acts to raise and give money to Congress to
induce it to act. There's only so much time; there's only so much
Congress can do. Why not limit its actions to those things it must do -
and those things that pay? Extending copyright terms pays.
906
If that's not obvious to you, consider the following: Say you're one of
the very few lucky copyright owners whose copyright continues to make
money one hundred years after it was created. The Estate of Robert
Frost is a good example. Frost died in 1963. His poetry continues to be
extraordinarily valuable. Thus the Robert Frost estate benefits greatly
from any extension of copyright, since no publisher would pay the
estate any money if the poems Frost wrote could be published by anyone
for free.
907
So imagine the Robert Frost estate is earning $100,000 a year from
three of Frost's poems. And imagine the copyright for those poems is
about to expire. You sit on the board of the Robert Frost estate. Your
financial adviser comes to your board meeting with a very grim report:
908
"Next year," the adviser announces, "our copyrights in works A, B, and
C will expire. That means that after next year, we will no longer be
receiving the annual royalty check of $100,000 from the publishers of
those works.
909
"There's a proposal in Congress, however," she continues, "that could
change this. A few congressmen are floating a bill to extend the terms
of copyright by twenty years. That bill would be extraordinarily
valuable to us. So we should hope this bill passes."
910
"Hope?" a fellow board member says. "Can't we be doing something about
it?"
911
"Well, obviously, yes," the adviser responds. "We could contribute to
the campaigns of a number of representatives to try to assure that they
support the bill."
912
You hate politics. You hate contributing to campaigns. So you want to
know whether this disgusting practice is worth it. "How much would we
get if this extension were passed?" you ask the adviser. "How much is
it worth?"
913
"Well," the adviser says, "if you're confident that you will continue
to get at least $100,000 a year from these copyrights, and you use the
'discount rate' that we use to evaluate estate investments (6 percent),
then this law would be worth $1,146,000 to the estate."
914
You're a bit shocked by the number, but you quickly come to the correct
conclusion:
915
"So you're saying it would be worth it for us to pay more than
$1,000,000 in campaign contributions if we were confident those
contributions would assure that the bill was passed?"
916
"Absolutely," the adviser responds. "It is worth it to you to
contribute up to the 'present value' of the income you expect from
these copyrights. Which for us means over $1,000,000."
917
You quickly get the point - you as the member of the board and, I
trust, you the reader. Each time copyrights are about to expire, every
beneficiary in the position of the Robert Frost estate faces the same
choice: If they can contribute to get a law passed to extend
copyrights, they will benefit greatly from that extension. And so each
time copyrights are about to expire, there is a massive amount of
lobbying to get the copyright term extended.
918
Thus a congressional perpetual motion machine: So long as legislation
can be bought (albeit indirectly), there will be all the incentive in
the world to buy further extensions of copyright.
919
In the lobbying that led to the passage of the Sonny Bono Copyright
Term Extension Act, this "theory" about incentives was proved real. Ten
of the thirteen original sponsors of the act in the House received the
maximum contribution from Disney's political action committee; in the
Senate, eight of the twelve sponsors received
contributions.181 The RIAA and the MPAA are estimated to have
spent over $1.5 million lobbying in the 1998 election cycle. They paid
out more than $200,000 in campaign contributions.182 Disney is
estimated to have contributed more than $800,000 to reelection
campaigns in the 1998 cycle.183
181. Associated Press, "Disney Lobbying for Copyright Extension No
Mickey Mouse Effort; Congress OKs Bill Granting Creators 20 More
Years," Chicago Tribune, 17 October 1998, 22.
182. See Nick Brown, "Fair Use No More?: Copyright in the Information
Age," available at link #49.
183. Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
Congressional Quarterly This Week, 8 August 1990, available at
link #50.
920
Constitutional law is not oblivious to the obvious. Or at least,
it need not be. So when I was considering Eldred's complaint, this
reality about the never-ending incentives to increase the copyright
term was central to my thinking. In my view, a pragmatic court
committed to interpreting and applying the Constitution of our framers
would see that if Congress has the power to extend existing terms, then
there would be no effective constitutional requirement that terms be
"limited." If they could extend it once, they would extend it again and
again and again.
921
It was also my judgment that this Supreme Court would not allow
Congress to extend existing terms. As anyone close to the Supreme
Court's work knows, this Court has increasingly restricted the power of
Congress when it has viewed Congress's actions as exceeding the power
granted to it by the Constitution. Among constitutional scholars, the
most famous example of this trend was the Supreme Court's decision in
1995 to strike down a law that banned the possession of guns near
schools.
922
Since 1937, the Supreme Court had interpreted Congress's granted powers
very broadly; so, while the Constitution grants Congress the power to
regulate only "commerce among the several states" (aka "interstate
commerce"), the Supreme Court had interpreted that power to include the
power to regulate any activity that merely affected interstate
commerce.
923
As the economy grew, this standard increasingly meant that there was no
limit to Congress's power to regulate, since just about every activity,
when considered on a national scale, affects interstate commerce. A
Constitution designed to limit Congress's power was instead interpreted
to impose no limit.
924
The Supreme Court, under Chief Justice Rehnquist's command, changed
that in United States v. Lopez . The government had argued that
possessing guns near schools affected interstate commerce. Guns near
schools increase crime, crime lowers property values, and so on. In the
oral argument, the Chief Justice asked the government whether there was
any activity that would not affect interstate commerce under the
reasoning the government advanced. The government said there was not;
if Congress says an activity affects interstate commerce, then that
activity affects interstate commerce. The Supreme Court, the government
said, was not in the position to second-guess Congress.
925
"We pause to consider the implications of the government's arguments,"
the Chief Justice wrote.184 If anything Congress says is
interstate commerce must therefore be considered interstate commerce,
then there would be no limit to Congress's power. The decision in
Lopez was reaffirmed five years later in United States v.
Morrison .185
184. United States v. Lopez, 514 U.S. 549, 564 (1995).
185. United States v. Morrison, 529 U.S. 598 (2000).
926
If a principle were at work here, then it should apply to the Progress
Clause as much as the Commerce Clause.186 And if it is applied
to the Progress Clause, the principle s