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<bookinfo>
<title>Free Culture</title>
<abbrev>"freeculture"</abbrev>
<subtitle>HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
CULTURE AND CONTROL CREATIVITY</subtitle>
<pubdate>2004-03-25</pubdate>
<releaseinfo>Version 2004-02-10</releaseinfo>
<authorgroup>
<author>
<firstname>Lawrence</firstname>
<surname>Lessig</surname>
</author>
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<subjectset scheme="libraryofcongress">
<subject>
<subjectterm>Intellectual property&mdash;United States.</subjectterm>
</subject>
<subject>
<subjectterm>Mass media&mdash;United States.</subjectterm>
</subject>
<subject>
<subjectterm>Technological innovations&mdash;United States.</subjectterm>
</subject>
<subject>
<subjectterm>Art&mdash;United States.</subjectterm>
</subject>
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<publisher>
<publishername>Petter Reinholdtsen</publishername>
<address><city>Oslo</city></address>
</publisher>
<copyright>
<year>2004</year>
<holder>Lawrence Lessig</holder>
</copyright>
<legalnotice>
<para>
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</para>
<para>
This version of <citetitle>Free Culture</citetitle> is licensed under
a Creative Commons license. This license permits non-commercial use of
this work, so long as attribution is given. For more information
about the license, click the icon above, or visit
<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
</para>
</legalnotice>
<abstract>
<title>ABOUT THE AUTHOR</title>
<para>
LAWRENCE LESSIG
(<ulink url="http://www.lessig.org">http://www.lessig.org</ulink>),
professor of law and a John A. Wilson Distinguished Faculty Scholar
at Stanford Law School, is founder of the Stanford Center for Internet
and Society and is chairman of the Creative Commons
(<ulink url="http://creativecommons.org">http://creativecommons.org</ulink>).
The author of The Future of Ideas (Random House, 2001) and Code: And
Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
the boards of the Public Library of Science, the Electronic Frontier
Foundation, and Public Knowledge. He was the winner of the Free
Software Foundation's Award for the Advancement of Free Software,
twice listed in BusinessWeek's <quote>e.biz 25,</quote> and named one of Scientific
American's <quote>50 visionaries.</quote> A graduate of the University of
Pennsylvania, Cambridge University, and Yale Law School, Lessig
clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
Appeals.
</para>
</abstract>
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<biblioid class="isbn">978-82-92812-XX-Y</biblioid>
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</bookinfo>
<!-- PAGE BREAK 3 -->
<dedication id="alsobylessig">
<title>
Also by Lawrence Lessig
</title>
<para>
<!-- 2014 -->
The USA is lesterland: The nature of congressional corruption
</para>
<para>
<!-- 2011, 2012 -->
Republic, lost: How money corrupts Congress - and a plan to stop it
</para>
<para>
<!-- 2008 -->
Remix: Making art and commerce thrive in the hybrid economy
</para>
<para>
<!-- 2006 -->
Code: Version 2.0
</para>
<para>
<!-- 2001, 2002 -->
The Future of Ideas: The Fate of the Commons in a Connected World
</para>
<para>
<!-- 1999 -->
Code: And Other Laws of Cyberspace
</para>
</dedication>
<!-- PAGE BREAK 4 -->
<!-- PAGE BREAK 5 -->
<!-- PAGE BREAK 6 -->
<!-- PAGE BREAK 7 -->
<dedication><title></title>
<para>
To Eric Eldred &mdash; whose work first drew me to this cause, and for whom
it continues still.
</para>
</dedication>
<toc id="toc"></toc>
<lot>
<title>List of figures</title>
</lot>
<!--
c PREFACE xiii
c INTRODUCTION
c "PIRACY"
1 CHAPTER ONE: Creators
1 CHAPTER TWO: "Mere Copyists"
1 CHAPTER THREE: Catalogs
1 CHAPTER FOUR: "Pirates"
2 Film
2 Recorded Music
2 Radio
2 Cable TV
1 CHAPTER FIVE: "Piracy"
2 Piracy I
2 Piracy II
c "PROPERTY"
1 CHAPTER SIX: Founders
1 CHAPTER SEVEN: Recorders
1 CHAPTER EIGHT: Transformers
1 CHAPTER NINE: Collectors
1 CHAPTER TEN: "Property"
2 Why Hollywood Is Right
2 Beginnings
2 Law: Duration
2 Law: Scope
2 Law and Architecture: Reach
2 Architecture and Law: Force
2 Market: Concentration
2 Together
c PUZZLES
1 CHAPTER ELEVEN: Chimera
1 CHAPTER TWELVE: Harms
2 Constraining Creators
2 Constraining Innovators
2 Corrupting Citizens
c BALANCES
1 CHAPTER THIRTEEN: Eldred
1 CHAPTER FOURTEEN: Eldred II
c CONCLUSION
c AFTERWORD
1 Us, Now
2 Rebuilding Freedoms Previously Presumed: Examples
2 Rebuilding Free Culture: One Idea
1 Them, Soon
2 1. More Formalities
3 Registration and Renewal
3 Marking
2 2. Shorter Terms
2 3. Free Use Vs. Fair Use
2 4. Liberate the Music- -Again
2 5. Fire Lots of Lawyers 304
c NOTES
c ACKNOWLEDGMENTS
c INDEX
-->
<!-- PAGE BREAK 11 -->
<preface id="preface">
<title>PREFACE</title>
<indexterm id='idxpoguedavid' class='startofrange'><primary>Pogue, David</primary></indexterm>
<para>
<emphasis role="bold">At the end</emphasis> of his review of my first
book, <citetitle>Code: And Other Laws of Cyberspace</citetitle>, David
Pogue, a brilliant writer and author of countless technical and
computer-related texts, wrote this:
</para>
<blockquote>
<para>
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.<footnote id="preface01"><para>
David Pogue, <quote>Don't Just Chat, Do Something,</quote> <citetitle>New York Times</citetitle>, 30 January 2000.
</para></footnote>
</para>
</blockquote>
<para>
Pogue was skeptical of the core argument of the book&mdash;that
software, or <quote>code,</quote> functioned as a kind of law&mdash;and his review
suggested the happy thought that if life in cyberspace got bad, we
could always <quote>drizzle, drazzle, druzzle, drome</quote>-like simply flip a
switch and be back home. Turn off the modem, unplug the computer, and
any troubles that exist in <emphasis>that</emphasis> space wouldn't
<quote>affect</quote> us anymore.
</para>
<para>
Pogue might have been right in 1999&mdash;I'm skeptical, but maybe.
But even if he was right then, the point is not right now:
<citetitle>Free Culture</citetitle> is about the troubles the Internet
causes even after the modem is turned
<!--PAGE BREAK 12-->
off. It is an argument about how the battles that now rage regarding life
on-line have fundamentally affected <quote>people who aren't online.</quote> There
is no switch that will insulate us from the Internet's effect.
</para>
<indexterm startref='idxpoguedavid' class='endofrange'/>
<para>
But unlike <citetitle>Code</citetitle>, 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.
</para>
<para>
That tradition is the way our culture gets made. As I explain in the
pages that follow, we come from a tradition of <quote>free culture</quote>&mdash;not
<quote>free</quote> as in <quote>free beer</quote> (to borrow a phrase from the founder of the
free software movement<footnote>
<para>
Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 (Joshua Gay, ed. 2002).
</para></footnote>), but <quote>free</quote> as in <quote>free speech,</quote> <quote>free markets,</quote>
<quote>free trade,</quote> <quote>free enterprise,</quote> <quote>free will,</quote> and <quote>free elections.</quote> 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 <emphasis>as free as
possible</emphasis> 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
<quote>permission culture</quote>&mdash;a culture in which creators get to create
only with the permission of the powerful, or of creators from the
past.
</para>
<para>
If we understood this change, I believe we would resist it. Not <quote>we</quote>
on the Left or <quote>you</quote> 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.
</para>
<indexterm id='idxpowerconcentrationof' class='startofrange'><primary>power, concentration of</primary></indexterm>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
<indexterm><primary>Safire, William</primary></indexterm>
<indexterm><primary>Stevens, Ted</primary></indexterm>
<para>
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 <quote>uncomfortably alongside CodePink
Women for Peace and the National Rifle Association, between liberal
Olympia Snowe and conservative Ted Stevens,</quote> he formulated perhaps
most simply just what was at stake: the concentration of power. And as
he asked,
</para>
<blockquote>
<para>
Does that sound unconservative? Not to me. The concentration of
power&mdash;political, corporate, media, cultural&mdash;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.<footnote><para> William Safire,
<quote>The Great Media Gulp,</quote> <citetitle>New York Times</citetitle>, 22 May 2003.
<indexterm><primary>Safire, William</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
This idea is an element of the argument of <citetitle>Free Culture</citetitle>, 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&mdash;whether or not you care about the Internet, and whether you're on
Safire's left or on his right.
</para>
<indexterm startref='idxpowerconcentrationof' class='endofrange'/>
<para>
<emphasis role="strong">The inspiration</emphasis> 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 <citetitle>Free Software, Free
Society</citetitle>, 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 <quote>merely</quote> derivative.
</para>
<para>
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.
<!--PAGE BREAK 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.
</para>
<para>
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.
</para>
</preface>
<!-- PAGE BREAK 15 -->
<!-- PAGE BREAK 16 -->
<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
<indexterm id='idxwrightbrothers' class='startofrange'><primary>Wright brothers</primary></indexterm>
<para>
<emphasis role="strong">On December 17</emphasis>, 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.
</para>
<indexterm id='idxairtrafficlandownershipvs' class='startofrange'><primary>air traffic, land ownership vs.</primary></indexterm>
<indexterm id='idxlandownershipairtrafficand' class='startofrange'><primary>land ownership, air traffic and</primary></indexterm>
<indexterm id='idxpropertyrightsairtrafficvs' class='startofrange'><primary>property rights</primary><secondary>air traffic vs.</secondary></indexterm>
<para>
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 <quote>an indefinite extent, upwards.</quote><footnote><para>
St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
</para></footnote>
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?
</para>
<indexterm startref='idxwrightbrothers' class='endofrange'/>
<para>
Then came airplanes, and for the first time, this principle of American
law&mdash;deep within the foundations of our tradition, and acknowledged
by the most important legal thinkers of our past&mdash;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?
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
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 <quote>an indefinite
extent, upwards,</quote> then the government was trespassing on their
property, and the Causbys wanted it to stop.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm id='idxdouglaswilliamo' class='startofrange'><primary>Douglas, William O.</primary></indexterm>
<indexterm id='idxsupremecourtusonairspacevslandrights' class='startofrange'><primary>Supreme Court, U.S.</primary><secondary>on airspace vs. land rights</secondary></indexterm>
<para>
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
<quote>taking</quote> of property without compensation. The Court acknowledged
that <quote>it is ancient doctrine that common law ownership of
the land extended to the periphery of the universe.</quote> 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,
</para>
<blockquote>
<para>
[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.<footnote>
<para>
United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
that there could be a <quote>taking</quote> 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, <quote>(Intellectual)
Property and Sovereignty: Notes Toward a Cultural Geography of
Authorship,</quote> <citetitle>Stanford Law Review</citetitle> 48 (1996): 1293, 1333. See also Paul
Goldstein, <citetitle>Real Property</citetitle> (Mineola, N.Y.: Foundation Press, 1984),
1112&ndash;13.
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
<quote>Common sense revolts at the idea.</quote>
</para>
<indexterm startref='idxdouglaswilliamo' class='endofrange'/>
<para>
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
<!--PAGE BREAK 18-->
conclusion that Douglas holds in a single line: <quote>Common sense revolts
at the idea.</quote> 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.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm><primary>Wright brothers</primary></indexterm>
<para>
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 <quote>what
seemed reasonable</quote> 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 <quote>obvious</quote> to everyone else&mdash;the power of
<quote>common sense</quote>&mdash;would prevail. Their <quote>private interest</quote> would not be
allowed to defeat an obvious public gain.
</para>
<indexterm startref='idxairtrafficlandownershipvs' class='endofrange'/>
<indexterm startref='idxlandownershipairtrafficand' class='endofrange'/>
<indexterm startref='idxpropertyrightsairtrafficvs' class='endofrange'/>
<indexterm startref='idxsupremecourtusonairspacevslandrights' class='endofrange'/>
<indexterm id='idxarmstrongedwinhoward' class='startofrange'><primary>Armstrong, Edwin Howard</primary></indexterm>
<indexterm><primary>Bell, Alexander Graham</primary></indexterm>
<indexterm><primary>Edison, Thomas</primary></indexterm>
<indexterm><primary>Faraday, Michael</primary></indexterm>
<indexterm id='idxradiofmspectrumof' class='startofrange'><primary>radio</primary><secondary>FM spectrum of</secondary></indexterm>
<para>
<emphasis role='strong'>Edwin Howard Armstrong</emphasis> 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.
<!-- PAGE BREAK 19 -->
</para>
<para>
On the day after Christmas, 1933, four patents were issued to Armstrong
for his most significant invention&mdash;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.
</para>
<para>
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:
<quote>This is amateur station W2AG at Yonkers, New York, operating on
frequency modulation at two and a half meters.</quote>
</para>
<para>
The audience was hearing something no one had thought possible:
</para>
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
sounded like a glass of water being poured. &hellip; A paper was crumpled
and torn; it sounded like paper and not like a crackling forest
fire. &hellip; Sousa marches were played from records and a piano solo
and guitar number were performed. &hellip; The music was projected with a
live-ness rarely if ever heard before from a radio <quote>music
box.</quote><footnote><para>
Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
</para>
</blockquote>
<indexterm id='idxrca' class='startofrange'><primary>RCA</primary></indexterm>
<indexterm id='idxmediaownershipconcentrationin' class='startofrange'><primary>media</primary><secondary>ownership concentration in</secondary></indexterm>
<para>
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.
<!--PAGE BREAK 20-->
</para>
<indexterm><primary>Sarnoff, David</primary></indexterm>
<para>
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 <quote>radio.</quote> But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
</para>
<blockquote>
<para>
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&mdash; start up a whole damn new industry to compete with
RCA.<footnote><para> See <quote>Saints: The Heroes and Geniuses of the
Electronic Era,</quote> First Electronic Church of America, at
www.webstationone.com/fecha, available at
<ulink url="http://free-culture.cc/notes/">link #1</ulink>.
</para></footnote>
</para>
</blockquote>
<indexterm id='idxfmradio' class='startofrange'><primary>FM radio</primary></indexterm>
<indexterm><primary>Sarnoff, David</primary></indexterm>
<para>
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,
</para>
<indexterm id='idxlessinglawrence' class='startofrange'><primary>Lessing, Lawrence</primary></indexterm>
<blockquote>
<para>
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 &hellip; a complete reordering of radio power
&hellip; and the eventual overthrow of the carefully restricted AM system
on which RCA had grown to power.<footnote><para>Lessing, 226.
</para></footnote>
</para>
</blockquote>
<indexterm id='idxfcconfmradio' class='startofrange'><primary>FCC</primary><secondary>on FM radio</secondary></indexterm>
<para>
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&mdash;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,
</para>
<!-- PAGE BREAK 21 -->
<blockquote>
<para>
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.<footnote><para>
Lessing, 256.
</para></footnote>
</para>
</blockquote>
<indexterm startref='idxlessinglawrence' class='endofrange'/>
<indexterm><primary>AT&amp;T</primary></indexterm>
<para>
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&amp;T, because the loss of
FM relaying stations would mean radio stations would have to buy
wired links from AT&amp;T.) The spread of FM radio was thus choked, at
least temporarily.
</para>
<indexterm startref='idxradiofmspectrumof' class='endofrange'/>
<indexterm startref='idxfcconfmradio' class='endofrange'/>
<para>
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&mdash;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.
</para>
<indexterm startref='idxfmradio' class='endofrange'/>
<indexterm startref='idxarmstrongedwinhoward' class='endofrange'/>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
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
<!--PAGE BREAK 22-->
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.
</para>
<indexterm startref='idxrca' class='endofrange'/>
<indexterm startref='idxmediaownershipconcentrationin' class='endofrange'/>
<indexterm id='idxinternetdevelopmentof' class='startofrange'><primary>Internet</primary><secondary>development of</secondary></indexterm>
<para>
<emphasis role="strong">There's no</emphasis> 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.<footnote><para>
Amanda Lenhart, <quote>The Ever-Shifting Internet Population: A New Look at
Internet Access and the Digital Divide,</quote> Pew Internet and American
Life Project, 15 April 2003: 6, available at
<ulink url="http://free-culture.cc/notes/">link #2</ulink>.
</para></footnote>
That number could well exceed two thirds of the nation by the end
of 2004.
</para>
<para>
As the Internet has been integrated into ordinary life, it has
changed things. Some of these changes are technical&mdash;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.
</para>
<para>
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.
</para>
<indexterm startref='idxinternetdevelopmentof' class='endofrange'/>
<indexterm><primary>Barlow, Joel</primary></indexterm>
<indexterm id='idxculturecommercialvsnoncommercial' class='startofrange'><primary>culture</primary><secondary>commercial vs. noncommercial</secondary></indexterm>
<indexterm><primary>Webster, Noah</primary></indexterm>
<para>
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 <quote>commercial culture</quote> I mean that part of our
culture that is produced and sold or produced to be sold. By
<quote>noncommercial culture</quote> I mean all the rest. When old men sat around
parks or on
<!-- PAGE BREAK 23 -->
street corners telling stories that kids and others consumed, that was
noncommercial culture. When Noah Webster published his <quote>Reader,</quote> or
Joel Barlow his poetry, that was commercial culture.
</para>
<para>
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 <quote>free.</quote> The ordinary ways in which ordinary
individuals shared and transformed their culture&mdash;telling
stories, reenacting scenes from plays or TV, participating in fan
clubs, sharing music, making tapes&mdash;were left alone by the law.
</para>
<indexterm id='idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>commercial creativity as primary purpose of</secondary></indexterm>
<para>
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.<footnote>
<para>
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, <quote>The Right to Privacy,</quote> Harvard Law Review 4 (1890): 193,
198&ndash;200.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</para></footnote>
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.
</para>
<indexterm><primary>free culture</primary><secondary> permission culture vs.</secondary></indexterm>
<indexterm><primary>permission culture</primary><secondary> free culture vs.</secondary></indexterm>
<para>
This rough divide between the free and the controlled has now
been erased.<footnote><para>
See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: Prometheus Books,
2001), ch. 13.
<indexterm><primary>Litman, Jessica</primary></indexterm>
</para></footnote>
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&mdash;between uses of our culture that were
free and uses of our culture that were only upon permission&mdash;has
been undone. The consequence is that we are less and less a free
culture, more and more a permission culture.
</para>
<!-- PAGE BREAK 24 -->
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm><primary>protection of artists vs. business interests</primary></indexterm>
<para>
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.
</para>
<indexterm startref='idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof' class='endofrange'/>
<para>
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&mdash;all so long as the RCAs of our day don't
use the law to protect themselves against this competition.
</para>
<para>
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.
</para>
<indexterm startref='idxculturecommercialvsnoncommercial' class='endofrange'/>
<indexterm><primary>Valenti, Jack</primary><secondary> on creative property rights</secondary></indexterm>
<para>
It doesn't seem this way to many. The battles over copyright and the
<!-- PAGE BREAK 25 -->
Internet seem remote to most. To the few who follow them, they seem
mainly about a much simpler brace of questions&mdash;whether <quote>piracy</quote> will
be permitted, and whether <quote>property</quote> will be protected. The <quote>war</quote> that
has been waged against the technologies of the Internet&mdash;what
Motion Picture Association of America (MPAA) president Jack Valenti
calls his <quote>own terrorist war</quote><footnote><para>
Amy Harmon, <quote>Black Hawk Download: Moving Beyond Music, Pirates
Use New Tools to Turn the Net into an Illicit Video Club,</quote> <citetitle>New York
Times</citetitle>, 17 January 2002.
</para></footnote>&mdash;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.
</para>
<para>
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
<quote>creative property.</quote> I believe that <quote>piracy</quote> is wrong, and that the
law, properly tuned, should punish <quote>piracy,</quote> whether on or off the
Internet.
</para>
<para>
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 <quote>pirates</quote> will also rid our
culture of values that have been integral to our tradition from the start.
</para>
<indexterm><primary>Constitution, U.S.</primary><secondary>First Amendment to</secondary></indexterm>
<indexterm><primary>copyright law</primary><secondary>as protection of creators</secondary></indexterm>
<indexterm><primary>First Amendment</primary></indexterm>
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<para>
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,<footnote>
<para>
Neil W. Netanel, <quote>Copyright and a Democratic Civil Society,</quote> <citetitle>Yale Law
Journal</citetitle> 106 (1996): 283.
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
</para></footnote>
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.
</para>
<para>
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&ndash;like,
for permission first. Permission is, of course, often
granted&mdash;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.
</para>
<!-- PAGE BREAK 26. FIXME: Ask author if "Is it" should be "It is" ? -->
<para>
The story that follows is about this war. It is not about the
<quote>centrality of technology</quote> 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.
</para>
<para>
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.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm id='idxintellectualpropertyrights' class='startofrange'><primary>intellectual property rights</primary></indexterm>
<para>
<emphasis role="strong">Like the Causbys'</emphasis> battle, this war is, in part, about <quote>property.</quote> 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 <quote>property</quote> 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 <quote>intellectual property</quote> 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
<quote>trespassing</quote> upon legitimate claims of <quote>property.</quote> It is as plain to
us as it was to them that the law should intervene to stop this
trespass.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm><primary>Wright brothers</primary></indexterm>
<para>
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
<!--PAGE BREAK 27-->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
</para>
<indexterm><primary>power, concentration of</primary></indexterm>
<para>
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 <quote>culture</quote> was as <quote>owned</quote> as it is now. And yet there has never
been a time when the concentration of power to control the
<emphasis>uses</emphasis> of culture has been as unquestioningly
accepted as it is now.
</para>
<para>
The puzzle is, Why? Is it because we have come to understand a truth
about the value and importance of absolute property over ideas and
culture? Is it because we have discovered that our tradition of
rejecting such an absolute claim was wrong?
</para>
<para>
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?
</para>
<para>
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?
</para>
<para>
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?
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
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 <quote>intellectual
property.</quote> 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.
<!-- PAGE BREAK 28 -->
</para>
<indexterm startref='idxintellectualpropertyrights' class='endofrange'/>
<para>
<emphasis role="strong">The struggle</emphasis> that rages just now centers on two ideas: <quote>piracy</quote> and
<quote>property.</quote> My aim in this book's next two parts is to explore these two
ideas.
</para>
<para>
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&mdash;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.
</para>
<para>
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 <quote>something new,</quote> is
destroying something very old. Rather than understanding the changes
the Internet might permit, and rather than taking time to let <quote>common
sense</quote> resolve how best to respond, we are allowing those most
threatened by the changes to use their power to change the
law&mdash;and more importantly, to use their power to change something
fundamental about who we have always been.
</para>
<para>
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&mdash;a consequence
to which most of us remain oblivious.
</para>
</chapter>
<!-- PAGE BREAK 29 -->
<part id="c-piracy">
<title><quote>PIRACY</quote></title>
<partintro>
<!-- PAGE BREAK 30 -->
<indexterm><primary>copyright law</primary><secondary>English</secondary></indexterm>
<indexterm id='idxmansfieldwilliammurraylord' class='startofrange'><primary>Mansfield, William Murray, Lord</primary></indexterm>
<indexterm><primary>music publishing</primary></indexterm>
<indexterm><primary>sheet music</primary></indexterm>
<para>
<emphasis role="strong">Since the inception</emphasis> of the law regulating creative property, there has
been a war against <quote>piracy.</quote> The precise contours of this concept,
<quote>piracy,</quote> 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,
</para>
<blockquote>
<para>
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.<footnote><para>
<!-- f1 -->
<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777) (Mansfield).
</para></footnote>
</para>
<indexterm startref='idxmansfieldwilliammurraylord' class='endofrange'/>
</blockquote>
<indexterm><primary>Internet</primary><secondary> efficient content distribution on</secondary></indexterm>
<indexterm id='idxpeertopeerppfilesharingefficiencyof' class='startofrange'><primary>peer-to-peer (p2p) file sharing</primary><secondary>efficiency of</secondary></indexterm>
<para>
Today we are in the middle of another <quote>war</quote> against <quote>piracy.</quote> 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.
<!-- PAGE BREAK 31 -->
</para>
<para>
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 <quote>rob the author of the
profit.</quote>
</para>
<indexterm startref='idxpeertopeerppfilesharingefficiencyof' class='endofrange'/>
<para>
The warriors have turned to the courts, to the legislatures, and
increasingly to technology to defend their <quote>property</quote> against this
<quote>piracy.</quote> A generation of Americans, the warriors warn, is being
raised to believe that <quote>property</quote> should be <quote>free.</quote> Forget tattoos,
never mind body piercing&mdash;our kids are becoming
<emphasis>thieves</emphasis>!
</para>
<para>
There's no doubt that <quote>piracy</quote> is wrong, and that pirates should be
punished. But before we summon the executioners, we should put this
notion of <quote>piracy</quote> in some context. For as the concept is increasingly
used, at its core is an extraordinary idea that is almost certainly wrong.
</para>
<para>
The idea goes something like this:
</para>
<blockquote>
<para>
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.
</para>
</blockquote>
<indexterm><primary>ASCAP</primary></indexterm>
<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
<indexterm><primary>Girl Scouts</primary></indexterm>
<indexterm id='idxcreativepropertyifvaluethenrighttheoryof' class='startofrange'><primary>creative property</primary><secondary><quote>if value, then right</quote> theory of</secondary></indexterm>
<indexterm id='idxifvaluethenrighttheory' class='startofrange'><primary><quote>if value, then right</quote> theory</primary></indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote>
theory of creative property<footnote><para>
<!-- f2 -->
See Rochelle Dreyfuss, <quote>Expressive Genericity: Trademarks as Language
in the Pepsi Generation,</quote> <citetitle>Notre Dame Law Review</citetitle> 65 (1990): 397.
</para></footnote>
&mdash;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.<footnote><para>
<!-- f3 -->
Lisa Bannon, <quote>The Birds May Sing, but Campers Can't Unless They Pay
Up,</quote> <citetitle>Wall Street Journal</citetitle>, 21 August 1996, available at
<ulink url="http://free-culture.cc/notes/">link #3</ulink>; Jonathan
Zittrain, <quote>Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins,</quote> <citetitle>Boston Globe</citetitle>, 24 November 2002.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
There was <quote>value</quote> (the songs) so there must have been a
<quote>right</quote>&mdash;even against the Girl Scouts.
</para>
<indexterm startref='idxcreativepropertyifvaluethenrighttheoryof' class='endofrange'/>
<para>
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
<!-- PAGE BREAK 32 -->
of law protecting creative property. But the <quote>if value, then right</quote>
theory of creative property has never been America's theory of
creative property. It has never taken hold within our law.
</para>
<indexterm startref='idxifvaluethenrighttheory' class='endofrange'/>
<indexterm id='idxcopyrightlawonrepublishingvstransformationoforiginalwork' class='startofrange'><primary>copyright law</primary><secondary>on republishing vs. transformation of original work</secondary></indexterm>
<indexterm id='idxcreativitylegalrestrictionson' class='startofrange'><primary>creativity</primary><secondary>legal restrictions on</secondary></indexterm>
<para>
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.
</para>
<para>
The source of this confusion is a distinction that the law no longer
takes care to draw&mdash;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.
</para>
<indexterm startref='idxcopyrightlawonrepublishingvstransformationoforiginalwork' class='endofrange'/>
<para>
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&mdash;even the burden of the
Byzantine complexity that copyright law has become. It was just one
more expense of doing business.
</para>
<indexterm><primary>copyright law</primary><secondary>creativity impeded by</secondary></indexterm>
<indexterm><primary>Florida, Richard</primary></indexterm>
<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
<para>
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
<quote>copying,</quote> 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&mdash;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
<!-- PAGE BREAK 33 -->
be seeing, as Richard Florida writes, the <quote>Rise of the Creative
Class.</quote><footnote>
<para>
<!-- f4 -->
In <citetitle>The Rise of the Creative Class</citetitle> (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.
<indexterm><primary>Florida, Richard</primary></indexterm>
<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
</para>
<indexterm startref='idxcreativitylegalrestrictionson' class='endofrange'/>
<para>
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 <quote>piracy.</quote>
</para>
</partintro>
<!-- PAGE BREAK 34 -->
<chapter label="1" id="creators">
<title>CHAPTER ONE: Creators</title>
<indexterm id='idxanimatedcartoons' class='startofrange'><primary>animated cartoons</primary></indexterm>
<indexterm id='idxcartoonfilms' class='startofrange'><primary>cartoon films</primary></indexterm>
<indexterm id='idxfilmsanimated' class='startofrange'><primary>films</primary><secondary>animated</secondary></indexterm>
<indexterm id='idxsteamboatwillie' class='startofrange'><primary>Steamboat Willie</primary></indexterm>
<indexterm id='idxmickeymouse' class='startofrange'><primary>Mickey Mouse</primary></indexterm>
<para>
<emphasis role="strong">In 1928</emphasis>, a cartoon character was born. An early Mickey Mouse
made his debut in May of that year, in a silent flop called <citetitle>Plane Crazy</citetitle>.
In November, in New York City's Colony Theater, in the first widely
distributed cartoon synchronized with sound, <citetitle>Steamboat Willie</citetitle> brought
to life the character that would become Mickey Mouse.
</para>
<indexterm id='idxdisneywalt' class='startofrange'><primary>Disney, Walt</primary></indexterm>
<para>
Synchronized sound had been introduced to film a year earlier in the
movie <citetitle>The Jazz Singer</citetitle>. 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,
</para>
<blockquote>
<para>
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.
<!-- PAGE BREAK 35 -->
</para>
<para>
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.
</para>
<para>
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!<footnote><para>
<!-- f1 -->
Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated
Cartoons</citetitle> (New York: Penguin Books, 1987), 34&ndash;35.
</para></footnote>
</para>
</blockquote>
<indexterm><primary>Iwerks, Ub</primary></indexterm>
<para>
Disney's then partner, and one of animation's most extraordinary
talents, Ub Iwerks, put it more strongly: <quote>I have never been so thrilled
in my life. Nothing since has ever equaled it.</quote>
</para>
<para>
Disney had created something very new, based upon something relatively
new. Synchronized sound brought life to a form of creativity that had
rarely&mdash;except in Disney's hands&mdash;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.
</para>
<indexterm startref='idxdisneywalt' class='endofrange'/>
<indexterm id='idxkeatonbuster' class='startofrange'><primary>Keaton, Buster</primary></indexterm>
<indexterm id='idxsteamboatbilljr' class='startofrange'><primary>Steamboat Bill, Jr.</primary></indexterm>
<para>
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 <citetitle>Steamboat Bill, Jr</citetitle>.
</para>
<para>
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. <citetitle>Steamboat Bill,
Jr</citetitle>. was a classic of this form, famous among film buffs for its
incredible stunts. The film was classic Keaton&mdash;wildly popular
and among the best of its genre.
</para>
<indexterm id='idxderivativeworkspiracyvs' class='startofrange'><primary>derivative works</primary><secondary>piracy vs.</secondary></indexterm>
<indexterm id='idxpiracyderivativeworkvs' class='startofrange'><primary>piracy</primary><secondary>derivative work vs.</secondary></indexterm>
<para>
<citetitle>Steamboat Bill, Jr</citetitle>. appeared before Disney's cartoon Steamboat
Willie.
<!-- PAGE BREAK 36 -->
The coincidence of titles is not coincidental. Steamboat Willie is a
direct cartoon parody of Steamboat Bill,<footnote><para>
<!-- f2 -->
I am grateful to David Gerstein and his careful history, described at
<ulink url="http://free-culture.cc/notes/">link #4</ulink>.
According to Dave Smith of the Disney Archives, Disney paid royalties to
use the music for five songs in <citetitle>Steamboat Willie</citetitle>: <quote>Steamboat Bill,</quote> <quote>The
Simpleton</quote> (Delille), <quote>Mischief Makers</quote> (Carbonara), <quote>Joyful Hurry No. 1</quote>
(Baron), and <quote>Gawky Rube</quote> (Lakay). A sixth song, <quote>The Turkey in the
Straw,</quote> was already in the public domain. Letter from David Smith to
Harry Surden, 10 July 2003, on file with author.
</para></footnote>
and both are built upon a common song as a source. It is not just from
the invention of synchronized sound in <citetitle>The Jazz Singer</citetitle> that we
get <citetitle>Steamboat Willie</citetitle>. It is also from Buster Keaton's invention of
Steamboat Bill, Jr., itself inspired by the song <quote>Steamboat Bill,</quote>
that we get Steamboat Willie, and then from Steamboat Willie, Mickey
Mouse.
</para>
<indexterm startref='idxsteamboatwillie' class='endofrange'/>
<indexterm startref='idxmickeymouse' class='endofrange'/>
<indexterm startref='idxkeatonbuster' class='endofrange'/>
<indexterm startref='idxsteamboatbilljr' class='endofrange'/>
<indexterm id='idxcreativitybytransformingpreviousworks' class='startofrange'><primary>creativity</primary><secondary>by transforming previous works</secondary></indexterm>
<indexterm id='idxdisneyinc' class='startofrange'><primary>Disney, Inc.</primary></indexterm>
<para>
This <quote>borrowing</quote> was nothing unique, either for Disney or for the
industry. Disney was always parroting the feature-length mainstream
films of his day.<footnote><para>
<!-- f3 -->
He was also a fan of the public domain. See Chris Sprigman, <quote>The Mouse
that Ate the Public Domain,</quote> Findlaw, 5 March 2002, at
<ulink url="http://free-culture.cc/notes/">link #5</ulink>.
</para></footnote>
So did many others. Early cartoons are filled with
knockoffs&mdash;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.
</para>
<indexterm id='idxgrimmfairytales' class='startofrange'><primary>Grimm fairy tales</primary></indexterm>
<para>
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.
</para>
<para>
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: <citetitle>Snow White</citetitle>
(1937), <citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> (1940), <citetitle>Dumbo</citetitle>
(1941), <citetitle>Bambi</citetitle> (1942), <citetitle>Song of the South</citetitle> (1946),
<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in Wonderland</citetitle> (1951), <citetitle>Robin
Hood</citetitle> (1952), <citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the Tramp</citetitle>
<!-- PAGE BREAK 37 -->
(1955), <citetitle>Mulan</citetitle> (1998), <citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101
Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> (1963), and
<citetitle>The Jungle Book</citetitle> (1967)&mdash;not to mention a recent example
that we should perhaps quickly forget, <citetitle>Treasure Planet</citetitle>
(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.
</para>
<indexterm startref='idxgrimmfairytales' class='endofrange'/>
<para>
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 <quote>Disney creativity,</quote> though that
would be a bit misleading. It is, more precisely, <quote>Walt Disney
creativity</quote>&mdash;a form of expression and genius that builds upon the
culture around us and makes it something different.
</para>
<indexterm startref='idxderivativeworkspiracyvs' class='endofrange'/>
<indexterm startref='idxpiracyderivativeworkvs' class='endofrange'/>
<indexterm startref='idxcreativitybytransformingpreviousworks' class='endofrange'/>
<indexterm id='idxcopyrightdurationof' class='startofrange'><primary>copyright</primary><secondary>duration of</secondary></indexterm>
<indexterm id='idxpublicdomaindefined' class='startofrange'><primary>public domain</primary><secondary>defined</secondary></indexterm>
<indexterm id='idxpublicdomaintraditionaltermforconversionto' class='startofrange'><primary>public domain</primary><secondary>traditional term for conversion to</secondary></indexterm>
<para> 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&mdash;for that minority of creative work that was in fact
copyrighted.<footnote><para>
<!-- f4 -->
Until 1976, copyright law granted an author the possibility of two terms: an
initial term and a renewal term. I have calculated the <quote>average</quote> 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
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
</para></footnote>
That means that for thirty years, on average, the authors or
copyright holders of a creative work had an <quote>exclusive right</quote> to control
certain uses of the work. To use this copyrighted work in limited ways
required the permission of the copyright owner.
</para>
<para>
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 <quote>lawyer-free
zone.</quote> 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&mdash; whether connected or not, whether rich or not, whether
approved or not&mdash;to use and build upon.
</para>
<indexterm startref='idxanimatedcartoons' class='endofrange'/>
<indexterm startref='idxfilmsanimated' class='endofrange'/>
<para>
This is the ways things always were&mdash;until quite recently. For most
of our history, the public domain was just over the horizon. From
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
<!-- PAGE BREAK 38 -->
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.
</para>
<indexterm startref='idxcartoonfilms' class='endofrange'/>
<indexterm startref='idxdisneyinc' class='endofrange'/>
<indexterm startref='idxcopyrightdurationof' class='endofrange'/>
<indexterm startref='idxpublicdomaindefined' class='endofrange'/>
<indexterm startref='idxpublicdomaintraditionaltermforconversionto' class='endofrange'/>
<indexterm><primary>Disney, Walt</primary></indexterm>
<para>
<emphasis role="strong">Of course</emphasis>, Walt Disney had no monopoly on <quote>Walt Disney creativity.</quote>
Nor does America. The norm of free culture has, until recently, and
except within totalitarian nations, been broadly exploited and quite
universal.
</para>
<indexterm id='idxcomicsjapanese' class='startofrange'><primary>comics, Japanese</primary></indexterm>
<indexterm id='idxderivativeworkspiracyvs2' class='startofrange'><primary>derivative works</primary><secondary>piracy vs.</secondary></indexterm>
<indexterm id='idxjapanesecomics' class='startofrange'><primary>Japanese comics</primary></indexterm>
<indexterm id='idxmanga' class='startofrange'><primary>manga</primary></indexterm>
<indexterm id='idxpiracyderivativeworkvs2' class='startofrange'><primary>piracy</primary><secondary>derivative work vs.</secondary></indexterm>
<para>
Consider, for example, a form of creativity that seems strange to many
Americans but that is inescapable within Japanese culture: <citetitle>manga</citetitle>, 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.
</para>
<para>
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 <quote>graphic novels</quote> tell. For the Japanese, manga
cover every aspect of social life. For us, comics are <quote>men in tights.</quote>
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.
</para>
<para>
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.
</para>
<indexterm id='idxcreativitybytransformingpreviousworks2' class='startofrange'><primary>creativity</primary><secondary>by transforming previous works</secondary></indexterm>
<indexterm id='idxdoujinshicomics' class='startofrange'><primary>doujinshi comics</primary></indexterm>
<para>
This is the phenomenon of <citetitle>doujinshi</citetitle>. 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 <emphasis>just</emphasis> a
copy; the artist must make a contribution to the art he copies, by
transforming it either subtly or
<!-- PAGE BREAK 39 -->
significantly. A doujinshi comic can thus take a mainstream comic and
develop it differently&mdash;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 <quote>different.</quote> 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.
</para>
<indexterm id='idxdisneywalt2' class='startofrange'><primary>Disney, Walt</primary></indexterm>
<para>
These copycat comics are not a tiny part of the manga market. They are
huge. More than 33,000 <quote>circles</quote> 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.
</para>
<indexterm id='idxcopyrightlawjapanese' class='startofrange'><primary>copyright law</primary><secondary>Japanese</secondary></indexterm>
<indexterm><primary>Steamboat Bill, Jr.</primary></indexterm>
<para>
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 <quote>derivative works.</quote> 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 <citetitle>Steamboat Bill,
Jr</citetitle>. Under both Japanese and American law, that <quote>taking</quote> 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.
</para>
<indexterm startref='idxdisneywalt2' class='endofrange'/>
<indexterm id='idxwinickjudd' class='startofrange'><primary>Winick, Judd</primary></indexterm>
<para>
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, <quote>The
early days of comics in America are very much like what's going on
in Japan now. &hellip; American comics were born out of copying each
<!-- PAGE BREAK 40 -->
other. &hellip; That's how [the artists] learn to draw &mdash; by going into comic
books and not tracing them, but looking at them and copying them</quote>
and building from them.<footnote><para>
<!-- f5 -->
For an excellent history, see Scott McCloud, <citetitle>Reinventing Comics</citetitle> (New
York: Perennial, 2000).
</para></footnote>
</para>
<indexterm startref='idxcopyrightlawjapanese' class='endofrange'/>
<indexterm><primary>Superman comics</primary></indexterm>
<para>
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, <quote>there are these rules
and you have to stick to them.</quote> There are things Superman <quote>cannot</quote>
do. <quote>As a creator, it's frustrating having to stick to some parameters
which are fifty years old.</quote>
</para>
<indexterm startref='idxwinickjudd' class='endofrange'/>
<indexterm id='idxcopyrightlawjapanese2' class='startofrange'><primary>copyright law</primary><secondary>Japanese</secondary></indexterm>
<indexterm><primary>comics, Japanese</primary></indexterm>
<indexterm id='idxmehrasalil' class='startofrange'><primary>Mehra, Salil</primary></indexterm>
<para>
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.<footnote><para>
<!-- f6 -->
See Salil K. Mehra, <quote>Copyright and Comics in Japan: Does Law Explain
Why All the Comics My Kid Watches Are Japanese Imports?</quote> <citetitle>Rutgers Law
Review</citetitle> 55 (2002): 155, 182. <quote>[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.</quote>
</para></footnote>
</para>
<indexterm startref='idxcomicsjapanese' class='endofrange'/>
<indexterm startref='idxjapanesecomics' class='endofrange'/>
<indexterm startref='idxmanga' class='endofrange'/>
<para>
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 <quote>free taking</quote> by the doujinshi
culture?
</para>
<indexterm startref='idxcopyrightlawjapanese2' class='endofrange'/>
<indexterm startref='idxmehrasalil' class='endofrange'/>
<para>
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. <quote>We don't have enough
lawyers,</quote> he told me one afternoon. There <quote>just aren't enough resources
to prosecute cases like this.</quote>
</para>
<para>
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
<!-- PAGE BREAK 41 -->
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?
</para>
<indexterm startref='idxdoujinshicomics' class='endofrange'/>
<para>
<emphasis role='strong'>Let's pause</emphasis> for a moment.
</para>
<para>
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.
</para>
<para>
We live in a world that celebrates <quote>property.</quote> 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
<quote>intellectual property.</quote><footnote><para>
<!-- f7 -->
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
The term <citetitle>intellectual property</citetitle> is of relatively recent origin. See
Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 11 (New York: New York
University Press, 2001). See also Lawrence Lessig, <citetitle>The Future of Ideas</citetitle>
(New York: Random House, 2001), 293 n. 26. The term accurately
describes a set of <quote>property</quote> rights &mdash; copyright, patents,
trademark, and trade-secret &mdash; but the nature of those rights is
very different.
</para></footnote>
A large, diverse society cannot survive without property; a large,
diverse, and modern society cannot flourish without intellectual
property.
</para>
<indexterm id='idxdisneywalt3' class='startofrange'><primary>Disney, Walt</primary></indexterm>
<indexterm id='idxgrimmfairytales2' class='startofrange'><primary>Grimm fairy tales</primary></indexterm>
<indexterm><primary>Keaton, Buster</primary></indexterm>
<para>
But it takes just a second's reflection to realize that there is
plenty of value out there that <quote>property</quote> doesn't capture. I don't
mean <quote>money can't buy you love,</quote> 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&mdash; 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 <quote>fair.</quote> There was nothing
wrong with the taking from the Grimms because the Grimms' work was in
the public domain.
</para>
<indexterm id='idxfreeculturederivativeworksbasedon' class='startofrange'><primary>free culture</primary><secondary>derivative works based on</secondary></indexterm>
<para>
Thus, even though the things that Disney took&mdash;or more generally,
the things taken by anyone exercising Walt Disney creativity&mdash;are
valuable, our tradition does not treat those takings as wrong. Some
<!-- PAGE BREAK 42 -->
things remain free for the taking within a free culture, and that
freedom is good.
</para>
<indexterm startref='idxgrimmfairytales2' class='endofrange'/>
<indexterm id='idxcopyrightlawjapanese3' class='startofrange'><primary>copyright law</primary><secondary>Japanese</secondary></indexterm>
<indexterm><primary>comics, Japanese</primary></indexterm>
<indexterm id='idxdoujinshicomics2' class='startofrange'><primary>doujinshi comics</primary></indexterm>
<indexterm id='idxjapanesecomics2' class='startofrange'><primary>Japanese comics</primary></indexterm>
<indexterm id='idxmanga2' class='startofrange'><primary>manga</primary></indexterm>
<para>
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&mdash;or even one copy&mdash;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.
</para>
<indexterm startref='idxcreativitybytransformingpreviousworks2' class='endofrange'/>
<para>
Yet there is an obvious reluctance, even among Japanese lawyers, to
say that the copycat comic artists are <quote>stealing.</quote> This form of Walt
Disney creativity is seen as fair and right, even if lawyers in
particular find it hard to say why.
</para>
<indexterm startref='idxderivativeworkspiracyvs2' class='endofrange'/>
<indexterm startref='idxpiracyderivativeworkvs2' class='endofrange'/>
<indexterm startref='idxcopyrightlawjapanese3' class='endofrange'/>
<indexterm startref='idxdoujinshicomics2' class='endofrange'/>
<indexterm startref='idxjapanesecomics2' class='endofrange'/>
<indexterm startref='idxmanga2' class='endofrange'/>
<indexterm><primary>Shakespeare, William</primary></indexterm>
<para>
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. (<quote>Excuse me, Professor
Einstein, but may I have permission to use your theory of relativity
to show that you were wrong about quantum physics?</quote>) Acting companies
perform adaptations of the works of Shakespeare without securing
permission from anyone. (Does <emphasis>anyone</emphasis> 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.
</para>
<para>
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&mdash;free
societies more fully than unfree, perhaps, but all societies to some degree.
<!-- PAGE BREAK 43 -->
</para>
<indexterm startref='idxdisneywalt3' class='endofrange'/>
<para>
The hard question is therefore not <emphasis>whether</emphasis> a
culture is free. All cultures are free to some degree. The hard
question instead is <quote><emphasis>How</emphasis> free is this culture?</quote>
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?
</para>
<para>
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.
</para>
<indexterm startref='idxfreeculturederivativeworksbasedon' class='endofrange'/>
<!-- PAGE BREAK 44 -->
</chapter>
<chapter label="2" id="mere-copyists">
<title>CHAPTER TWO: <quote>Mere Copyists</quote></title>
<indexterm><primary>Daguerre, Louis</primary></indexterm>
<indexterm id='idxcameratechnology' class='startofrange'><primary>camera technology</primary></indexterm>
<indexterm id='idxphotography' class='startofrange'><primary>photography</primary></indexterm>
<para>
<emphasis role='strong'>In 1839</emphasis>, Louis Daguerre invented
the first practical technology for producing what we would call
<quote>photographs.</quote> Appropriately enough, they were called
<quote>daguerreotypes.</quote> 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.)
</para>
<indexterm><primary>Talbot, William</primary></indexterm>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
This pushed inventors to find simpler and cheaper ways to make
<quote>automatic pictures.</quote> William Talbot soon discovered a process for
making <quote>negatives.</quote> 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.
</para>
<indexterm id='idxeastmangeorge' class='startofrange'><primary>Eastman, George</primary></indexterm>
<para>
The technological change that made mass photography possible
didn't happen until 1888, and was the creation of a single man. George
<!-- PAGE BREAK 45 -->
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.
</para>
<indexterm id='idxkodakcameras' class='startofrange'><primary>Kodak cameras</primary></indexterm>
<indexterm id='idxkodakprimertheeastman' class='startofrange'><primary>Kodak Primer, The (Eastman)</primary></indexterm>
<para>
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. <quote>You press the button and we
do the rest.</quote><footnote><para>
<!-- f1 -->
Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in <citetitle>The Kodak Primer</citetitle>:
</para>
<blockquote>
<para>
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. &hellip; 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.<footnote>
<para>
<!-- f2 -->
<indexterm><primary>Coe, Brian</primary></indexterm>
Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: Taplinger Publishing,
1977), 53.
</para></footnote>
</para>
</blockquote>
<indexterm startref='idxkodakprimertheeastman' class='endofrange'/>
<para>
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.<footnote><para>
<!-- f3 -->
Jenkins, 177.
</para></footnote> Eastman Kodak's sales during the same period experienced
an average annual increase of over 17 percent.<footnote><para>
<!-- f4 -->
Based on a chart in Jenkins, p. 178.
</para></footnote>
</para>
<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<!-- PAGE BREAK 46 -->
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, <quote>For the
first time the snapshot album provided the man on the street with a
permanent record of his family and its activities. &hellip; 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.</quote><footnote><para>
<!-- f5 -->
Coe, 58.
</para></footnote>
</para>
<indexterm><primary>democracy</primary><secondary>in technologies of expression</secondary></indexterm>
<indexterm><primary>expression, technologies of</primary><secondary>democratic</secondary></indexterm>
<para>
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 <quote>quality</quote>;
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.
</para>
<indexterm startref='idxkodakcameras' class='endofrange'/>
<indexterm id='idxpermissionsphotographyexemptedfrom' class='startofrange'><primary>permissions</primary><secondary>photography exempted from</secondary></indexterm>
<para>
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.<footnote><para>
<!-- f6 -->
For illustrative cases, see, for example, <citetitle>Pavesich</citetitle>
v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905);
<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, 123090 S.W. 364, 366
(Ky. 1909); <citetitle>Corliss</citetitle> v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass.
Dist. Ct. 1894).
</para></footnote>
</para>
<indexterm startref='idxcameratechnology' class='endofrange'/>
<indexterm id='idxdisneywalt4' class='startofrange'><primary>Disney, Walt</primary></indexterm>
<indexterm id='idximagesownershipof' class='startofrange'><primary>images, ownership of</primary></indexterm>
<para>
The arguments in favor of requiring permission will sound surprisingly
familiar. The photographer was <quote>taking</quote> something from the person or
building whose photograph he shot&mdash;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
<!-- PAGE BREAK 47 -->
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
</para>
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<indexterm><primary>Steamboat Bill, Jr.</primary></indexterm>
<indexterm id='idxcameratechnology2' class='startofrange'><primary>camera technology</primary></indexterm>
<para>
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.<footnote>
<para>
<!-- f7 -->
Samuel D. Warren and Louis D. Brandeis, <quote>The Right to Privacy,</quote>
<citetitle>Harvard Law Review</citetitle> 4 (1890): 193.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<indexterm><primary>Warren, Samuel D.</primary></indexterm>
</para></footnote>) It may be that this means that the photographer
gets something for nothing. Just as Disney could take inspiration from
<citetitle>Steamboat Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
</para>
<indexterm startref='idxdisneywalt4' class='endofrange'/>
<para>
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.<footnote><para>
<!-- f8 -->
See Melville B. Nimmer, <quote>The Right of Publicity,</quote> <citetitle>Law and Contemporary
Problems</citetitle> 19 (1954): 203; William L. Prosser, <quote>Privacy,</quote> <citetitle>California Law
Review</citetitle> 48 (1960) 398&ndash;407; <citetitle>White</citetitle> v. <citetitle>Samsung Electronics America,
Inc</citetitle>., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
(1993).
</para></footnote>)
</para>
<indexterm><primary>Kodak cameras</primary></indexterm>
<indexterm><primary>Napster</primary></indexterm>
<para>
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 <quote>theft</quote> committed by the
photographer. Just as Napster benefited from the copyright
infringements committed by Napster users, Kodak would be benefiting
from the <quote>image-right</quote> 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.
</para>
<indexterm startref='idxcameratechnology2' class='endofrange'/>
<indexterm id='idxcameratechnology3' class='startofrange'><primary>camera technology</primary></indexterm>
<indexterm><primary>democracy</primary><secondary>in technologies of expression</secondary></indexterm>
<indexterm><primary>expression, technologies of</primary><secondary>democratic</secondary></indexterm>
<para>
<!-- PAGE BREAK 48 -->
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&mdash;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.
</para>
<indexterm startref='idxphotography' class='endofrange'/>
<indexterm startref='idxeastmangeorge' class='endofrange'/>
<indexterm startref='idxpermissionsphotographyexemptedfrom' class='endofrange'/>
<indexterm startref='idximagesownershipof' class='endofrange'/>
<indexterm><primary>digital cameras</primary></indexterm>
<indexterm id='idxjustthink' class='startofrange'><primary>Just Think!</primary></indexterm>
<para>
<emphasis role='strong'>If you drive</emphasis> through San
Francisco's Presidio, you might see two gaudy yellow school buses
painted over with colorful and striking images, and the logo
<quote>Just Think!</quote> in place of the name of a school. But
there's little that's <quote>just</quote> 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 <quote>film</quote> 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.
</para>
<indexterm id='idxeducationinmedialiteracy' class='startofrange'><primary>education</primary><secondary>in media literacy</secondary></indexterm>
<indexterm id='idxmedialiteracy' class='startofrange'><primary>media literacy</primary></indexterm>
<indexterm id='idxexpressiontechnologiesofmedialiteracyand' class='startofrange'><primary>expression, technologies of</primary><secondary>media literacy and</secondary></indexterm>
<para>
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, <quote>Five years ago, a good
real-time digital video editing system cost $25,000. Today you can get
professional quality for $595.</quote><footnote><para>
<!-- f9 -->
H. Edward Goldberg, <quote>Essential Presentation Tools: Hardware and
Software You Need to Create Digital Multimedia Presentations,</quote>
cadalyst, February 2002, available at
<ulink url="http://free-culture.cc/notes/">link #7</ulink>.
</para></footnote>
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 <quote>media literacy.</quote>
</para>
<indexterm><primary>Yanofsky, Dave</primary></indexterm>
<para>
<!-- PAGE BREAK 49 -->
<quote>Media literacy,</quote> as Dave Yanofsky, the executive director of Just
Think!, puts it, <quote>is the ability &hellip; 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.</quote>
</para>
<indexterm startref='idxjustthink' class='endofrange'/>
<para>
This may seem like an odd way to think about <quote>literacy.</quote> For most
people, literacy is about reading and writing. Faulkner and Hemingway
and noticing split infinitives are the things that <quote>literate</quote> people know
about.
</para>
<indexterm><primary>advertising</primary></indexterm>
<indexterm><primary>commercials</primary></indexterm>
<indexterm><primary>television</primary><secondary>advertising on</secondary></indexterm>
<para>
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,<footnote><para>
<!-- f10 -->
Judith Van Evra, <citetitle>Television and Child Development</citetitle> (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); <quote>Findings on Family and TV
Study,</quote> <citetitle>Denver Post</citetitle>, 25 May 1997, B6.
</para></footnote>
it is increasingly important to understand the <quote>grammar</quote> 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.
</para>
<para>
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&mdash;how difficult
it is to sequence the story, to keep a reader's attention, to craft
language to be understandable&mdash;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.
</para>
<indexterm startref='idxcameratechnology3' class='endofrange'/>
<para>
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.
</para>
<indexterm id='idxdaleyelizabeth' class='startofrange'><primary>Daley, Elizabeth</primary></indexterm>
<indexterm><primary>Crichton, Michael</primary></indexterm>
<para>
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
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
about <quote>the placement of objects, color, &hellip; rhythm, pacing, and
texture.</quote><footnote>
<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
2002.
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<indexterm><primary>Daley, Elizabeth</primary></indexterm>
</para></footnote>
But as computers open up an interactive space where a story is
<quote>played</quote> 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.<footnote><para>
<!-- f12 -->
See Scott Steinberg, <quote>Crichton Gets Medieval on PCs,</quote> E!online, 4
November 2000, available at
<ulink url="http://free-culture.cc/notes/">link #8</ulink>; <quote>Timeline,</quote> 22 November 2000,
available at
<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
</para></footnote>
</para>
<indexterm><primary>computer games</primary></indexterm>
<para>
This skill is precisely the craft a filmmaker learns. As Daley
describes, <quote>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.</quote> If you know you were led through a film, the film has failed.
</para>
<para>
Yet the push for an expanded literacy&mdash;one that goes beyond text
to include audio and visual elements&mdash;is not about making better
film directors. The aim is not to improve the profession of
filmmaking at all. Instead, as Daley explained,
</para>
<blockquote>
<para>
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.
</para>
</blockquote>
<para>
<quote>Read-only.</quote> Passive recipients of culture produced elsewhere.
Couch potatoes. Consumers. This is the world of media from the
twentieth century.
</para>
<para>
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,
<!-- PAGE BREAK 51 -->
and this literacy in particular, is to <quote>empower people to choose the
appropriate language for what they need to create or
express.</quote><footnote>
<para>
<!-- f13 -->
Interview with Daley and Barish.
<indexterm><primary>Barish, Stephanie</primary></indexterm>
</para></footnote> It is to enable students <quote>to communicate in the
language of the twenty-first century.</quote><footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
</para>
<indexterm id='idxbarishstephanie' class='startofrange'><primary>Barish, Stephanie</primary></indexterm>
<para>
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&mdash;gun violence.
</para>
<indexterm startref='idxdaleyelizabeth' class='endofrange'/>
<para>
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 <quote>kids were showing up at 6 A.M. and leaving at 5 at night,</quote>
said Barish. They were working harder than in any other class to do
what education should be about&mdash;learning how to express themselves.
</para>
<para>
Using whatever <quote>free web stuff they could find,</quote> and relatively simple
tools to enable the kids to mix <quote>image, sound, and text,</quote> 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 <quote>gave them a tool
and empowered them to be able to both understand it and talk about
it,</quote> Barish explained. That tool succeeded in creating
expression&mdash;far more successfully and powerfully than could have
been created using only text. <quote>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,</quote> 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
<emphasis>these</emphasis> ideas can be expressed well. The power of
this message depended upon its connection to this form of expression.
</para>
<indexterm startref='idxbarishstephanie' class='endofrange'/>
<indexterm id='idxdaleyelizabeth2' class='startofrange'><primary>Daley, Elizabeth</primary></indexterm>
<para>
<!-- PAGE BREAK 52 -->
<quote>But isn't education about teaching kids to write?</quote> 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 <quote>constructing
meaning.</quote> To say that that means just writing is like saying teaching
writing is only about teaching kids how to spell. Text is one
part&mdash;and increasingly, not the most powerful part&mdash;of
constructing meaning. As Daley explained in the most moving part of
our interview,
</para>
<blockquote>
<para>
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, <quote>Johnny, you're illiterate. Nothing you can do matters.</quote>
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, <quote>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.</quote> Not by giving a kid a video
camera and &hellip; saying, <quote>Let's go have fun with the video camera and
make a little movie.</quote> But instead, really help you take these elements
that you understand, that are your language, and construct meaning
about the topic.&hellip;
</para>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
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, <quote>I need to explain this and I really need
to write something.</quote> And as one of the teachers told Stephanie,
they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
</para>
<para>
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
<!-- PAGE BREAK 53 -->
didn't speak very well. But they had come to understand that they
had a lot of power with this language.
</para>
<!-- FIXME removed a " from the end of the previous paragraph that did
not match with any start quote. -->
</blockquote>
<indexterm startref='idxeducationinmedialiteracy' class='endofrange'/>
<indexterm startref='idxmedialiteracy' class='endofrange'/>
<indexterm startref='idxexpressiontechnologiesofmedialiteracyand' class='endofrange'/>
<indexterm startref='idxdaleyelizabeth2' class='endofrange'/>
<indexterm id='idxseptemberterroristattacksof' class='startofrange'><primary>September 11, 2001, terrorist attacks of</primary></indexterm>
<indexterm><primary>World Trade Center</primary></indexterm>
<indexterm id='idxnewscoverage' class='startofrange'><primary>news coverage</primary></indexterm>
<para>
<emphasis role='strong'>When two planes</emphasis> 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.
</para>
<para>
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 <quote>balance,</quote>
and seriousness. This was news choreographed in the way we have
increasingly come to expect it, <quote>news as entertainment,</quote> even if the
entertainment is tragedy.
</para>
<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>CBS</primary></indexterm>
<para>
But in addition to this produced news about the <quote>tragedy of September
11,</quote> 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 <citetitle>Cyber Rights</citetitle>, around a news event that had
captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
</para>
<indexterm startref='idxseptemberterroristattacksof' class='endofrange'/>
<para>
I don't mean simply to praise the Internet&mdash;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
<!-- PAGE BREAK 54 -->
by a student on the <quote>Just Think!</quote> bus, the visual images could be mixed
with sound or text.
</para>
<para>
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&mdash;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.
</para>
<indexterm><primary>September 11, 2001, terrorist attacks of</primary></indexterm>
<indexterm id='idxblogsweblogs' class='startofrange'><primary>blogs (Web-logs)</primary></indexterm>
<indexterm id='idxinternetblogson' class='startofrange'><primary>Internet</primary><secondary>blogs on</secondary></indexterm>
<indexterm id='idxweblogsblogs' class='startofrange'><primary>Web-logs (blogs)</primary></indexterm>
<para>
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&mdash;it's a kind
of electronic <citetitle>Jerry Springer</citetitle>, available anywhere in the world.
</para>
<indexterm><primary>political discourse</primary></indexterm>
<indexterm id='idxinternetpublicdiscourseconductedon' class='startofrange'><primary>Internet</primary><secondary>public discourse conducted on</secondary></indexterm>
<para>
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.
</para>
<indexterm id='idxdemocracyintechnologiesofexpression' class='startofrange'><primary>democracy</primary><secondary>in technologies of expression</secondary></indexterm>
<indexterm id='idxelections' class='startofrange'><primary>elections</primary></indexterm>
<indexterm id='idxexpressiontechnologiesofdemocratic' class='startofrange'><primary>expression, technologies of</primary><secondary>democratic</secondary></indexterm>
<para>
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
<!-- PAGE BREAK 55 -->
in those elections. The cycle of these elections has become totally
professionalized and routinized. Most of us think this is democracy.
</para>
<indexterm startref='idxblogsweblogs' class='endofrange'/>
<indexterm startref='idxinternetblogson' class='endofrange'/>
<indexterm startref='idxweblogsblogs' class='endofrange'/>
<indexterm><primary>Tocqueville, Alexis de</primary></indexterm>
<indexterm id='idxdemocracypublicdiscoursein' class='startofrange'><primary>democracy</primary><secondary>public discourse in</secondary></indexterm>
<indexterm><primary>jury system</primary></indexterm>
<para>
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 <quote>Democracy in America.</quote> It wasn't
popular elections that fascinated him&mdash;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 <quote>right</quote> result; they tried to
persuade each other of the <quote>right</quote> result, and in criminal cases at
least, they had to agree upon a unanimous result for the process to
come to an end.<footnote><para>
<!-- f15 -->
See, for example, Alexis de Tocqueville, <citetitle>Democracy in America</citetitle>,
bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
</para></footnote>
</para>
<indexterm startref='idxelections' class='endofrange'/>
<para>
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.<footnote><para>
<!-- f16 -->
Bruce Ackerman and James Fishkin, <quote>Deliberation Day,</quote> <citetitle>Journal of
Political Philosophy</citetitle> 10 (2) (2002): 129.
</para></footnote>
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 <quote>democratic deliberation</quote> to occur.
</para>
<indexterm id='idxpoliticaldiscourse' class='startofrange'><primary>political discourse</primary></indexterm>
<para>
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.<footnote><para>
<!-- f17 -->
Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton University Press, 2001),
65&ndash;80, 175, 182, 183, 192.
</para></footnote> We say what our friends want to hear, and hear very
little beyond what our friends say.
</para>
<indexterm id='idxblogsweblogs2' class='startofrange'><primary>blogs (Web-logs)</primary></indexterm>
<indexterm><primary>e-mail</primary></indexterm>
<indexterm id='idxinternetblogson2' class='startofrange'><primary>Internet</primary><secondary>blogs on</secondary></indexterm>
<indexterm id='idxweblogsblogs2' class='startofrange'><primary>Web-logs (blogs)</primary></indexterm>
<indexterm startref='idxdemocracyintechnologiesofexpression' class='endofrange'/>
<indexterm startref='idxexpressiontechnologiesofdemocratic' class='endofrange'/>
<indexterm startref='idxdemocracypublicdiscoursein' class='endofrange'/>
<para>
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
<!-- PAGE BREAK 56 -->
discourse without the public ever needing to gather in a single public
place.
</para>
<para>
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.
</para>
<indexterm><primary>Dean, Howard</primary></indexterm>
<para>
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.
</para>
<indexterm><primary>Lott, Trent</primary></indexterm>
<indexterm><primary>Thurmond, Strom</primary></indexterm>
<indexterm id='idxmediablogpressureon' class='startofrange'><primary>media</primary><secondary>blog pressure on</secondary></indexterm>
<indexterm id='idxinternetnewseventson2' class='startofrange'><primary>Internet</primary><secondary>news events on</secondary></indexterm>
<para>
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
<quote>misspoke</quote> 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 <quote>misspeaking</quote> emerged. Finally, the story
broke back into the mainstream press. In the end, Lott was forced to
resign as senate majority leader.<footnote><para>
<!-- f18 -->
Noah Shachtman, <quote>With Incessant Postings, a Pundit Stirs the Pot,</quote> New
York Times, 16 January 2003, G5.
</para></footnote>
</para>
<indexterm id='idxmediacommercialimperativesof' class='startofrange'><primary>media</primary><secondary>commercial imperatives of</secondary></indexterm>
<para>
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.
</para>
<indexterm startref='idxmediablogpressureon' class='endofrange'/>
<indexterm><primary>Internet</primary><secondary>peer-generated rankings on</secondary></indexterm>
<para>
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.
</para>
<indexterm startref='idxmediacommercialimperativesof' class='endofrange'/>
<indexterm id='idxjournalism' class='startofrange'><primary>journalism</primary></indexterm>
<indexterm id='idxwinerdave' class='startofrange'><primary>Winer, Dave</primary></indexterm>
<para>
There's a second way, as well, in which blogs have a different cycle
<!-- PAGE BREAK 57 -->
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 <quote>conflict of interest.</quote> <quote>I think you
have to take the conflict of interest</quote> out of journalism, Winer told me.
<quote>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.</quote>
</para>
<indexterm><primary>CNN</primary></indexterm>
<indexterm><primary>media</primary><secondary>commercial imperatives of</secondary></indexterm>
<indexterm><primary>Iraq war</primary></indexterm>
<indexterm><primary>media</primary><secondary>ownership concentration in</secondary></indexterm>
<para>
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&mdash;as CNN admitted
it did after the Iraq war because it was afraid of the consequences to
its own employees.<footnote><para>
<!-- f19 -->
Telephone interview with David Winer, 16 April 2003.
</para></footnote>
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 <emphasis>they</emphasis> were writing <quote>the story.</quote>)
</para>
<indexterm startref='idxinternetnewseventson2' class='endofrange'/>
<para>
Blog space gives amateurs a way to enter the
debate&mdash;<quote>amateur</quote> 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.<footnote><para>
<!-- f20 -->
John Schwartz, <quote>Loss of the Shuttle: The Internet; A Wealth of
Information Online,</quote> <citetitle>New York Times</citetitle>, 2 February 2003, A28; Staci
D. Kramer, <quote>Shuttle Disaster Coverage Mixed, but Strong Overall,</quote>
Online Journalism Review, 2 February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #10</ulink>.
</para></footnote>
And it drives readers to read across the range of accounts and
<quote>triangulate,</quote> as Winer puts it, the truth. Blogs, Winer says, are
<quote>communicating directly with our constituency, and the middle man is
out of it</quote>&mdash;with all the benefits, and costs, that might entail.
</para>
<para>
Winer is optimistic about the future of journalism infected
with blogs. <quote>It's going to become an essential skill,</quote> Winer predicts,
for public figures and increasingly for private figures as well. It's
not clear that <quote>journalism</quote> is happy about this&mdash;some journalists
have been told to curtail their blogging.<footnote>
<para>
<!-- f21 -->
<indexterm><primary>CNN</primary></indexterm>
<indexterm><primary>Iraq war</primary></indexterm>
<indexterm><primary>Olafson, Steve</primary></indexterm>
<indexterm><primary>blogs (Web-logs)</primary></indexterm>
See Michael Falcone, <quote>Does an Editor's Pencil Ruin a Web Log?</quote> <citetitle>New
York Times</citetitle>, 29 September 2003, C4. (<quote>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 <citetitle>Houston Chronicle</citetitle> 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.</quote>)
</para></footnote>
But it is clear that we are still in transition. <quote>A
<!-- PAGE BREAK 58 -->
lot of what we are doing now is warm-up exercises,</quote> 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, <quote>we will
be the last thing that gets shut down.</quote>
</para>
<indexterm startref='idxjournalism' class='endofrange'/>
<para>
This speech affects democracy. Winer thinks that happens because <quote>you
don't have to work for somebody who controls, [for] a gatekeeper.</quote>
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.
</para>
<indexterm startref='idxnewscoverage' class='endofrange'/>
<indexterm startref='idxinternetpublicdiscourseconductedon' class='endofrange'/>
<indexterm startref='idxpoliticaldiscourse' class='endofrange'/>
<indexterm startref='idxblogsweblogs2' class='endofrange'/>
<indexterm startref='idxinternetblogson2' class='endofrange'/>
<indexterm startref='idxweblogsblogs2' class='endofrange'/>
<indexterm startref='idxwinerdave' class='endofrange'/>
<indexterm id='idxbrownjohnseely' class='startofrange'><primary>Brown, John Seely</primary></indexterm>
<indexterm id='idxadvertising1' class='startofrange'><primary>advertising</primary></indexterm>
<para>
<emphasis role='strong'>John Seely Brown</emphasis> is the chief
scientist of the Xerox Corporation. His work, as his Web site
describes it, is <quote>human learning and &hellip; the creation of
knowledge ecologies for creating &hellip; innovation.</quote>
</para>
<para>
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.
</para>
<para>
As Brown believes, we learn by tinkering. When <quote>a lot of us grew up,</quote>
he explains, that tinkering was done <quote>on motorcycle engines, lawnmower
engines, automobiles, radios, and so on.</quote> But digital technologies
enable a different kind of tinkering&mdash;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
<!-- PAGE BREAK 59 -->
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 <quote>free collage,</quote> as Brown calls it. Many get to add to or transform
the tinkering of many others.
</para>
<para>
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.
</para>
<para>
This opportunity creates a <quote>completely new kind of learning platform,</quote>
as Brown describes. <quote>As soon as you start doing that, you &hellip;
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.</quote> Each effort is a kind of
apprenticeship. <quote>Open source becomes a major apprenticeship platform.</quote>
</para>
<para>
In this process, <quote>the concrete things you tinker with are abstract.
They are code.</quote> Kids are <quote>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. &hellip; You are tinkering with other people's stuff. The more
you tinker the more you improve.</quote> The more you improve, the more you
learn.
</para>
<para>
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, <quote>the Web [is] the first medium that truly honors multiple forms of
intelligence.</quote> Earlier technologies, such as the typewriter or word
processors, helped amplify text. But the Web amplifies much more than
text. <quote>The Web &hellip; says if you are musical, if you are artistic, if
you are visual, if you are interested in film &hellip; [then] there is a
lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence.</quote>
</para>
<indexterm startref='idxadvertising1' class='endofrange'/>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
Brown is talking about what Elizabeth Daley, Stephanie Barish, and
Just Think! teach: that this tinkering with culture teaches as well
<!-- PAGE BREAK 60 -->
as creates. It develops talents differently, and it builds a different
kind of recognition.
</para>
<para>
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.
</para>
<para>
These restrictions have become the focus of researchers and scholars.
Professor Ed Felten of Princeton (whom we'll see more of in chapter
<xref xrefstyle="select: labelnumber" linkend="property-i"/>)
has developed a powerful argument in favor of the <quote>right to
tinker</quote> as it applies to computer science and to knowledge in
general.<footnote><para>
<!-- f22 -->
See, for example, Edward Felten and Andrew Appel, <quote>Technological Access
Control Interferes with Noninfringing Scholarship,</quote> <citetitle>Communications
of the Association for Computer Machinery</citetitle> 43 (2000): 9.
</para></footnote>
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.
</para>
<para>
<quote>This is where education in the twenty-first century is going,</quote> Brown
explains. We need to <quote>understand how kids who grow up digital think
and want to learn.</quote>
</para>
<para>
<quote>Yet,</quote> as Brown continued, and as the balance of this book will
evince, <quote>we are building a legal system that completely suppresses the
natural tendencies of today's digital kids. &hellip; We're building an
architecture that unleashes 60 percent of the brain [and] a legal
system that closes down that part of the brain.</quote>
</para>
<indexterm startref='idxbrownjohnseely' class='endofrange'/>
<para>
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.
</para>
<para>
<quote>No way to run a culture,</quote> as Brewster Kahle, whom we'll meet in
chapter <xref xrefstyle="select: labelnumber" linkend="collectors"/>,
quipped to me in a rare moment of despondence.
</para>
<!-- PAGE BREAK 61 -->
</chapter>
<chapter label="3" id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
<indexterm><primary>Jordan, Jesse</primary></indexterm>
<indexterm><primary>RPI</primary><see>Rensselaer Polytechnic Institute (RPI)</see></indexterm>
<indexterm id='idxrensselaer' class='startofrange'><primary>Rensselaer Polytechnic Institute (RPI)</primary></indexterm>
<indexterm id='idxrensselaerpolytechnicinstituterpicomputernetworksearchengineof' class='startofrange'><primary>Rensselaer Polytechnic Institute (RPI)</primary><secondary>computer network search engine of</secondary></indexterm>
<indexterm id='idxsearchengines' class='startofrange'><primary>search engines</primary></indexterm>
<indexterm id='idxuniversitycomputernetworksppsharingon' class='startofrange'><primary>university computer networks, p2p sharing on</primary></indexterm>
<indexterm id='idxinternetsearchenginesusedon' class='startofrange'><primary>Internet</primary><secondary>search engines used on</secondary></indexterm>
<para>
<emphasis role='strong'>In the fall</emphasis> 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.
</para>
<para>
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.
</para>
<para>
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.
</para>
<indexterm id='idxgoogle' class='startofrange'><primary>Google</primary></indexterm>
<para>
Search engines are a measure of a network's intimacy. Google
<!-- PAGE BREAK 62 -->
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 <quote>intranet</quote> 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.
</para>
<indexterm id='idxjordanjesse' class='startofrange'><primary>Jordan, Jesse</primary></indexterm>
<indexterm id='idxmicrosoftnetworkfilesystemof' class='startofrange'><primary>Microsoft</primary><secondary>network file system of</secondary></indexterm>
<para>
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.
</para>
<indexterm startref='idxgoogle' class='endofrange'/>
<para>
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.
</para>
<indexterm startref='idxmicrosoftnetworkfilesystemof' class='endofrange'/>
<para>
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.
</para>
<indexterm startref='idxinternetsearchenginesusedon' class='endofrange'/>
<para>
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&mdash;basically anything that
<!-- PAGE BREAK 63 -->
users of the RPI network made available in a public folder of their
computer.
</para>
<indexterm><primary>Google</primary></indexterm>
<indexterm><primary>education</primary><secondary>tinkering as means of</secondary></indexterm>
<para>
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&mdash;so that this
point is absolutely clear&mdash;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.
</para>
<indexterm id='idxcopyrightinfringementlawsuitsinrecordingindustry' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>in recording industry</secondary></indexterm>
<indexterm id='idxcopyrightinfringementlawsuitsagainststudentfilesharing' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>against student file sharing</secondary></indexterm>
<indexterm id='idxrecordingindustrycopyrightinfringementlawsuitsof' class='startofrange'><primary>recording industry</primary><secondary>copyright infringement lawsuits of</secondary></indexterm>
<indexterm id='idxrecordingindustryassociationofamericariaacopyrightinfringementlawsuitsfiledby' class='startofrange'><primary>Recording Industry Association of America (RIAA)</primary><secondary>copyright infringement lawsuits filed by</secondary></indexterm>
<indexterm startref='idxrensselaerpolytechnicinstituterpicomputernetworksearchengineof' class='endofrange'/>
<para>
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.
</para>
<para>
<quote>It was absurd,</quote> he told me. <quote>I don't think I did anything
wrong. &hellip; I don't think there's anything wrong with the search
engine that I ran or &hellip; 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</quote>&mdash;again, a <emphasis>search engine</emphasis>,
which Jesse had not himself built, using the Windows filesharing
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.
</para>
<indexterm startref='idxsearchengines' class='endofrange'/>
<indexterm><primary>copyright infringement lawsuits</primary><secondary>exaggerated claims of</secondary></indexterm>
<indexterm><primary>copyright infringement lawsuits</primary><secondary>statutory damages of</secondary></indexterm>
<indexterm id='idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby' class='startofrange'><primary>copyright infringement lawsuits</primary><secondary>individual defendants intimidated by</secondary></indexterm>
<indexterm><primary>statutory damages</primary></indexterm>
<indexterm id='idxrecordingindustryassociationofamericariaaintimidationtacticsof' class='startofrange'><primary>Recording Industry Association of America (RIAA)</primary><secondary>intimidation tactics of</secondary></indexterm>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
network and had therefore <quote>willfully</quote> violated copyright laws. They
<!-- PAGE BREAK 64 -->
demanded that he pay them the damages for his wrong. For cases of
<quote>willful infringement,</quote> the Copyright Act specifies something lawyers
call <quote>statutory damages.</quote> 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.
</para>
<indexterm><primary>Michigan Technical University</primary></indexterm>
<indexterm><primary>Princeton University</primary></indexterm>
<para>
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 <quote>damages</quote> 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
<emphasis>billion</emphasis>&mdash;six times the
<emphasis>total</emphasis> profit of the film industry in
2001.<footnote><para>
<!-- f1 -->
Tim Goral, <quote>Recording Industry Goes After Campus P-2-P Networks:
Suit Alleges $97.8 Billion in Damages,</quote> <citetitle>Professional Media Group LCC</citetitle> 6
(2003): 5, available at 2003 WL 55179443.
</para></footnote>
</para>
<indexterm startref='idxrensselaer' class='endofrange'/>
<para>
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.
</para>
<indexterm><primary>Oppenheimer, Matt</primary></indexterm>
<para>
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, <quote>You don't want to pay another
visit to a dentist like me.</quote>) And throughout, the RIAA insisted it
would not settle the case until it took every penny Jesse had saved.
</para>
<indexterm><primary>legal system, attorney costs in</primary></indexterm>
<para>
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
<!-- PAGE BREAK 65 -->
won, he would have a piece of paper saying he had won, and a piece of
paper saying he and his family were bankrupt.
</para>
<para>
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
<indexterm><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<indexterm><primary>recording industry</primary><secondary>artist remuneration in</secondary></indexterm>
<indexterm><primary>Recording Industry Association of America (RIAA)</primary><secondary>lobbying power of</secondary></indexterm>
<para>
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.<footnote><para>
<!-- f2 -->
Occupational Employment Survey, U.S. Dept. of Labor (2001)
(27&ndash;2042&mdash;Musicians and Singers). See also National Endowment for
the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000).
</para></footnote>
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?<footnote><para>
<!-- f3 -->
Douglas Lichtman makes a related point in <quote>KaZaA and Punishment,</quote>
<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24.
</para></footnote>
</para>
<indexterm startref='idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby' class='endofrange'/>
<indexterm startref='idxrecordingindustryassociationofamericariaaintimidationtacticsof' class='endofrange'/>
<para>
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:
</para>
<blockquote>
<para>
I was definitely not an activist [before]. I never really meant to be
an activist. &hellip; [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.
</para>
</blockquote>
<para>
Jesse's parents betray a certain pride in their reluctant activist. As
his father told me, Jesse <quote>considers himself very conservative, and so do
I. &hellip; He's not a tree hugger. &hellip; 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.</quote>
</para>
<indexterm startref='idxuniversitycomputernetworksppsharingon' class='endofrange'/>
<indexterm startref='idxjordanjesse' class='endofrange'/>
<indexterm startref='idxcopyrightinfringementlawsuitsinrecordingindustry' class='endofrange'/>
<indexterm startref='idxcopyrightinfringementlawsuitsagainststudentfilesharing' class='endofrange'/>
<indexterm startref='idxrecordingindustrycopyrightinfringementlawsuitsof' class='endofrange'/>
<indexterm startref='idxrecordingindustryassociationofamericariaacopyrightinfringementlawsuitsfiledby' class='endofrange'/>
<!-- PAGE BREAK 66 -->
</chapter>
<chapter label="4" id="pirates">
<title>CHAPTER FOUR: <quote>Pirates</quote></title>
<indexterm id='idxpiracyindevelopmentofcontentindustry' class='startofrange'><primary>piracy</primary><secondary>in development of content industry</secondary></indexterm>
<indexterm><primary><quote>if value, then right</quote> theory</primary></indexterm>
<para>
<emphasis role='strong'>If <quote>piracy</quote> means</emphasis>
using the creative property of others without their
permission&mdash;if <quote>if value, then right</quote> is
true&mdash;then the history of the content industry is a history of
piracy. Every important sector of <quote>big media</quote>
today&mdash;film, records, radio, and cable TV&mdash;was born of a
kind of piracy so defined. The consistent story is how last
generation's pirates join this generation's country club&mdash;until
now.
</para>
<section id="film">
<title>Film</title>
<para>
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- f1 -->
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
I am grateful to Peter DiMauro for pointing me to this extraordinary
history. See also Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 87&ndash;93,
which details Edison's <quote>adventures</quote> with copyright and patent.
</para></footnote>
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 <quote>trust,</quote> the Motion Pictures Patents
Company, and were based on Thomas Edison's creative
property&mdash;patents. Edison formed the MPPC to exercise the rights
this creative property
<!-- PAGE BREAK 67 -->
gave him, and the MPPC was serious about the control it demanded.
</para>
<para>
As one commentator tells one part of the story,
</para>
<blockquote>
<para>
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.
</para>
<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
<para>
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.<footnote><para>
<!-- f2 -->
J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent Motion
Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and expanded texts
posted at <quote>The Edison Movie Monopoly: The Motion Picture Patents
Company vs. the Independent Outlaws,</quote> available at
<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
discussion of the economic motive behind both these limits and the
limits imposed by Victor on phonographs, see Randal C. Picker, <quote>From
Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
the Propertization of Copyright</quote> (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
Working Paper No. 159.
<indexterm><primary>broadcast flag</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
The Napsters of those days, the <quote>independents,</quote> were companies like
Fox. And no less than today, these independents were vigorously
resisted. <quote>Shooting was disrupted by machinery stolen, and
`accidents' resulting in loss of negatives, equipment, buildings and
sometimes life and limb frequently occurred.</quote><footnote><para>
<!-- f3 -->
Marc Wanamaker, <quote>The First Studios,</quote> <citetitle>The Silents Majority</citetitle>, archived at
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
That led the independents to flee the East
Coast. California was remote enough from Edison's reach that
filmmakers there could pirate his inventions without fear of the
law. And the leaders of Hollywood filmmaking, Fox most prominently,
did just that.
</para>
<para>
Of course, California grew quickly, and the effective enforcement
of federal law eventually spread west. But because patents grant the
patent holder a truly <quote>limited</quote> monopoly (just seventeen years at that
<!-- PAGE BREAK 68 -->
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.
</para>
</section>
<section id="recordedmusic">
<title>Recorded Music</title>
<indexterm id='idxcopyrightlawonmusicrecordings' class='startofrange'><primary>copyright law</primary><secondary>on music recordings</secondary></indexterm>
<para>
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.
</para>
<indexterm id='idxfourneauxhenri' class='startofrange'><primary>Fourneaux, Henri</primary></indexterm>
<indexterm><primary>Russel, Phil</primary></indexterm>
<para>
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 <quote>Happy Mose,</quote> 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.
</para>
<indexterm><primary>Beatles</primary></indexterm>
<para>
But what if I wanted to record <quote>Happy Mose,</quote> 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
<quote>public performance</quote> 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&mdash;yet&mdash; 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.
</para>
<indexterm startref='idxfourneauxhenri' class='endofrange'/>
<para>
The composers (and publishers) were none too happy about
<!-- PAGE BREAK 69 -->
this capacity to pirate. As South Dakota senator Alfred Kittredge
put it,
<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para>
<blockquote>
<para>
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.<footnote><para>
<!-- f4 -->
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 <citetitle>Legislative History of the
Copyright Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
<indexterm><primary>Kittredge, Alfred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<indexterm><primary>Sousa, John Philip</primary></indexterm>
<para>
The innovators who developed the technology to record other
people's works were <quote>sponging upon the toil, the work, the talent, and
genius of American composers,</quote><footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223
(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
and the <quote>music publishing industry</quote>
was thereby <quote>at the complete mercy of this one pirate.</quote><footnote><para>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226
(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
As John Philip
Sousa put it, in as direct a way as possible, <quote>When they make money
out of my pieces, I want a share of it.</quote><footnote><para>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23
(statement of John Philip Sousa, composer).
</para></footnote>
</para>
<indexterm><primary>American Graphophone Company</primary></indexterm>
<indexterm><primary>player pianos</primary></indexterm>
<indexterm><primary>sheet music</primary></indexterm>
<indexterm id='idxcongressusoncopyrightlaws' class='startofrange'><primary>Congress, U.S.</primary><secondary>on copyright laws</secondary></indexterm>
<indexterm id='idxcongressusonrecordingindustry' class='startofrange'><primary>Congress, U.S.</primary><secondary>on recording industry</secondary></indexterm>
<indexterm id='idxcopyrightlawstatutorylicensesin' class='startofrange'><primary>copyright law</primary><secondary>statutory licenses in</secondary></indexterm>
<indexterm id='idxrecordingindustrystatutorylicensesystemin' class='startofrange'><primary>recording industry</primary><secondary>statutory license system in</secondary></indexterm>
<para>
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 <quote>it is perfectly demonstrable that the
introduction of automatic music players has not deprived any composer
of anything he had before their introduction.</quote> Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
To Amend and Consolidate the Acts Respecting Copyright, 283&ndash;84
(statement of Albert Walker, representative of the Auto-Music
Perforating Company of New York).
</para></footnote> In any case, the innovators argued, the job of
Congress was <quote>to consider first the interest of [the public], whom
they represent, and whose servants they are.</quote> <quote>All talk about
`theft,'</quote> the general counsel of the American Graphophone Company
wrote, <quote>is the merest claptrap, for there exists no property in ideas
musical, literary or artistic, except as defined by
statute.</quote><footnote><para>
<!-- f9 -->
To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
memorandum of Philip Mauro, general patent counsel of the American
Graphophone Company Association).
</para></footnote>
</para>
<indexterm><primary>cover songs</primary></indexterm>
<para>
The law soon resolved this battle in favor of the composer
<emphasis>and</emphasis> the recording artist. Congress amended the
law to make sure that composers would be paid for the <quote>mechanical
reproductions</quote> 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
<!-- PAGE BREAK 70 -->
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.
</para>
<indexterm id='idxcompulsorylicense' class='startofrange'><primary>compulsory license</primary></indexterm>
<indexterm id='idxstatutorylicenses' class='startofrange'><primary>statutory licenses</primary></indexterm>
<para>
American law ordinarily calls this a <quote>compulsory license,</quote> but I will
refer to it as a <quote>statutory license.</quote> 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.
</para>
<indexterm id='idxgrishamjohn' class='startofrange'><primary>Grisham, John</primary></indexterm>
<para>
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.
</para>
<indexterm startref='idxcopyrightlawonmusicrecordings' class='endofrange'/>
<indexterm><primary>Beatles</primary></indexterm>
<para>
But the law governing recordings gives recording artists less. And
thus, in effect, the law <emphasis>subsidizes</emphasis> the recording
industry through a kind of piracy&mdash;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.<footnote><para>
<!-- f10 -->
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 <citetitle>Legislative History of the 1909 Copyright Act</citetitle>, E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
</para>
<indexterm startref='idxcongressusoncopyrightlaws' class='endofrange'/>
<indexterm startref='idxcongressusonrecordingindustry' class='endofrange'/>
<indexterm startref='idxgrishamjohn' class='endofrange'/>
<para>
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,
</para>
<blockquote>
<para>
the record producers argued vigorously that the compulsory
<!-- PAGE BREAK 71 -->
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.<footnote><para>
<!-- f11 -->
Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
March 1967). I am grateful to Glenn Brown for drawing my attention to
this report.</para></footnote>
</para>
</blockquote>
<indexterm startref='idxcopyrightlawstatutorylicensesin' class='endofrange'/>
<indexterm startref='idxrecordingindustrystatutorylicensesystemin' class='endofrange'/>
<indexterm startref='idxcompulsorylicense' class='endofrange'/>
<indexterm startref='idxstatutorylicenses' class='endofrange'/>
<para>
By limiting the rights musicians have, by partially pirating their
creative work, the record producers, and the public, benefit.
</para>
</section>
<section id="radio">
<title>Radio</title>
<indexterm id='idxrecordingindustryradiobroadcastand' class='startofrange'><primary>recording industry</primary><secondary>radio broadcast and</secondary></indexterm>
<indexterm id='idxartistsrecordingindustrypaymentsto' class='startofrange'><primary>artists</primary><secondary>recording industry payments to</secondary></indexterm>
<para>
Radio was also born of piracy.
</para>
<para>
When a radio station plays a record on the air, that constitutes a
<quote>public performance</quote> of the composer's work.<footnote><para>
<!-- f12 -->
See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At the beginning,
record companies printed <quote>Not Licensed for Radio Broadcast</quote> 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 <citetitle>RCA Manufacturing Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd
Cir. 1940). See also Randal C. Picker, <quote>From Edison to the Broadcast
Flag: Mechanisms of Consent and Refusal and the Propertization of
Copyright,</quote> <citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.
<indexterm><primary>Hand, Learned</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
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.
</para>
<para>
But when the radio station plays a record, it is not only performing a
copy of the <emphasis>composer's</emphasis> work. The radio station is
also performing a copy of the <emphasis>recording artist's</emphasis>
work. It's one thing to have <quote>Happy Birthday</quote> 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.
<indexterm><primary>Lovett, Lyle</primary></indexterm>
<!-- PAGE BREAK 72 -->
</para>
<para>
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.
</para>
<indexterm id='idxmadonna' class='startofrange'><primary>Madonna</primary></indexterm>
<para>
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.
</para>
<para>
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
<quote>protected</quote> right. The radio station thus gets to
<emphasis>pirate</emphasis> the value of Madonna's work without paying
her anything.
</para>
<indexterm startref='idxartistsrecordingindustrypaymentsto' class='endofrange'/>
<indexterm startref='idxmadonna' class='endofrange'/>
<para>
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.
</para>
<indexterm startref='idxrecordingindustryradiobroadcastand' class='endofrange'/>
</section>
<section id="cabletv">
<title>Cable TV</title>
<indexterm id='idxcabletelevision' class='startofrange'><primary>cable television</primary></indexterm>
<para>
Cable TV was also born of a kind of piracy.
</para>
<para>
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
<!-- PAGE BREAK 73 -->
for what they sold. Cable companies were thus Napsterizing
broadcasters' content, but more egregiously than anything Napster ever
did&mdash; Napster never charged for the content it enabled others to
give away.
</para>
<indexterm><primary>Anello, Douglas</primary></indexterm>
<indexterm><primary>Burdick, Quentin</primary></indexterm>
<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
<quote>unfair and potentially destructive competition.</quote><footnote><para>
<!-- f13 -->
Copyright Law Revision&mdash;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).
<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
</para></footnote>
There may have been a <quote>public interest</quote> 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, <quote>Does public
interest dictate that you use somebody else's property?</quote><footnote><para>
<!-- f14 -->
Copyright Law Revision&mdash;CATV, 116 (statement of Douglas A. Anello,
general counsel of the National Association of Broadcasters).
</para></footnote>
As another broadcaster put it,
</para>
<blockquote>
<para>
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.<footnote><para>
<!-- f15 -->
Copyright Law Revision&mdash;CATV, 126 (statement of Ernest W. Jennes,
general counsel of the Association of Maximum Service Telecasters, Inc.).
</para></footnote>
</para>
</blockquote>
<para>
Again, the demand of the copyright holders seemed reasonable enough:
</para>
<blockquote>
<para>
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.<footnote><para>
<!-- f16 -->
Copyright Law Revision&mdash;CATV, 169 (joint statement of Arthur B.
Krim, president of United Artists Corp., and John Sinn, president of
United Artists Television, Inc.).
</para></footnote>
</para>
</blockquote>
<indexterm><primary>Heston, Charlton</primary></indexterm>
<para>
These were <quote>free-ride[rs],</quote> Screen Actor's Guild president Charlton
Heston said, who were <quote>depriving actors of
compensation.</quote><footnote><para>
<!-- f17 -->
Copyright Law Revision&mdash;CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
<indexterm><primary>Heston, Charlton</primary></indexterm>
</para>
</footnote>
</para>
<para>
But again, there was another side to the debate. As Assistant Attorney
General Edwin Zimmerman put it,
</para>
<blockquote>
<para>
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. &hellip; The
<!-- PAGE BREAK 74 -->
question here is how much compensation they should have and
how far back they should carry their right to compensation.<footnote><para>
<!-- f18 -->
Copyright Law Revision&mdash;CATV, 216 (statement of Edwin M.
Zimmerman, acting assistant attorney general).
<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para></footnote>
<indexterm><primary>Zimmerman, Edwin</primary></indexterm>
</para>
</blockquote>
<para>
Copyright owners took the cable companies to court. Twice the Supreme
Court held that the cable companies owed the copyright owners nothing.
</para>
<para>
It took Congress almost thirty years before it resolved the question
of whether cable companies had to pay for the content they <quote>pirated.</quote>
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 <quote>piracy</quote> of the value
created by broadcasters' content.
</para>
<indexterm startref='idxpiracyindevelopmentofcontentindustry' class='endofrange'/>
<indexterm startref='idxcabletelevision' class='endofrange'/>
<para>
<emphasis role='strong'>These separate stories</emphasis> sing a
common theme. If <quote>piracy</quote> means using value from someone
else's creative property without permission from that creator&mdash;as
it is increasingly described today<footnote><para>
<!-- f19 -->
See, for example, National Music Publisher's Association, <citetitle>The Engine
of Free Expression: Copyright on the Internet&mdash;The Myth of Free
Information</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #13</ulink>. <quote>The
threat of piracy&mdash;the use of someone else's creative work without
permission or compensation&mdash;has grown with the Internet.</quote>
</para></footnote>
&mdash; then <emphasis>every</emphasis> industry affected by copyright
today is the product and beneficiary of a certain kind of