piracy

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Since the inception of the law regulating creative property, there has been a war against "piracy." The precise contours of this concept, "piracy," are hard to sketch, but the animating injustice is easy to capture.
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As Lord Mansfield wrote in a case that extended the reach of English copyright law to include sheet music,
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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.1
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Today we are in the middle of another "war" against "piracy." The Internet has provoked this war. The Internet makes possible the efficient spread of content. Peer-to-peer (p2p) file sharing is among the most efficient of the efficient technologies the Internet enables. Using distributed intelligence, p2p systems facilitate the easy spread of content in a way unimagined a generation ago.
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This efficiency does not respect the traditional lines of copyright.
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The network doesn't discriminate between the sharing of copyrighted and uncopyrighted content. Thus has there been a vast amount of sharing of copyrighted content. That sharing in turn has excited the war, as copyright owners fear the sharing will "rob the author of the profit." The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their "property" against this "piracy." A generation of Americans, the warriors warn, is being raised to believe that "property" should be "free." Forget tattoos, never mind body piercing?our kids are becoming thieves!
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There's no doubt that "piracy" is wrong, and that pirates should be punished. But before we summon the executioners, we should put this notion of "piracy" in some context. For as the concept is increasingly used, at its core is an extraordinary idea that is almost certainly wrong.
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The idea goes something like this:
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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.
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This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the "if value, then right" theory of creative property2?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.3 There was "value" (the songs) so there must have been a "right"?even against the Girl Scouts.
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This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system of law protecting creative property. But the "if value, then right" theory of creative property has never been America's theory of creative property.
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It has never taken hold within our law.
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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.
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The source of this confusion is a distinction that the law no longer takes care to draw?the distinction between republishing someone?s work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both.
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Before the technologies of the Internet, this conflation didn't matter all that much. The technologies of publishing were expensive; that meant the vast majority of publishing was commercial. Commercial entities could bear the burden of the law?even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business.
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But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of commercial creators but effectively that of anyone. Although that expansion would not matter much if copyright law regulated only "copying," when the law regulates as broadly and obscurely as it does, the extension matters a lot. The burden of this law now vastly outweighs any original benefit?certainly as it affects noncommercial creativity, and increasingly as it affects commercial creativity as well. Thus, as we?ll see more clearly in the chapters below, the law's role is less and less to support creativity, and more and more to protect certain industries against competition. Just at the time digital technology could unleash an extraordinary range of commercial and noncommercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may be seeing, as Richard Florida writes, the "Rise of the Creative Class."4 Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class.
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These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper context the current battles about behavior labeled "piracy."

Chapter One: Creators

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In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent flop called Plane Crazy.
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In November, in New York City's Colony Theater, in the first widely distributed cartoon synchronized with sound, Steamboat Willie brought to life the character that would become Mickey Mouse.
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Synchronized sound had been introduced to film a year earlier in the movie The Jazz Singer. That success led Walt Disney to copy the technique and mix sound with cartoons. No one knew whether it would work or, if it did work, whether it would win an audience. But when Disney ran a test in the summer of 1928, the results were unambiguous.
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As Disney describes that first experiment, 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.
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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.
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The synchronization was pretty close.
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The effect on our little audience was nothing less than electric.
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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!1
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Disney's then partner, and one of animation's most extraordinary talents, Ub Iwerks, put it more strongly: "I have never been so thrilled in my life. Nothing since has ever equaled it."
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Disney had created something very new, based upon something relatively new. Synchronized sound brought life to a form of creativity that had rarely"except in Disney's hands"been anything more than filler for other films. Throughout animation's early history, it was Dis- ney's invention that set the standard that others struggled to match.
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And quite often, Disney's great genius, his spark of creativity, was built upon the work of others.
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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.
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That genius was Buster Keaton. The film was Steamboat Bill, Jr.
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Keaton was born into a vaudeville family in 1895. In the era of silent film, he had mastered using broad physical comedy as a way to spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was a classic of this form, famous among film buffs for its incredible stunts.
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The film was classic Keaton?wildly popular and among the best of its genre.
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Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
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The coincidence of titles is not coincidental. Steamboat Willie is a di22 rect cartoon parody of Steamboat Bill,2 and both are built upon a common song as a source. It is not just from the invention of synchronized sound in The Jazz Singer that we get Steamboat Willie. It is also from Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill," that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse.
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This "borrowing" was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream films of his day.3 So did many others. Early cartoons are filled with knockoffs?slight variations on winning themes; retellings of ancient stories. The key to success was the brilliance of the differences. With Disney, it was sound that gave his animation its spark. Later, it was the quality of his work relative to the production-line cartoons with which he competed. Yet these additions were built upon a base that was borrowed.
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Disney added to the work of others before him, creating something new out of something just barely old.
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Sometimes this borrowing was slight. Sometimes it was significant.
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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.
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Disney took these stories and retold them in a way that carried them into a new age. He animated the stories, with both characters and light. Without removing the elements of fear and danger altogether, he made funny what was dark and injected a genuine emotion of compassion where before there was fear. And not just with the work of the Brothers Grimm. Indeed, the catalog of Disney work drawing upon the work of others is astonishing when set together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), and The Jungle Book (1967)?not to mention a recent example that we should perhaps quickly forget, Treasure Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn.
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This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would say that there is no creativity except this kind. We don't need to go that far to recognize its importance. We could call this "Disney creativity," though that would be a bit misleading. It is, more precisely, "Walt Disney creativity"?a form of expression and genius that builds upon the culture around us and makes it something different.
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In 1928, the culture that Disney was free to draw upon was relatively fresh. The public domain in 1928 was not very old and was therefore quite vibrant. The average term of copyright was just around thirty years?for that minority of creative work that was in fact copy- righted.4 That means that for thirty years, on average, the authors or copyright holders of a creative work had an "exclusive right" to control certain uses of the work. To use this copyrighted work in limited ways required the permission of the copyright owner.
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At the end of a copyright term, a work passes into the public domain.
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No permission is then needed to draw upon or use that work. No permission and, hence, no lawyers. The public domain is a "lawyer-free zone." Thus, most of the content from the nineteenth century was free for Disney to use and build upon in 1928. It was free for anyone? whether connected or not, whether rich or not, whether approved or not?to use and build upon.
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This is the ways things always were?until quite recently. For most of our history, the public domain was just over the horizon. From 1790 until 1978, the average copyright term was never more than thirty-two years, meaning that most culture just a generation and a half old was free for anyone to build upon without the permission of anyone else.
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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.
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Of course, Walt Disney had no monopoly on "Walt Disney creativity." Nor does America. The norm of free culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal.
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Consider, for example, a form of creativity that seems strange to many Americans but that is inescapable within Japanese culture:
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manga, or comics. The Japanese are fanatics about comics. Some 40 percent of publications are comics, and 30 percent of publication revenue derives from comics. They are everywhere in Japanese society, at every magazine stand, carried by a large proportion of commuters on Japan's extraordinary system of public transportation.
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Americans tend to look down upon this form of culture. That's an unattractive characteristic of ours. We?re likely to misunderstand much about manga, because few of us have ever read anything close to the stories that these "graphic novels" tell. For the Japanese, manga cover every aspect of social life. For us, comics are "men in tights." And anyway, it's not as if the New York subways are filled with readers of Joyce or even Hemingway. People of different cultures distract themselves in different ways, the Japanese in this interestingly different way.
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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.
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This is the phenomenon of doujinshi. Doujinshi are also comics, but they are a kind of copycat comic. A rich ethic governs the creation of doujinshi. It is not doujinshi if it is just a copy; the artist must make a contribution to the art he copies, by transforming it either subtly or significantly. A doujinshi comic can thus take a mainstream comic and develop it differently?with a different story line. Or the comic can keep the character in character but change its look slightly. There is no formula for what makes the doujinshi sufficiently "different." But they must be different if they are to be considered true doujinshi. Indeed, there are committees that review doujinshi for inclusion within shows and reject any copycat comic that is merely a copy.
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These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 "circles" of creators from across Japan produce these bits of Walt Disney creativity. More than 450,000 Japanese come together twice a year, in the largest public gathering in the country, to exchange and sell them. This market exists in parallel to the mainstream commercial manga market. In some ways, it obviously competes with that market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi market down. It flourishes, despite the competition and despite the law.
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The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under Japanese copyright law, which in this respect (on paper) mirrors American copyright law, the doujinshi market is an illegal one. Doujinshi are plainly "derivative works." There is no general practice by doujinshi artists of securing the permission of the manga creators. Instead, the practice is simply to take and modify the creations of others, as Walt Disney did with Steamboat Bill, Jr. Under both Japanese and American law, that "taking" without the permission of the original copyright owner is illegal. It is an infringement of the original copyright to make a copy or a derivative work without the original copyright owner?s permission.
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Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga flourish. As American graphic novelist Judd Winick said to me, "The early days of comics in America are very much like what's going on in Japan now....American comics were born out of copying each other.... That's how [the artists] learn to draw?by going into comic books and not tracing them, but looking at them and copying them" and building from them.5
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American comics now are quite different, Winick explains, in part because of the legal difficulty of adapting comics the way doujinshi are allowed. Speaking of Superman, Winick told me, "there are these rules and you have to stick to them." There are things Superman "cannot" do. "As a creator, it's frustrating having to stick to some parameters which are fifty years old."
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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.6
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The problem with this story, however, as Mehra plainly acknowledges, is that the mechanism producing this laissez faire response is not clear. It may well be that the market as a whole is better off if doujinshi are permitted rather than banned, but that doesn't explain why individual copyright owners don't sue nonetheless. If the law has no general exception for doujinshi, and indeed in some cases individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this "free taking" by the doujinshi culture? I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by a friend from a major Japanese law firm. "We don't have enough lawyers," he told me one afternoon. There "just aren't enough resources to prosecute cases like this."
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This is a theme to which we will return: that regulation by law is a function of both the words on the books and the costs of making those words have effect. For now, focus on the obvious question that is begged: Would Japan be better off with more lawyers? Would manga be richer if doujinshi artists were regularly prosecuted? Would the Japanese gain something important if they could end this practice of uncompensated sharing? Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help their clients or hurt them?
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Let's pause for a moment.
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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.
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We live in a world that celebrates "property." I am one of those celebrants.
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I believe in the value of property in general, and I also believe in the value of that weird form of property that lawyers call "intellectual property."7 A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish without intellectual property.
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But it takes just a second's reflection to realize that there is plenty of value out there that "property" doesn't capture. I don't mean "money can't buy you love," but rather, value that is plainly part of a process of production, including commercial as well as noncommercial production.
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If Disney animators had stolen a set of pencils to draw Steamboat Willie, we?d have no hesitation in condemning that taking as wrong? even though trivial, even if unnoticed. Yet there was nothing wrong, at least under the law of the day, with Disney's taking from Buster Keaton or from the Brothers Grimm. There was nothing wrong with the taking from Keaton because Disney's use would have been considered "fair." There was nothing wrong with the taking from the Grimms because the Grimms' work was in the public domain.
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Thus, even though the things that Disney took?or more generally, the things taken by anyone exercising Walt Disney creativity?are valuable, our tradition does not treat those takings as wrong. Some things remain free for the taking within a free culture, and that freedom is good.
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The same with the doujinshi culture. If a doujinshi artist broke into a publisher's office and ran off with a thousand copies of his latest work?or even one copy?without paying, we?d have no hesitation in saying the artist was wrong. In addition to having trespassed, he would have stolen something of value. The law bans that stealing in whatever form, whether large or small.
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Yet there is an obvious reluctance, even among Japanese lawyers, to say that the copycat comic artists are "stealing." This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard to say why.
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It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the work of other scientists without asking or paying for the privilege. ("Excuse me, Professor Einstein, but may I have permission to use your theory of relativity to show that you were wrong about quantum physics"?) Acting companies perform adaptations of the works of Shakespeare without securing permission from anyone. (Does anyone believe Shakespeare would be better spread within our culture if there were a central Shakespeare rights clearinghouse that all productions of Shakespeare must appeal to first?) And Hollywood goes through cycles with a certain kind of movie: five asteroid films in the late 1990s; two volcano disaster films in 1997.
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Creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now.
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That building is always and everywhere at least partially done without permission and without compensating the original creator. No society, free or controlled, has ever demanded that every use be paid for or that permission for Walt Disney creativity must always be sought. Instead, every society has left a certain bit of its culture free for the taking?free societies more fully than unfree, perhaps, but all societies to some degree.
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The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard question instead is "How free is this culture"? How much, and how broadly, is the culture free for others to take and build upon? Is that freedom limited to party members? To members of the royal family? To the top ten corporations on the New York Stock Exchange? Or is that freedom spread broadly? To artists generally, whether affiliated with the Met or not? To musicians generally, whether white or not? To filmmakers generally, whether affiliated with a studio or not?
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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.

Chapter Two: Mere Copyists

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In 1839, Louis Daguerre invented the first practical technology for producing what we would call "photographs." Appropriately enough, they were called "daguerreotypes." The process was complicated and expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was even an American Daguerre Association that helped regulate the industry, as do all such associations, by keeping competition down so as to keep prices up.)
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Yet despite high prices, the demand for daguerreotypes was strong.
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This pushed inventors to find simpler and cheaper ways to make "automatic pictures." William Talbot soon discovered a process for making "negatives." But because the negatives were glass, and had to be kept wet, the process still remained expensive and cumbersome. In the 1870s, dry plates were developed, making it easier to separate the taking of a picture from its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs.
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The technological change that made mass photography possible didn't happen until 1888, and was the creation of a single man. George
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Eastman, himself an amateur photographer, was frustrated by the 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.
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Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. The device was marketed on the basis of its simplicity. "You press the button and we do the rest."1 As he described in The Kodak Primer:
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The principle of the Kodak system is the separation of the work that any person whomsoever can do in making a photograph, from the work that only an expert can do....We furnish anybody, man, woman or child, who has sufficient intelligence to point a box straight and press a button, with an instrument which altogether removes from the practice of photography the necessity for exceptional facilities or, in fact, any special knowledge of the art. It can be employed without preliminary study, without a darkroom and without chemicals.2
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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.
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From 1888 through 1909, while industrial production was rising by 4.7 percent, photographic equipment and material sales increased by 11 percent.3 Eastman Kodak's sales during the same period experienced an average annual increase of over 17 percent.4
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The real significance of Eastman's invention, however, was not economic. It was social. Professional photography gave individuals a glimpse of places they would never otherwise see. Amateur photography gave them the ability to record their own lives in a way they had never been able to do before. As author Brian Coe notes, "For the first time the snapshot album provided the man on the street with a permanent record of his family and its activities. ...For the first time in history there exists an authentic visual record of the appearance and activities of the common man made without [literary] interpretation or bias."5
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In this way, the Kodak camera and film were technologies of expression.
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The pencil or paintbrush was also a technology of expression, of course. But it took years of training before they could be deployed by amateurs in any useful or effective way. With the Kodak, expression was possible much sooner and more simply. The barrier to expression was lowered. Snobs would sneer at its "quality"; professionals would discount it as irrelevant. But watch a child study how best to frame a picture and you get a sense of the experience of creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before.
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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.
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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.6
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The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was "taking" something from the person or building whose photograph he shot?pirating something of value. Some even thought he was taking the target's soul. Just as Disney was not free to take the pencils that his animators used to draw Mickey, so, too, should these photographers not be free to take images that they thought valuable.
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On the other side was an argument that should be familiar, as well.
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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.
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(Louis Brandeis, who would become a Supreme Court Justice, thought the rule should be different for images from private spaces.7) It may be that this means that the photographer gets something for nothing. Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source.
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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.
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(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.8)
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We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the photographer, then the photographer would have had to demonstrate permission. Perhaps Eastman Kodak would have had to demonstrate permission, too, before it developed the film upon which images were captured. After all, if permission were not granted, then Eastman Kodak would be benefiting from the "theft" committed by the photographer. Just as Napster benefited from the copyright infringements committed by Napster users, Kodak would be benefiting from the "image-right" infringement of its photographers. We could imagine the law then requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission.
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But though we could imagine this system of permission, it would be very hard to see how photography could have flourished as it did if the requirement for permission had been built into the rules that govern it. Photography would have existed. It would have grown in importance over time. Professionals would have continued to use the technology as they did?since professionals could have more easily borne the burdens of the permission system. But the spread of photography to ordinary people would not have occurred. Nothing like that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been realized.
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If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses painted over with colorful and striking images, and the logo "Just Think!" in place of the name of a school. But there's little that's "just" cerebral in the projects that these busses enable.
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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.
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Rather the "film" of digital cameras. Just Think! is a project that enables kids to make films, as a way to understand and critique the filmed culture that they find all around them. Each year, these busses travel to more than thirty schools and enable three hundred to five hundred children to learn something about media by doing something with media.
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By doing, they think. By tinkering, they learn.
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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.
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As one analyst puts it, "Five years ago, a good real-time digital video editing system cost $25,000. Today you can get professional quality for $595."9 These buses are filled with technology that would have cost hundreds of thousands just ten years ago. And it is now feasible to imagine not just buses like this, but classrooms across the country where kids are learning more and more of something teachers call "media literacy."
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"Media literacy," as Dave Yanofsky, the executive director of Just Think!, puts it, "is the ability ... to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it."
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This may seem like an odd way to think about "literacy." For most people, literacy is about reading and writing. Faulkner and Hemingway and noticing split infinitives are the things that "literate" people know about.
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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,10 it is increasingly important to understand the "grammar" of media. For just as there is a grammar for the written word, so, too, is there one for media. And just as kids learn how to write by writing lots of terrible prose, kids learn how to write media by constructing lots of (at least at first) terrible media.
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A growing field of academics and activists sees this form of literacy as crucial to the next generation of culture. For though anyone who has written understands how difficult writing is?how difficult it is to sequence the story, to keep a reader's attention, to craft language to be understandable?few of us have any real sense of how difficult media is. Or more fundamentally, few of us have a sense of how media works, how it holds an audience or leads it through a story, how it triggers emotion or builds suspense.
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It took filmmaking a generation before it could do these things well.
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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.
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This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director of the University of Southern California's Annenberg Center for Communication and dean of the USC School of Cinema-Television, explained to me, the grammar was about ?the placement of objects, color,...rhythm, pacing, and texture.?11 But as computers open up an interactive space where a story is ?played? as well as experienced, that grammar changes. The simple control of narrative is lost, and so other techniques are necessary. Author Michael Crichton had mastered the narrative of science fiction.
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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.12
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This skill is precisely the craft a filmmaker learns. As Daley describes, ?people are very surprised about how they are led through a film. [I]t is perfectly constructed to keep you from seeing it, so you have no idea. If a filmmaker succeeds you do not know how you were led.? If you know you were led through a film, the film has failed.
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Yet the push for an expanded literacy?one that goes beyond text to include audio and visual elements?is not about making better film directors.
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The aim is not to improve the profession of filmmaking at all.
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Instead, as Daley explained,
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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.
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?Read-only.? Passive recipients of culture produced elsewhere.
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Couch potatoes. Consumers. This is the world of media from the twentieth century.
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The twenty-first century could be different. This is the crucial point:
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It could be both read and write. Or at least reading and better understanding the craft of writing. Or best, reading and understanding the tools that enable the writing to lead or mislead. The aim of any literacy, and this literacy in particular, is to ?empower people to choose the appropriate language for what they need to create or express.?13 It is to enable students ?to communicate in the language of the twenty-first century.?14
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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.
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The high school was a very poor inner-city Los Angeles school. In all the traditional measures of success, this school was a failure. But Daley and Barish ran a program that gave kids an opportunity to use film to express meaning about something the students know something about?gun violence.
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The class was held on Friday afternoons, and it created a relatively new problem for the school. While the challenge in most classes was getting the kids to come, the challenge in this class was keeping them away. The ?kids were showing up at 6 A.M. and leaving at 5 at night,? said Barish. They were working harder than in any other class to do what education should be about?learning how to express themselves.
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Using whatever ?free web stuff they could find,? and relatively simple tools to enable the kids to mix ?image, sound, and text,? Barish said this class produced a series of projects that showed something about gun violence that few would otherwise understand. This was an issue close to the lives of these students. The project ?gave them a tool and empowered them to be able to both understand it and talk about it,? Barish explained. That tool succeeded in creating expression?far more successfully and powerfully than could have been created using only text. ?If you had said to these students, ?you have to do it in text,? they would?ve just thrown their hands up and gone and done something else,? Barish described, in part, no doubt, because expressing themselves in text is not something these students can do well. Yet neither is text a form in which these ideas can be expressed well. The power of this message depended upon its connection to this form of expression.
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?But isn't education about teaching kids to write?? I asked. In part, of course, it is. But why are we teaching kids to write? Education, Daley explained, is about giving students a way of ?constructing meaning.? To say that that means just writing is like saying teaching writing is only about teaching kids how to spell. Text is one part?and increasingly, not the most powerful part?of constructing meaning. As Daley explained in the most moving part of our interview, 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.
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Because they can?t. You know, you?ve got Johnny who can look at a video, he can play a video game, he can do graffiti all over your walls, he can take your car apart, and he can do all sorts of other things. He just can't read your text. So Johnny comes to school and you say, ?Johnny, you?re illiterate. Nothing you can do matters.?
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Well, Johnny then has two choices: He can dismiss you or he [can] dismiss himself. If his ego is healthy at all, he's going to dismiss you. [But i]nstead, if you say, ?Well, with all these things that you can do, let's talk about this issue. Play for me music that you think reflects that, or show me images that you think reflect that, or draw for me something that reflects that.? Not by giving a kid a video camera and ...saying, ?Let's go have fun with the video camera and make a little movie.? But instead, really help you take these elements that you understand, that are your language, and construct meaning about the topic
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That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these classes, they bump up against the fact, ?I need to explain this and I really need to write something.? And as one of the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
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Because they needed to. There was a reason for doing it. They needed to say something, as opposed to just jumping through your hoops. They actually needed to use a language that they didn't speak very well. But they had come to understand that they had a lot of power with this language.?
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When two planes crashed into the World Trade Center, another into the Pentagon, and a fourth into a Pennsylvania field, all media around the world shifted to this news. Every moment of just about every day for that week, and for weeks after, television in particular, and media generally, retold the story of the events we had just witnessed. The telling was a retelling, because we had seen the events that were described. The genius of this awful act of terrorism was that the delayed second attack was perfectly timed to assure that the whole world would be watching.
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These retellings had an increasingly familiar feel. There was music scored for the intermissions, and fancy graphics that flashed across the screen. There was a formula to interviews. There was ?balance,? and seriousness. This was news choreographed in the way we have increasingly come to expect it, ?news as entertainment,? even if the entertainment is tragedy.
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But in addition to this produced news about the ?tragedy of September 11,? those of us tied to the Internet came to see a very different production as well. The Internet was filled with accounts of the same events. Yet these Internet accounts had a very different flavor. Some people constructed photo pages that captured images from around the world and presented them as slide shows with text. Some offered open letters. There were sound recordings. There was anger and frustration.
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There were attempts to provide context. There was, in short, an extraordinary worldwide barn raising, in the sense Mike Godwin uses the term in his book Cyber Rights, around a news event that had captured the attention of the world. There was ABC and CBS, but there was also the Internet.
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I don't mean simply to praise the Internet?though I do think the people who supported this form of speech should be praised. I mean instead to point to a significance in this form of speech. For like a Kodak, the Internet enables people to capture images. And like in a movie by a student on the ?Just Think!? bus, the visual images could be mixed with sound or text.
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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 tradi- tion?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.
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September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that has grown dramatically was just beginning to come into public consciousness: the Web-log, or blog. The blog is a kind of public diary, and within some cultures, such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way?it's a kind of electronic Jerry Springer, available anywhere in the world.
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But in the United States, blogs have taken on a very different character.
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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.
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They are arguably the most important form of unchoreographed public discourse that we have.
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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.
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Of course we have elections, and most of the time the courts allow those elections to count. A relatively small number of people vote in those elections. The cycle of these elections has become totally professionalized and routinized. Most of us think this is democracy.
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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.
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This was the idea that captured the imagination of Alexis de Tocqueville, the nineteenth-century French lawyer who wrote the most important account of early ?Democracy in America.? It wasn?t popular elections that fascinated him?it was the jury, an institution that gave ordinary people the right to choose life or death for other citizens.
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And most fascinating for him was that the jury didn't just vote about the outcome they would impose. They deliberated. Members argued about the ?right? result; they tried to persuade each other of the ?right? result, and in criminal cases at least, they had to agree upon a unanimous result for the process to come to an end.15
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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.16 And in some towns in New England, something close to deliberation remains. But for most of us for most of the time, there is no time or place for ?democratic deliberation? to occur.
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More bizarrely, there is generally not even permission for it to occur.
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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.17 We say what our friends want to hear, and hear very little beyond what our friends say.
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Enter the blog. The blog's very architecture solves one part of this problem. People post when they want to post, and people read when they want to read. The most difficult time is synchronous time. Technologies that enable asynchronous communication, such as e-mail, increase the opportunity for communication. Blogs allow for public discourse without the public ever needing to gather in a single public place.
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But beyond architecture, blogs also have solved the problem of norms. There's no norm (yet) in blog space not to talk about politics.
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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.
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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.
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One direct effect is on stories that had a different life cycle in the mainstream media. The Trent Lott affair is an example. When Lott ?misspoke? at a party for Senator Strom Thurmond, essentially praising Thurmond's segregationist policies, he calculated correctly that this story would disappear from the mainstream press within forty-eight hours. It did. But he didn't calculate its life cycle in blog space. The bloggers kept researching the story. Over time, more and more instances of the same ?misspeaking? emerged. Finally, the story broke back into the mainstream press. In the end, Lott was forced to resign as senate majority leader.18
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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.
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If they lose readers, they lose revenue. Like sharks, they must move on.
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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.
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There's a second way, as well, in which blogs have a different cycle from the mainstream press. As Dave Winer, one of the fathers of this movement and a software author for many decades, told me, another difference is the absence of a financial ?conflict of interest.? ?I think you have to take the conflict of interest? out of journalism, Winer told me.
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?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.?
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These conflicts become more important as media becomes more concentrated (more on this below). A concentrated media can hide more from the public than an unconcentrated media can?as CNN admitted it did after the Iraq war because it was afraid of the consequences to its own employees.19 It also needs to sustain a more coherent account. (In the middle of the Iraq war, I read a post on the Internet from someone who was at that time listening to a satellite uplink with a reporter in Iraq. The New York headquarters was telling the reporter over and over that her account of the war was too bleak: She needed to offer a more optimistic story. When she told New York that wasn't warranted, they told her that they were writing ?the story.?)
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Blog space gives amateurs a way to enter the debate??amateur? not in the sense of inexperienced, but in the sense of an Olympic athlete, meaning not paid by anyone to give their reports. It allows for a much broader range of input into a story, as reporting on the Columbia disaster revealed, when hundreds from across the southwest United States turned to the Internet to retell what they had seen.20 And it drives readers to read across the range of accounts and ?triangulate,? as Winer puts it, the truth. Blogs, Winer says, are ?communicating directly with our constituency, and the middle man is out of it??with all the benefits, and costs, that might entail.
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Winer is optimistic about the future of journalism infected with blogs. ?It's going to become an essential skill,? Winer predicts, for public figures and increasingly for private figures as well. It's not clear that ?journalism? is happy about this?some journalists have been told to curtail their blogging.21 But it is clear that we are still in transition. ?A lot of what we are doing now is warm-up exercises,? Winer told me.
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There is a lot that must mature before this space has its mature effect.
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And as the inclusion of content in this space is the least infringing use of the Internet (meaning infringing on copyright), Winer said, ?we will be the last thing that gets shut down.?
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This speech affects democracy. Winer thinks that happens because ?you don't have to work for somebody who controls, [for] a gatekeeper.? That is true. But it affects democracy in another way as well.
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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.
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The writing of ideas, arguments, and criticism improves democracy.
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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.
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John Seely Brown is the chief scientist of the Xerox Corporation.
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His work, as his Web site describes it, is ?human learning and ...the creation of knowledge ecologies for creating ... innovation.? 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.
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As Brown believes, we learn by tinkering. When ?a lot of us grew up,? he explains, that tinkering was done ?on motorcycle engines, lawnmower engines, automobiles, radios, and so on.? But digital technologies enable a different kind of tinkering?with abstract ideas though in concrete form. The kids at Just Think! not only think about how acommercial portrays a politician; using digital technology, they can take the commercial apart and manipulate it, tinker with it to see how it does what it does. Digital technologies launch a kind of bricolage, or ?free collage,? as Brown calls it. Many get to add to or transform the tinkering of many others.
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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.
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This opportunity creates a ?completely new kind of learning platform,? as Brown describes. ?As soon as you start doing that, you . . .
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unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it.? Each effort is a kind of apprenticeship. ?Open source becomes a major apprenticeship platform.?
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In this process, ?the concrete things you tinker with are abstract.
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They are code.? Kids are ?shifting to the ability to tinker in the abstract, and this tinkering is no longer an isolated activity that you?re doing in your garage. You are tinkering with a community platform You are tinkering with other people's stuff. The more you tinker the more you improve.? The more you improve, the more you learn.
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This same thing happens with content, too. And it happens in the same collaborative way when that content is part of the Web. As Brown puts it, ?the Web [is] the first medium that truly honors multiple forms of intelligence.? Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web amplifies much more than text. ?The Web ...says if you are musical, if you are artistic, if you are visual, if you are interested in film ... [then] there is a lot you can start to do on this medium. [It] can now amplify and honor these multiple forms of intelligence.?
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Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think! teach: that this tinkering with culture teaches as well as creates. It develops talents differently, and it builds a different kind of recognition.
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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.
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The law and, increasingly, technology interfere with a freedom that technology, and curiosity, would otherwise ensure.
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These restrictions have become the focus of researchers and scholars.
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Professor Ed Felten of Princeton (whom we?ll see more of in chapter 10) has developed a powerful argument in favor of the ?right to tinker? as it applies to computer science and to knowledge in general.22 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.
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?This is where education in the twenty-first century is going,? Brown explains. We need to ?understand how kids who grow up digital think and want to learn.?
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?Yet,? as Brown continued, and as the balance of this book will evince, ?we are building a legal system that completely suppresses the natural tendencies of today's digital kids. ...We?re building an architecture that unleashes 60 percent of the brain [and] a legal system that closes down that part of the brain.?
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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.
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?No way to run a culture,? as Brewster Kahle, whom we?ll meet in chapter 9, quipped to me in a rare moment of despondence.

Chapter Three: Catalogs

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In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
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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.
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RPI is one of America's foremost technological research institutions.
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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.
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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.
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Search engines are a measure of a network's intimacy. Google brought the Internet much closer to all of us by fantastically improving the quality of search on the network. Specialty search engines can do this even better. The idea of ?intranet? search engines, search engines that search within the network of a particular institution, is to provide users of that institution with better access to material from that institution.
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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.
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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.
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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.
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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.
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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.
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Thus the index his search engine produced included pictures, which students could use to put on their own Web sites; copies of notes or research; copies of information pamphlets; movie clips that students might have created; university brochures?basically anything that users of the RPI network made available in a public folder of their computer.
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But the index also included music files. In fact, one quarter of the files that Jesse's search engine listed were music files. But that means, of course, that three quarters were not, and?so that this point is absolutely clear?Jesse did nothing to induce people to put music files in their public folders. He did nothing to target the search engine to these files. He was a kid tinkering with a Google-like technology at a university where he was studying information science, and hence, tinkering was the aim. Unlike Google, or Microsoft, for that matter, he made no money from this tinkering; he was not connected to any business that would make any money from this experiment. He was a kid tinkering with technology in an environment where tinkering with technology was precisely what he was supposed to do.
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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.
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A few hours later, Jesse was served with papers from the suit.
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As he read these papers and watched the news reports about them, he was increasingly astonished.
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?It was absurd,? he told me. ?I don't think I did anything wrong....
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I don't think there's anything wrong with the search engine that I ran or ...what I had done to it. I mean, I hadn't modified it in any way that promoted or enhanced the work of pirates. I just modified the search engine in a way that would make it easier to use??again, a search engine, which Jesse had not himself built, using the Windows 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.
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But the RIAA branded Jesse a pirate. They claimed he operated a network and had therefore ?willfully? violated copyright laws. They demanded that he pay them the damages for his wrong. For cases of ?willful infringement,? the Copyright Act specifies something lawyers call ?statutory damages.? These damages permit a copyright owner to claim $150,000 per infringement. As the RIAA alleged more than one hundred specific copyright infringements, they therefore demanded that Jesse pay them at least $15,000,000.
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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:
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huge demands for ?damages? that the RIAA claimed it was entitled to.
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If you added up the claims, these four lawsuits were asking courts in the United States to award the plaintiffs close to $100 billion?six times the total profit of the film industry in 2001.1
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Jesse called his parents. They were supportive but a bit frightened.
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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.
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The RIAA wanted Jesse to admit to doing something wrong. He refused. They wanted him to agree to an injunction that would essentially make it impossible for him to work in many fields of technology for the rest of his life. He refused. They made him understand that this process of being sued was not going to be pleasant. (As Jesse's father recounted to me, the chief lawyer on the case, Matt Oppenheimer, told Jesse, ?You don't want to pay another visit to a dentist like me.?) And throughout, the RIAA insisted it would not settle the case until it took every penny Jesse had saved.
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Jesse's family was outraged at these claims. They wanted to fight.
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But Jesse's uncle worked to educate the family about the nature of the American legal system. Jesse could fight the RIAA. He might even win. But the cost of fighting a lawsuit like this, Jesse was told, would be at least $250,000. If he won, he would not recover that money. If he won, he would have a piece of paper saying he had won, and a piece of paper saying he and his family were bankrupt.
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So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement.
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The recording industry insists this is a matter of law and morality.
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Let's put the law aside for a moment and think about the morality.
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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.
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Artists, on the other hand, are not well paid. The average recording artist makes $45,900.2 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?3
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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:
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I was definitely not an activist [before]. I never really meant to be an activist. ... [But] I?ve been pushed into this. In no way did I ever foresee anything like this, but I think it's just completely absurd what the RIAA has done.
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Jesse's parents betray a certain pride in their reluctant activist. As his father told me, Jesse ?considers himself very conservative, and so do I. ...He's not a tree hugger....I think it's bizarre that they would pick on him. But he wants to let people know that they?re sending the wrong message. And he wants to correct the record.?

Chapter Four: "Pirates"

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If ?piracy? means using the creative property of others without their permission?if ?if value, then right? is true?then the history of the content industry is a history of piracy. Every important sector of ?big media? today?film, records, radio, and cable TV?was born of a kind of piracy so defined. The consistent story is how last generation?s pirates join this generation's country club?until now.

Film

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The film industry of Hollywood was built by fleeing pirates.1 Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison. These controls were exercised through a monopoly ?trust,? the Motion Pictures Patents Company, and were based on Thomas Edison's creative property?patents.
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Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded.
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As one commentator tells one part of the story,
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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.
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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 re- voked.2
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The Napsters of those days, the ?independents,? were companies like Fox. And no less than today, these independents were vigorously resisted.
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?Shooting was disrupted by machinery stolen, and ?accidents? resulting in loss of negatives, equipment, buildings and sometimes life and limb frequently occurred.?3 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.
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Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the patent holder a truly ?limited? monopoly (just seventeen years at that time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edi- son's creative property.

Recorded Music

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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.
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At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of their music and the exclusive right to control public performances of their music. In other words, in 1900, if I wanted a copy of Phil Russel?s 1899 hit ?Happy Mose,? the law said I would have to pay for the right to get a copy of the musical score, and I would also have to pay for the right to perform it publicly.
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But what if I wanted to record ?Happy Mose,? using Edison?s phonograph or Fourneaux's player piano? Here the law stumbled. It was clear enough that I would have to buy any copy of the musical score that I performed in making this recording. And it was clear enough that I would have to pay for any public performance of the work I was recording.
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But it wasn't totally clear that I would have to pay for a ?public performance? if I recorded the song in my own house (even today, you don?t owe the Beatles anything if you sing their songs in the shower), or if I recorded the song from memory (copies in your brain are not?yet? regulated by copyright law). So if I simply sang the song into a recording device in the privacy of my own home, it wasn't clear that I owed the composer anything. And more importantly, it wasn't clear whether I owed the composer anything if I then made copies of those recordings.
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Because of this gap in the law, then, I could effectively pirate someone else's song without paying its composer anything.
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The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it,
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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.4
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The innovators who developed the technology to record other people's works were ?sponging upon the toil, the work, the talent, and genius of American composers,?5 and the ?music publishing industry? was thereby ?at the complete mercy of this one pirate.?6 As John Philip Sousa put it, in as direct a way as possible, ?When they make money out of my pieces, I want a share of it.?7
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These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that ?it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction.? Rather, the machines increased the sales of sheet music.8 In any case, the innovators argued, the job of Congress was ?to consider first the interest of [the public], whom they represent, and whose servants they are.? ?All talk about ?theft,? ? the general counsel of the American Graphophone Company wrote, ?is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute.?9
338
The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the law to make sure that composers would be paid for the ?mechanical reproductions? of their music. But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law.
339
American law ordinarily calls this a ?compulsory license,? but I will refer to it as a ?statutory license.? A statutory license is a license whose key terms are set by law. After Congress's amendment of the Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute.
340
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.
341
But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording industry through a kind of piracy?by giving recording artists a weaker right than it otherwise gives creative authors. The Beatles have less control over their creative work than Grisham does. And the beneficiaries of this less control are the recording industry and the public. The recording industry gets something of value for less than it otherwise would pay; the public gets access to a much wider range of musical creativity. Indeed, Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of rights holders, and that that power would stifle follow-on creativity.10
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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,
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the record producers argued vigorously that the compulsory license system must be retained. They asserted that the record in- dustry 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.11
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By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit.

Radio

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Radio was also born of piracy.
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When a radio station plays a record on the air, that constitutes a ?public performance? of the composer's work.12 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.
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But when the radio station plays a record, it is not only performing a copy of the composer's work. The radio station is also performing a copy of the recording artist's work. It's one thing to have ?Happy Birthday? sung on the radio by the local children's choir; it's quite another to have it sung by the Rolling Stones or Lyle Lovett. The recording artist is adding to the value of the composition performed on the radio station.
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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.
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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.
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This difference can be huge. Imagine you compose a piece of music.
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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.
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Imagine she does sing your song, and imagine she likes it a lot. She then decides to make a recording of your song, and it becomes a top hit. Under our law, every time a radio station plays your song, you get some money. But Madonna gets nothing, save the indirect effect on the sale of her CDs. The public performance of her recording is not a ?protected? right. The radio station thus gets to pirate the value of Madonna's work without paying her anything.
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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.

Cable TV

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Cable TV was also born of a kind of piracy.
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When cable entrepreneurs first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold. Cable companies were thus Napsterizing broad- casters' content, but more egregiously than anything Napster ever did? Napster never charged for the content it enabled others to give away.
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Broadcasters and copyright owners were quick to attack this theft.
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Rosel Hyde, chairman of the FCC, viewed the practice as a kind of ?unfair and potentially destructive competition.?13 There may have been a ?public interest? in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association of Broadcasters, asked Senator Quentin Burdick during testimony, ?Does public interest dictate that you use somebody else's property??14 As another broadcaster put it,
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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.15
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Again, the demand of the copyright holders seemed reasonable enough:
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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.16 These were ?free-ride[rs],? Screen Actor's Guild president Charlton Heston said, who were ?depriving actors of compensation.?17
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But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it,
362
Our point here is that unlike the problem of whether you have any copyright protection at all, the problem here is whether copyright holders who are already compensated, who already have a monopoly, should be permitted to extend that monopoly....The question here is how much compensation they should have and how far back they should carry their right to compensation.18
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Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing.
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It took Congress almost thirty years before it resolved the question of whether cable companies had to pay for the content they ?pirated.? In the end, Congress resolved this question in the same way that it resolved the question about record players and player pianos. Yes, cable companies would have to pay for the content that they broadcast; but the price they would have to pay was not set by the copyright owner.
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The price was set by law, so that the broadcasters couldn't exercise veto power over the emerging technologies of cable. Cable companies thus built their empire in part upon a ?piracy? of the value created by broadcasters? content.
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These separate stories sing a common theme. If ?piracy? means using value from someone else's creative property without permission from that creator?as it is increasingly described today19? then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV.... The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation?until now.

Chapter Five: "Piracy"

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There is piracy of copyrighted material. Lots of it. This piracy comes in many forms. The most significant is commercial piracy, the unauthorized taking of other people's content within a commercial context. Despite the many justifications that are offered in its defense, this taking is wrong. No one should condone it, and the law should stop it.
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But as well as copy-shop piracy, there is another kind of ?taking? that is more directly related to the Internet. That taking, too, seems wrong to many, and it is wrong much of the time. Before we paint this taking ?piracy,? however, we should understand its nature a bit more.
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For the harm of this taking is significantly more ambiguous than outright copying, and the law should account for that ambiguity, as it has so often done in the past.

Piracy I

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All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people's copyrighted content, copy it, and sell it?all without the permission of a copyright owner. The recording industry estimates that it loses about $4.6 billion every year to physical piracy1 (that works out to one in three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually worldwide to piracy.
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This is piracy plain and simple. Nothing in the argument of this book, nor in the argument that most people make when talking about the subject of this book, should draw into doubt this simple point:
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This piracy is wrong.
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Which is not to say that excuses and justifications couldn't be made for it. We could, for example, remind ourselves that for the first one hundred years of the American Republic, America did not honor foreign copyrights. We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right.
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That excuse isn't terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule.
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The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well.
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True, these local rules have, in effect, been imposed upon these countries. No country can be part of the world economy and choose not to protect copyright internationally. We may have been born a pi- rate nation, but we will not allow any other nation to have a similar childhood.
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If a country is to be treated as a sovereign, however, then its laws are its laws regardless of their source. The international law under which these nations live gives them some opportunities to escape the burden of intellectual property law.2 In my view, more developing nations should take advantage of that opportunity, but when they don?t, then their laws should be respected. And under the laws of these nations, this piracy is wrong.
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Alternatively, we could try to excuse this piracy by noting that in any case, it does no harm to the industry. The Chinese who get access to American CDs at 50 cents a copy are not people who would have bought those American CDs at $15 a copy. So no one really has any less money than they otherwise would have had.3
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This is often true (though I have friends who have purchased many thousands of pirated DVDs who certainly have enough money to pay for the content they have taken), and it does mitigate to some degree the harm caused by such taking. Extremists in this debate love to say, ?You wouldn't go into Barnes & Noble and take a book off of the shelf without paying; why should it be any different with on-line music??
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The difference is, of course, that when you take a book from Barnes & Noble, it has one less book to sell. By contrast, when you take an MP3 from a computer network, there is not one less CD that can be sold.
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The physics of piracy of the intangible are different from the physics of piracy of the tangible.
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This argument is still very weak. However, although copyright is a property right of a very special sort, it is a property right. Like all property rights, the copyright gives the owner the right to decide the terms under which content is shared. If the copyright owner doesn't want to sell, she doesn't have to. There are exceptions: important statutory licenses that apply to copyrighted content regardless of the wish of the copyright owner. Those licenses give people the right to ?take? copyrighted content whether or not the copyright owner wants to sell. But where the law does not give people the right to take content, it is wrong to take that content even if the wrong does no harm. If we have a property system, and that system is properly balanced to the technology of a time, then it is wrong to take property without the permission of a property owner. That is exactly what ?property? means.
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Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner. When the Chinese ?steal? Windows, that makes the Chinese dependent on Microsoft.
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Microsoft loses the value of the software that was taken. But it gains users who are used to life in the Microsoft world. Over time, as the nation grows more wealthy, more and more people will buy software rather than steal it. And hence over time, because that buying will benefit Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not eventually be buying Microsoft.
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Without piracy, then, Microsoft would lose.
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This argument, too, is somewhat true. The addiction strategy is a good one. Many businesses practice it. Some thrive because of it. Law students, for example, are given free access to the two largest legal databases. The companies marketing both hope the students will become so used to their service that they will want to use it and not the other when they become lawyers (and must pay high subscription fees).
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Still, the argument is not terribly persuasive. We don't give the alcoholic a defense when he steals his first beer, merely because that will make it more likely that he will buy the next three. Instead, we ordinarily allow businesses to decide for themselves when it is best to give their product away. If Microsoft fears the competition of GNU/Linux, then Microsoft can give its product away, as it did, for example, with Internet Explorer to fight Netscape. A property right means giving the property owner the right to say who gets access to what?at least ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then violating the law is still wrong.
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Thus, while I understand the pull of these justifications for piracy, and I certainly see the motivation, in my view, in the end, these efforts at justifying commercial piracy simply don't cut it. This kind of piracy is rampant and just plain wrong. It doesn't transform the content it steals; it doesn't transform the market it competes in. It merely gives someone access to something that the law says he should not have.
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Nothing has changed to draw that law into doubt. This form of piracy is flat out wrong.
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But as the examples from the four chapters that introduced this part suggest, even if some piracy is plainly wrong, not all ?piracy? is. Or at least, not all ?piracy? is wrong if that term is understood in the way it is increasingly used today. Many kinds of ?piracy? are useful and productive, to produce either new content or new ways of doing business.
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Neither our tradition nor any tradition has ever banned all ?piracy? in that sense of the term.
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This doesn't mean that there are no questions raised by the latest piracy concern, peer-to-peer file sharing. But it does mean that we need to understand the harm in peer-to-peer sharing a bit more before we condemn it to the gallows with the charge of piracy.
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For (1) like the original Hollywood, p2p sharing escapes an overly controlling industry; and (2) like the original recording industry, it simply exploits a new way to distribute content; but (3) unlike cable TV, no one is selling the content that is shared on p2p services.
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These differences distinguish p2p sharing from true piracy. They should push us to find a way to protect artists while enabling this sharing to survive.

Piracy II

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The key to the ?piracy? that the law aims to quash is a use that ?rob[s] the author of [his] profit.?4 This means we must determine whether and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit.
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Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations.
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Like every great advance in innovation on the Internet (and, arguably, off the Internet as well5), Shawn Fanning and crew had simply put together components that had been developed independently.
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The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the system.6 Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It boasts over 100 million members.) These services' systems are different architecturally, though not very different in function: Each enables users to make content available to any number of other users. With a p2p system, you can share your favorite songs with your best friend? or your 20,000 best friends.
399
According to a number of estimates, a huge proportion of Americans have tasted file-sharing technology. A study by Ipsos-Insight in September 2002 estimated that 60 million Americans had downloaded music?28 percent of Americans older than 12.7 A survey by the NPD group quoted in The New York Times estimated that 43 million citizens used file-sharing networks to exchange content in May 2003.8 The vast majority of these are not kids. Whatever the actual figure, a massive quantity of content is being ?taken? on these networks. The ease and inexpensiveness of file-sharing networks have inspired millions to enjoy music in a way that they hadn't before.
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Some of this enjoying involves copyright infringement. Some of it does not. And even among the part that is technically copyright infringement, calculating the actual harm to copyright owners is more complicated than one might think. So consider?a bit more carefully than the polarized voices around this debate usually do?the kinds of sharing that file sharing enables, and the kinds of harm it entails.
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File sharers share different kinds of content. We can divide these different kinds into four types.
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A. There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna CD is released, rather than buying the CD, these users simply take it. We might quibble about whether everyone who takes it would actually have bought it if sharing didn't make it available for free. Most probably wouldn't have, but clearly there are some who would.
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The latter are the target of category A: users who download instead of purchasing.
404
B. There are some who use sharing networks to sample music before purchasing it. Thus, a friend sends another friend an MP3 of an artist he's not heard of. The other friend then buys CDs by that artist. This is a kind of targeted advertising, quite likely to succeed.
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If the friend recommending the album gains nothing from a bad recommendation, then one could expect that the recommendations will actually be quite good. The net effect of this sharing could increase the quantity of music purchased.
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C. There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high. This use of sharing networks is among the most rewarding for many. Songs that were part of your childhood but have long vanished from the marketplace magically appear again on the network. (One friend told me that when she discovered Napster, she spent a solid weekend ?recalling? old songs. She was astonished at the range and mix of content that was available.) For content not sold, this is still technically a violation of copyright, though because the copyright owner is not selling the content anymore, the economic harm is zero?the same harm that occurs when I sell my collection of 1960s 45-rpm records to a local collector.
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D. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away.
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How do these different types of sharing balance out?
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Let's start with some simple but important points. From the perspective of the law, only type D sharing is clearly legal. From the perspective of economics, only type A sharing is clearly harmful.9 Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, yet good for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise available). So how sharing matters on balance is a hard question to answer?and certainly much more difficult than the current rhetoric around the issue suggests.
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Whether on balance sharing is harmful depends importantly on how harmful type A sharing is. Just as Edison complained about Hollywood, composers complained about piano rolls, recording artists complained about radio, and broadcasters complained about cable TV, the music industry complains that type A sharing is a kind of ?theft? that is ?devastating? the industry.
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While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the recording industry's practice to blame technology for any drop in sales. The history of cassette recording is a good example. As a study by Cap Gemini Ernst & Young put it, ?Rather than exploiting this new, popular technology, the labels fought it.?10 The labels claimed that every album taped was an album unsold, and when record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the problem, and banning or regulating technology was the answer.
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Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and the industry had a record turnaround. ?In the end,? Cap Gemini concludes, ?the ?crisis? ...was not the fault of the tapers?who did not [stop after MTV came into being] but had to a large extent resulted from stagnation in musical innovation at the major labels.?11
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But just because the industry was wrong before does not mean it is wrong today. To evaluate the real threat that p2p sharing presents to the industry in particular, and society in general?or at least the society that inherits the tradition that gave us the film industry, the record industry, the radio industry, cable TV, and the VCR?the question is not simply whether type A sharing is harmful. The question is also how harmful type A sharing is, and how beneficial the other types of sharing are.
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We start to answer this question by focusing on the net harm, from the standpoint of the industry as a whole, that sharing networks cause.
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The ?net harm? to the industry as a whole is the amount by which type A sharing exceeds type B. If the record companies sold more records through sampling than they lost through substitution, then sharing networks would actually benefit music companies on balance. They would therefore have little static reason to resist them.
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Could that be true? Could the industry as a whole be gaining because of file sharing? Odd as that might sound, the data about CD sales actually suggest it might be close.
417
In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 million to 803 million units; revenues fell 6.7 percent.12 This confirms a trend over the past few years. The RIAA blames Internet piracy for the trend, though there are many other causes that could account for this drop. SoundScan, for example, reports a more than 20 percent drop in the number of CDs released since 1999. That no doubt accounts for some of the decrease in sales. Rising prices could account for at least some of the loss. ?From 1999 to 2001, the average price of a CD rose 7.2 percent, from $13.04 to $14.19.?13 Competition from other forms of media could also account for some of the decline.
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As Jane Black of BusinessWeek notes, ?The soundtrack to the film High Fidelity has a list price of $18.98. You could get the whole movie [on DVD] for $19.99.?14
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But let's assume the RIAA is right, and all of the decline in CD sales is because of Internet sharing. Here's the rub: In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent.
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There are too many different things happening at the same time to explain these numbers definitively, but one conclusion is unavoidable:
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The recording industry constantly asks, ?What's the difference between downloading a song and stealing a CD???but their own numbers reveal the difference. If I steal a CD, then there is one less CD to sell. Every taking is a lost sale. But on the basis of the numbers the RIAA provides, it is absolutely clear that the same is not true of downloads. If every download were a lost sale?if every use of Kazaa ?rob[bed] the author of [his] profit??then the industry would have suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6 times the number of CDs sold were downloaded for free, and yet sales revenue dropped by just 6.7 percent, then there is a huge difference between ?downloading a song and stealing a CD.?
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These are the harms?alleged and perhaps exaggerated but, let's assume, real. What of the benefits? File sharing may impose costs on the recording industry. What value does it produce in addition to these costs?
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One benefit is type C sharing?making available content that is technically still under copyright but is no longer commercially available.
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This is not a small category of content. There are millions of tracks that are no longer commercially available.15 And while it's conceivable that some of this content is not available because the artist producing the content doesn't want it to be made available, the vast majority of it is unavailable solely because the publisher or the distributor has decided it no longer makes economic sense to the company to make it available.
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In real space?long before the Internet?the market had a simple response to this problem: used book and record stores. There are thousands of used book and used record stores in America today.16 These stores buy content from owners, then sell the content they buy. And under American copyright law, when they buy and sell this content, even if the content is still under copyright, the copyright owner doesn't get a dime. Used book and record stores are commercial entities; their owners make money from the content they sell; but as with cable companies before statutory licensing, they don't have to pay the copyright owner for the content they sell.
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Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because the person making the content available isn't making money from making the content available.
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It is also different, of course, because in real space, when I sell a record, I don't have it anymore, while in cyberspace, when someone shares my 1949 recording of Bernstein's ?Two Love Songs,? I still have it. That difference would matter economically if the owner of the 1949 copyright were selling the record in competition to my sharing. But we?re talking about the class of content that is not currently commercially available. The Internet is making it available, through cooperative sharing, without competing with the market.
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It may well be, all things considered, that it would be better if the copyright owner got something from this trade. But just because it may well be better, it doesn't follow that it would be good to ban used book stores. Or put differently, if you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well?
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Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur?the sharing of content that copyright owners want to have shared or for which there is no continuing copyright. This sharing clearly benefits authors and society. Science fiction author Cory Doctorow, for example, released his first novel, Down and Out in the Magic Kingdom, both free on-line and in bookstores on the same day. His (and his publisher?s) thinking was that the on-line distribution would be a great advertisement for the ?real? book. People would read part on-line, and then decide whether they liked the book or not. If they liked it, they would be more likely to buy it. Doctorow's content is type D content. If sharing networks enable his work to be spread, then both he and society are better off. (Actually, much better off: It is a great book!)
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Likewise for work in the public domain: This sharing benefits society with no legal harm to authors at all. If efforts to solve the problem of type A sharing destroy the opportunity for type D sharing, then we lose something important in order to protect type A content.
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The point throughout is this: While the recording industry understandably says, ?This is how much we?ve lost,? we must also ask, ?How much has society gained from p2p sharing? What are the efficiencies? What is the content that otherwise would be unavailable??
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For unlike the piracy I described in the first section of this chapter, much of the ?piracy? that file sharing enables is plainly legal and good.
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And like the piracy I described in chapter 4, much of this piracy is motivated by a new way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the recording industry, and cable TV, the question we should be asking about file sharing is how best to preserve its benefits while minimizing (to the extent possible) the wrongful harm it causes artists. The question is one of balance. The law should seek that balance, and that balance will be found only with time.
434
?But isn't the war just a war against illegal sharing? Isn't the target just what you call type A sharing??
435
You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing alone has been felt far beyond that one class of sharing. That much is obvious from the Napster case itself. When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements ?down to zero.?17
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If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement. There is no way to assure that a p2p system is used 100 percent of the time in compliance with the law, any more than there is a way to assure that 100 percent of VCRs or 100 percent of Xerox machines or 100 percent of handguns are used in compliance with the law. Zero tolerance means zero p2p.
437
The court's ruling means that we as a society must lose the benefits of p2p, even for the totally legal and beneficial uses they serve, simply to assure that there are zero copyright infringements caused by p2p.
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Zero tolerance has not been our history. It has not produced the content industry that we know today. The history of American law has been a process of balance. As new technologies changed the way content was distributed, the law adjusted, after some time, to the new technology.
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In this adjustment, the law sought to ensure the legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for creators. Sometimes less.
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So, as we?ve seen, when ?mechanical reproduction? threatened the interests of composers, Congress balanced the rights of composers against the interests of the recording industry. It granted rights to composers, but also to the recording artists: Composers were to be paid, but at a price set by Congress. But when radio started broadcasting the recordings made by these recording artists, and they complained to Congress that their ?creative property? was not being respected (since the radio station did not have to pay them for the creativity it broadcast), Congress rejected their claim. An indirect benefit was enough.
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Cable TV followed the pattern of record albums. When the courts rejected the claim that cable broadcasters had to pay for the content they rebroadcast, Congress responded by giving broadcasters a right to compensation, but at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the statutory price.
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This compromise, like the compromise affecting records and player pianos, served two important goals?indeed, the two central goals of any copyright legislation. First, the law assured that new innovators would have the freedom to develop new ways to deliver content. Second, the law assured that copyright holders would be paid for the content that was distributed. One fear was that if Congress simply required cable TV to pay copyright holders whatever they demanded for their content, then copyright holders associated with broadcasters would use their power to stifle this new technology, cable. But if Congress had permitted cable to use broadcasters' content for free, then it would have unfairly subsidized cable. Thus Congress chose a path that would assure compensation without giving the past (broadcasters) control over the future (cable).
443
In the same year that Congress struck this balance, two major producers and distributors of film content filed a lawsuit against another technology, the video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had produced, the Betamax. Disney's and Universal?s claim against Sony was relatively simple: Sony produced a device, Disney and Universal claimed, that enabled consumers to engage in copyright infringement. Because the device that Sony built had a ?record? button, the device could be used to record copyrighted movies and shows. Sony was therefore benefiting from the copyright infringement of its customers. It should therefore, Disney and Universal claimed, be partially liable for that infringement.
444
There was something to Disney's and Universal's claim. Sony did decide to design its machine to make it very simple to record television shows. It could have built the machine to block or inhibit any direct copying from a television broadcast. Or possibly, it could have built the machine to copy only if there were a special ?copy me? signal on the line. It was clear that there were many television shows that did not grant anyone permission to copy. Indeed, if anyone had asked, no doubt the majority of shows would not have authorized copying. And in the face of this obvious preference, Sony could have designed its system to minimize the opportunity for copyright infringement. It did not, and for that, Disney and Universal wanted to hold it responsible for the architecture it chose.
445
MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs ?tapeworms.? He warned, ?When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of ?tapeworms,? eating away at the very heart and essence of the most precious asset the copyright owner has, his copy- right.?18 ?One does not have to be trained in sophisticated marketing and creative judgment,? he told Congress, ?to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense.?19 Indeed, as surveys would later show, 45 percent of VCR owners had movie libraries of ten videos or more20?a use the Court would later hold was not ?fair.? By ?allowing VCR owners to copy freely by the means of an exemption from copyright infringement without creating a mechanism to compensate copyright owners,? Valenti testified, Congress would ?take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby profit from its re- production.?21
446
It took eight years for this case to be resolved by the Supreme Court. In the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in its jurisdiction?leading Judge Alex Kozinski, who sits on that court, refers to it as the ?Hollywood Circuit??held that Sony would be liable for the copyright infringement made possible by its machines. Under the Ninth Circuit's rule, this totally familiar technology?which Jack Valenti had called ?the Boston Strangler of the American film industry? (worse yet, it was a Japanese Boston Strangler of the American film industry)?was an illegal technology.22
447
But the Supreme Court reversed the decision of the Ninth Circuit.
448
And in its reversal, the Court clearly articulated its understanding of when and whether courts should intervene in such disputes. As the Court wrote,
449
Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.23
450
Congress was asked to respond to the Supreme Court's decision.
451
But as with the plea of recording artists about radio broadcasts, Congress ignored the request. Congress was convinced that American film got enough, this ?taking? notwithstanding.
452
If we put these cases together, a pattern is clear:
453
CASE WHOSE VALUE RESPONSE OF RESPONSE OF CONGRESS WAS ?PIRATED? THE COURTS Recordings Composers No protection Statutory license Radio Recording artists N/A Nothing Cable TV Broadcasters No protection Statutory license VCR Film creators No protection Nothing
454
In each case throughout our history, a new technology changed the way content was distributed.24 In each case, throughout our history, that change meant that someone got a ?free ride? on someone else?s work.
455
In none of these cases did either the courts or Congress eliminate all free riding. In none of these cases did the courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright created. In every case, the copyright owners complained of ?piracy.? In every case, Congress acted to recognize some of the legitimacy in the behavior of the ?pirates.? In each case, Congress allowed some new technology to benefit from content made before. It balanced the interests at stake.
456
When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes sense. Was Walt Disney a pirate? Would doujinshi be better if creators had to ask permission? Should tools that enable others to capture and spread images as a way to cultivate or criticize our culture be better regulated? Is it really right that building a search engine should expose you to $15 million in damages? Would it have been better if Edison had controlled film? Should every cover band have to hire a lawyer to get permission to record a song?
457
We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the Supreme Court has stated, copyright ?has never accorded the copyright owner complete control over all possible uses of his work.?25 Instead, the particular uses that the law regulates have been defined by balancing the good that comes from granting an exclusive right against the burdens such an exclusive right creates. And this balancing has historically been done after a technology has matured, or settled into the mix of technologies that facilitate the distribution of content.
458
We should be doing the same thing today. The technology of the Internet is changing quickly. The way people connect to the Internet (wires vs. wireless) is changing very quickly. No doubt the network should not become a tool for ?stealing? from artists. But neither should the law become a tool to entrench one particular way in which artists (or more accurately, distributors) get paid. As I describe in some detail in the last chapter of this book, we should be securing income to artists while we allow the market to secure the most efficient way to promote and distribute content. This will require changes in the law, at least in the interim. These changes should be designed to balance the protection of the law against the strong public interest that innovation continue.
459
This is especially true when a new technology enables a vastly superior mode of distribution. And this p2p has done. P2p technologies can be ideally efficient in moving content across a widely diverse network.
460
Left to develop, they could make the network vastly more efficient.
461
Yet these ?potential public benefits,? as John Schwartz writes in The New York Times, ?could be delayed in the P2P fight.?26 Yet when anyone begins to talk about ?balance,? the copyright warriors raise a different argument. ?All this hand waving about balance and incentives,? they say, ?misses a fundamental point. Our content,? the warriors insist, ?is our property. Why should we wait for Congress to ?rebalance? our property rights? Do you have to wait before calling the police when your car has been stolen? And why should Congress deliberate at all about the merits of this theft? Do we ask whether the car thief had a good use for the car before we arrest him??
462
?It is our property,? the warriors insist. ?And it should be protected just as any other property is protected.?

property

463
The copyright warriors are right: A copyright is a kind of property. It can be owned and sold, and the law protects against its theft. Ordinarily, the copyright owner gets to hold out for any price he wants. Markets reckon the supply and demand that partially determine the price she can get.
464
But in ordinary language, to call a copyright a ?property? right is a bit misleading, for the property of copyright is an odd kind of property.
465
Indeed, the very idea of property in any idea or any expression is very odd. I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don't have it. But what am I taking when I take the good idea you had to put a picnic table in the backyard?by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing I am taking then?
466
The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The point instead is that in the ordinary case?indeed, in practically every case except for a narrow range of exceptions?ideas released to the world are free. I don?t take anything from you when I copy the way you dress?though I might seem weird if I did it every day, and especially weird if you are a woman. Instead, as Thomas Jefferson said (and as is especially true when I copy the way someone else dresses), ?He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.?1
467
The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that I won't discuss here. Here the law says you can't take my idea or expression without my permission: The law turns the intangible into property.
468
But how, and to what extent, and in what form?the details, in other words?matter. To get a good sense of how this practice of turning the intangible into property emerged, we need to place this ?property? in its proper context.2
469
My strategy in doing this will be the same as my strategy in the preceding part. I offer four stories to help put the idea of ?copyright material is property? in context. Where did the idea come from? What are its limits? How does it function in practice? After these stories, the significance of this true statement??copyright material is property?? will be a bit more clear, and its implications will be revealed as quite different from the implications that the copyright warriors would have us draw.

Chapter Six: Founders

470
William Shakespeare wrote Romeo and Juliet in 1595. The play was first published in 1597. It was the eleventh major play that Shakespeare had written. He would continue to write plays through 1613, and the plays that he wrote have continued to define Anglo-American culture ever since. So deeply have the works of a sixteenth-century writer seeped into our culture that we often don't even recognize their source.
471
I once overheard someone commenting on Kenneth Branagh's adaptation of Henry V: ?I liked it, but Shakespeare is so full of clich?s.?
472
In 1774, almost 180 years after Romeo and Juliet was written, the ?copy-right? for the work was still thought by many to be the exclusive right of a single London publisher, Jacob Tonson.1 Tonson was the most prominent of a small group of publishers called the Conger 2 who controlled bookselling in England during the eighteenth century. The Conger claimed a perpetual right to control the ?copy? of books that they had acquired from authors. That perpetual right meant that no one else could publish copies of a book to which they held the copy right. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated.
473
Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the history of copyright is 1710, the year that the British Parliament adopted the first ?copyright? act. Known as the Statute of Anne, the act stated that all published works would get a copyright term of fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one additional years.3
474
Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? The reason is that the English hadn't yet agreed on what a ?copyright? was?indeed, no one had. At the time the English passed the Statute of Anne, there was no other legislation governing copyrights.
475
The last law regulating publishers, the Licensing Act of 1662, had expired in 1695. That law gave publishers a monopoly over publishing, as a way to make it easier for the Crown to control what was published.
476
But after it expired, there was no positive law that said that the publishers, or ?Stationers,? had an exclusive right to print books.
477
There was no positive law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to both the words of legislatures and the words of judges to know the rules that are to govern how people are to behave. We call the words from legislatures ?positive law.? We call the words from judges ?common law.? The common law sets the background against which legislatures legislate; the legislature, ordinarily, can trump that background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law.
478
This question was important to the publishers, or ?booksellers,? as they were called, because there was growing competition from foreign publishers. The Scottish, in particular, were increasingly publishing and exporting books to England. That competition reduced the profits of the Conger, which reacted by demanding that Parliament pass a law to again give them exclusive control over publishing. That demand ultimately resulted in the Statute of Anne.
479
The Statute of Anne granted the author or ?proprietor? of a book an exclusive right to print that book. In an important limitation, however, and to the horror of the booksellers, the law gave the bookseller that right for a limited term. At the end of that term, the copyright ?expired,? and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed.
480
Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right at all?
481
For the booksellers, and the authors whom they represented, had a very strong claim. Take Romeo and Juliet as an example: That play was written by Shakespeare. It was his genius that brought it into the world. He didn't take anybody's property when he created this play (that's a controversial claim, but never mind), and by his creating this play, he didn't make it any harder for others to craft a play. So why is it that the law would ever allow someone else to come along and take Shakespeare's play without his, or his estate?s, permission? What reason is there to allow someone else to ?steal? Shakespeare's work?
482
The answer comes in two parts. We first need to see something special about the notion of ?copyright? that existed at the time of the Statute of Anne. Second, we have to see something important about ?booksellers.?
483
First, about copyright. In the last three hundred years, we have come to apply the concept of ?copyright? ever more broadly. But in 1710, it wasn't so much a concept as it was a very particular right. The copyright was born as a very specific set of restrictions: It forbade others from reprinting a book. In 1710, the ?copy-right? was a right to use a particular machine to replicate a particular work. It did not go beyond that very narrow right. It did not control any more generally how a work could be used. Today the right includes a large collection of restrictions on the freedom of others: It grants the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on.
484
So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the term was that no one could reprint Shakespeare's work without the permission of the Shakespeare estate. It would not have controlled anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be allowed to make his films. The ?copy-right? was only an exclusive right to print?no less, of course, but also no more.
485
Even that limited right was viewed with skepticism by the British.
486
They had had a long and ugly experience with ?exclusive rights,? especially ?exclusive rights? granted by the Crown. The English had fought a civil war in part about the Crown's practice of handing out monopo- lies?especially monopolies for works that already existed. King Henry VIII granted a patent to print the Bible and a monopoly to Darcy to print playing cards. The English Parliament began to fight back against this power of the Crown. In 1656, it passed the Statute of Monopolies, limiting monopolies to patents for new inventions. And by 1710, Parliament was eager to deal with the growing monopoly in publishing.
487
Thus the ?copy-right,? when viewed as a monopoly right, was naturally viewed as a right that should be limited. (However convincing the claim that ?it's my property, and I should have it forever,? try sounding convincing when uttering, ?It's my monopoly, and I should have it forever.?) The state would protect the exclusive right, but only so long as it benefited society. The British saw the harms from specialinterest favors; they passed a law to stop them.
488
Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers.
489
Booksellers sound quaint and harmless to us. They were not viewed as harmless in seventeenth-century England. Members of the Conger were increasingly seen as monopolists of the worst kind?tools of the Crown's repression, selling the liberty of England to guarantee themselves a monopoly profit. The attacks against these monopolists were harsh: Milton described them as ?old patentees and monopolizers in the trade of book-selling?; they were ?men who do not therefore labour in an honest profession to which learning is indetted.?4
490
Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment was teaching the importance of education and knowledge spread generally. The idea that knowledge should be free was a hallmark of the time, and these powerful commercial interests were interfering with that idea.
491
To balance this power, Parliament decided to increase competition among booksellers, and the simplest way to do that was to spread the wealth of valuable books. Parliament therefore limited the term of copyrights, and thereby guaranteed that valuable books would become open to any publisher to publish after a limited time. Thus the setting of the term for existing works to just twenty-one years was a compromise to fight the power of the booksellers. The limitation on terms was an indirect way to assure competition among publishers, and thus the construction and spread of culture.
492
When 1731 (1710 + 21) came along, however, the booksellers were getting anxious. They saw the consequences of more competition, and like every competitor, they didn't like them. At first booksellers simply ignored the Statute of Anne, continuing to insist on the perpetual right to control publication. But in 1735 and 1737, they tried to persuade Parliament to extend their terms. Twenty-one years was not enough, they said; they needed more time.
493
Parliament rejected their requests. As one pamphleteer put it, in words that echo today,
494
I see no Reason for granting a further Term now, which will not hold as well for granting it again and again, as often as the Old ones Expire; so that should this Bill pass, it will in Effect be establishing a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to Trade, a Discouragement to Learning, no Benefit to the Authors, but a general Tax on the Publick; and all this only to increase the private Gain of the Booksellers.5
495
Having failed in Parliament, the publishers turned to the courts in a series of cases. Their argument was simple and direct: The Statute of Anne gave authors certain protections through positive law, but those protections were not intended as replacements for the common law.
496
Instead, they were intended simply to supplement the common law.
497
Under common law, it was already wrong to take another person's creative ?property? and use it without his permission. The Statute of Anne, the booksellers argued, didn't change that. Therefore, just because the protections of the Statute of Anne expired, that didn't mean the protections of the common law expired: Under the common law they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors.
498
This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary chutzpah.
499
Until then, as law professor Raymond Patterson has put it, ?The publishers ... had as much concern for authors as a cattle rancher has for cattle.?6 The bookseller didn't care squat for the rights of the author.
500
His concern was the monopoly profit that the author's work gave.
501
The booksellers' argument was not accepted without a fight.
502
The hero of this fight was a Scottish bookseller named Alexander Donaldson.7
503
Donaldson was an outsider to the London Conger. He began his career in Edinburgh in 1750. The focus of his business was inexpensive reprints ?of standard works whose copyright term had expired,? at least under the Statute of Anne.8 Donaldson's publishing house prospered and became ?something of a center for literary Scotsmen.? ?[A]mong them,? Professor Mark Rose writes, was ?the young James Boswell who, together with his friend Andrew Erskine, published an anthology of contemporary Scottish poems with Donaldson.?9
504
When the London booksellers tried to shut down Donaldson?s shop in Scotland, he responded by moving his shop to London, where he sold inexpensive editions ?of the most popular English books, in defiance of the supposed common law right of Literary Property.?10 His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection.
505
The London booksellers quickly brought suit to block ?piracy? like Donaldson?s. A number of actions were successful against the ?pirates,? the most important early victory being Millar v. Taylor.
506
Millar was a bookseller who in 1729 had purchased the rights to James Thomson's poem ?The Seasons.? Millar complied with the requirements of the Statute of Anne, and therefore received the full protection of the statute. After the term of copyright ended, Robert Taylor began printing a competing volume. Millar sued, claiming a perpetual common law right, the Statute of Anne notwithstanding.11
507
Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever protection the Statute of Anne gave booksellers, it did not, he held, extinguish any common law right. The question was whether the common law would protect the author against subsequent ?pirates.? Mansfield's answer was yes: The common law would bar Taylor from reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them.
508
Considered as a matter of abstract justice?reasoning as if justice were just a matter of logical deduction from first principles?Mansfield?s conclusion might make some sense. But what it ignored was the larger issue that Parliament had struggled with in 1710: How best to limit the monopoly power of publishers? Parliament's strategy was to offer a term for existing works that was long enough to buy peace in 1710, but short enough to assure that culture would pass into competition within a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited.
509
The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix.
510
Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included Thomas Beckett.12 Donaldson then released an unauthorized edition of Thomson's works. Beckett, on the strength of the decision in Millar, got an injunction against Donaldson. Donaldson appealed the case to the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before.
511
As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of attention throughout Britain. Donaldson's lawyers argued that whatever rights may have existed under the common law, the Statute of Anne terminated those rights. After passage of the Statute of Anne, the only legal protection for an exclusive right to control publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected.
512
The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the ?law lords,? members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted.
513
The reports about the law lords' votes are mixed. On some counts, it looks as if perpetual copyright prevailed. But there is no ambiguity about how the House of Lords voted as whole. By a two-to-one majority (22 to 11) they voted to reject the idea of perpetual copyrights.
514
Whatever one's understanding of the common law, now a copyright was fixed for a limited time, after which the work protected by copyright passed into the public domain.
515
?The public domain.? Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual.
516
After 1774, the public domain was born. For the first time in Anglo- American history, the legal control over creative works expired, and the greatest works in English history?including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan?were free of legal restraint.
517
It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, where most of the ?pirate publishers? did their work, people celebrated the decision in the streets. As the Edinburgh Advertiser reported, ?No private cause has so much engrossed the attention of the public, and none has been tried before the House of Lords in the decision of which so many individuals were interested.? ?Great rejoicing in Edinburgh upon victory over literary property: bonfires and illuminations.?13
518
In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The Morning Chronicle reported:
519
By the above decision ... near 200,000 pounds worth of what was honestly purchased at public sale, and which was yesterday thought property is now reduced to nothing. The Booksellers of London and Westminster, many of whom sold estates and houses to purchase Copy-right, are in a manner ruined, and those who after many years industry thought they had acquired a competency to provide for their families now find themselves without a shilling to devise to their successors. 14
520
?Ruined? is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords meant that the booksellers could no longer control how culture in England would grow and develop. Culture in England was thereafter free.
521
Not in the sense that copyrights would not be respected, for of course, for a limited time after a work was published, the bookseller had an exclusive right to control the publication of that book. And not in the sense that books could be stolen, for even after a copyright expired, you still had to buy the book from someone. But free in the sense that the culture and its growth would no longer be controlled by a small group of publishers. As every free market does, this free market of free culture would grow as the consumers and producers chose. English culture would develop as the many English readers chose to let it develop? chose in the books they bought and wrote; chose in the memes they repeated and endorsed. Chose in a competitive context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many.
522
At least, this was the rule in a world where the Parliament is antimonopoly, resistant to the protectionist pleas of publishers. In a world where the Parliament is more pliant, free culture would be less protected.

Chapter Seven: Recorders

523
Jon Else is a filmmaker. He is best known for his documentaries and has been very successful in spreading his art. He is also a teacher, and as a teacher myself, I envy the loyalty and admiration that his students feel for him. (I met, by accident, two of his students at a dinner party.
524
He was their god.)
525
Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today.
526
In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. Stagehands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage.
527
During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set.
528
Playing on the television set, while the stagehands played checkers and the opera company played Wagner, was The Simpsons. As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene.
529
Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons.
530
For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless ?fair use? or some other privilege applies.
531
Else called Simpsons creator Matt Groening's office to get permission.
532
Groening approved the shot. The shot was a four-and-a-half-second image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program.
533
Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company.
534
Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox.
535
Then, as Else told me, ?two things happened. First we discovered . . . that Matt Groening doesn't own his own creation?or at least that someone [at Fox] believes he doesn't own his own creation.? And second, Fox ?wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of ... entirely unsolicited Simpsons which was in the corner of the shot.?
536
Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera.
537
He explained to her, ?There must be some mistake here We?re asking for your educational rate on this.? That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told.
538
?I wanted to make sure I had my facts straight,? he told me. ?Yes, you have your facts straight,? she said. It would cost $10,000 to use the clip of The Simpsons in the corner of a shot in a documentary film about Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, ?And if you quote me, I?ll turn you over to our attorneys.? As an assistant to Herrera told Else later on, ?They don't give a shit. They just want the money.?
539
Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera. To reproduce this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before.
540
There's no doubt that someone, whether Matt Groening or Fox, owns the copyright to The Simpsons. That copyright is their property.
541
To use that copyrighted material thus sometimes requires the permission of the copyright owner. If the use that Else wanted to make of the Simpsons copyright were one of the uses restricted by the law, then he would need to get the permission of the copyright owner before he could use the work in that way. And in a free market, it is the owner of the copyright who gets to set the price for any use that the law says the owner gets to control.
542
For example, ?public performance? is a use of The Simpsons that the copyright owner gets to control. If you take a selection of favorite episodes, rent a movie theater, and charge for tickets to come see ?My Favorite Simpsons,? then you need to get permission from the copyright owner. And the copyright owner (rightly, in my view) can charge whatever she wants?$10 or $1,000,000. That's her right, as set by the law.
543
But when lawyers hear this story about Jon Else and Fox, their first thought is ?fair use.?1 Else's use of just 4.5 seconds of an indirect shot of a Simpsons episode is clearly a fair use of The Simpsons?and fair use does not require the permission of anyone.
544
So I asked Else why he didn't just rely upon ?fair use.? Here's his reply:
545
The Simpsons fiasco was for me a great lesson in the gulf between what lawyers find irrelevant in some abstract sense, and what is crushingly relevant in practice to those of us actually trying to make and broadcast documentaries. I never had any doubt that it was ?clearly fair use? in an absolute legal sense. But I couldn't rely on the concept in any concrete way. Here's why:
546
1. Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed ?visual cue sheet? listing the source and licensing status of each shot in the film. They take a dim view of ?fair use,? and a claim of ?fair use? can grind the application process to a halt.
547
2. I probably never should have asked Matt Groening in the first place. But I knew (at least from folklore) that Fox had a history of tracking down and stopping unlicensed Simpsons usage, just as George Lucas had a very high profile litigating Star Wars usage. So I decided to play by the book, thinking that we would be granted free or cheap license to four seconds of Simpsons. As a documentary producer working to exhaustion on a shoestring, the last thing I wanted was to risk legal trouble, even nuisance legal trouble, and even to defend a principle.
548
3. I did, in fact, speak with one of your colleagues at Stanford Law School ... who confirmed that it was fair use. He also confirmed that Fox would ?depose and litigate you to within an inch of your life,? regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them.
549
4. The question of fair use usually comes up at the end of the project, when we are up against a release deadline and out of money.
550
In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture.
551
But in practice, fair use functions very differently. The fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight. The law has the right aim; practice has defeated the aim.
552
This practice shows just how far the law has come from its eighteenth-century roots. The law was born as a shield to protect publishers? profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not.

Chapter Eight: Transformers

553
In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative company founded by Microsoft cofounder Paul Allen to develop digital entertainment. Long before the Internet became popular, Starwave began investing in new technology for delivering entertainment in anticipation of the power of networks.
554
Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology?not to distribute film, but to do things with film that otherwise would be very difficult.
555
In 1993, he launched an initiative to develop a product to build retrospectives on the work of particular actors. The first actor chosen was Clint Eastwood. The idea was to showcase all of the work of Eastwood, with clips from his films and interviews with figures important to his career.
556
At that time, Eastwood had made more than fifty films, as an actor and as a director. Alben began with a series of interviews with Eastwood, asking him about his career. Because Starwave produced those interviews, it was free to include them on the CD.
557
That alone would not have made a very interesting product, so Starwave wanted to add content from the movies in Eastwood's career:
558
posters, scripts, and other material relating to the films Eastwood made. Most of his career was spent at Warner Brothers, and so it was relatively easy to get permission for that content.
559
Then Alben and his team decided to include actual film clips. ?Our goal was that we were going to have a clip from every one of East- wood's films,? Alben told me. It was here that the problem arose. ?No one had ever really done this before,? Alben explained. ?No one had ever tried to do this in the context of an artistic look at an actor?s career.?
560
Alben brought the idea to Michael Slade, the CEO of Starwave.
561
Slade asked, ?Well, what will it take??
562
Alben replied, ?Well, we?re going to have to clear rights from everyone who appears in these films, and the music and everything else that we want to use in these film clips.? Slade said, ?Great! Go for it.?1
563
The problem was that neither Alben nor Slade had any idea what clearing those rights would mean. Every actor in each of the films could have a claim to royalties for the reuse of that film. But CD- ROMs had not been specified in the contracts for the actors, so there was no clear way to know just what Starwave was to do.
564
I asked Alben how he dealt with the problem. With an obvious pride in his resourcefulness that obscured the obvious bizarreness of his tale, Alben recounted just what they did:
565
So we very mechanically went about looking up the film clips.
566
We made some artistic decisions about what film clips to in- clude?of course we were going to use the ?Make my day? clip from Dirty Harry. But you then need to get the guy on the ground who's wiggling under the gun and you need to get his permission.
567
And then you have to decide what you are going to pay him.
568
We decided that it would be fair if we offered them the dayplayer rate for the right to reuse that performance. We?re talking about a clip of less than a minute, but to reuse that performance in the CD-ROM the rate at the time was about $600.
569
So we had to identify the people?some of them were hard to identify because in Eastwood movies you can't tell who's the guy crashing through the glass?is it the actor or is it the stuntman? And then we just, we put together a team, my assistant and some others, and we just started calling people.
570
Some actors were glad to help?Donald Sutherland, for example, followed up himself to be sure that the rights had been cleared.
571
Others were dumbfounded at their good fortune. Alben would ask, ?Hey, can I pay you $600 or maybe if you were in two films, you know, $1,200?? And they would say, ?Are you for real? Hey, I?d love to get $1,200.? And some of course were a bit difficult (estranged ex-wives, in particular). But eventually, Alben and his team had cleared the rights to this retrospective CD-ROM on Clint Eastwood?s career.
572
It was one year later??and even then we weren't sure whether we were totally in the clear.?
573
Alben is proud of his work. The project was the first of its kind and the only time he knew of that a team had undertaken such a massive project for the purpose of releasing a retrospective.
574
Everyone thought it would be too hard. Everyone just threw up their hands and said, ?Oh, my gosh, a film, it's so many copyrights, there's the music, there's the screenplay, there's the director, there's the actors.? But we just broke it down. We just put it into its constituent parts and said, ?Okay, there's this many actors, this many directors, ... this many musicians,? and we just went at it very systematically and cleared the rights.
575
And no doubt, the product itself was exceptionally good. Eastwood loved it, and it sold very well.
576
But I pressed Alben about how weird it seems that it would have to take a year's work simply to clear rights. No doubt Alben had done this efficiently, but as Peter Drucker has famously quipped, ?There is nothing so useless as doing efficiently that which should not be done at all.?2 Did it make sense, I asked Alben, that this is the way a new work has to be made?
577
For, as he acknowledged, ?very few ... have the time and resources, and the will to do this,? and thus, very few such works would ever be made. Does it make sense, I asked him, from the standpoint of what anybody really thought they were ever giving rights for originally, that you would have to go clear rights for these kinds of clips?
578
I don't think so. When an actor renders a performance in a movie, he or she gets paid very well. ...And then when 30 seconds of that performance is used in a new product that is a retrospective of somebody's career, I don't think that that person ... should be compensated for that.
579
Or at least, is this how the artist should be compensated? Would it make sense, I asked, for there to be some kind of statutory license that someone could pay and be free to make derivative use of clips like this?
580
Did it really make sense that a follow-on creator would have to track down every artist, actor, director, musician, and get explicit permission from each? Wouldn't a lot more be created if the legal part of the creative process could be made to be more clean?
581
Absolutely. I think that if there were some fair-licensing mecha- nism?where you weren't subject to hold-ups and you weren?t subject to estranged former spouses?you?d see a lot more of this work, because it wouldn't be so daunting to try to put together a retrospective of someone's career and meaningfully illustrate it with lots of media from that person's career. You?d build in a cost as the producer of one of these things. You?d build in a cost of paying X dollars to the talent that performed. But it would be a known cost. That's the thing that trips everybody up and makes this kind of product hard to get off the ground. If you knew I have a hundred minutes of film in this product and it's going to cost me X, then you build your budget around it, and you can get investments and everything else that you need to produce it. But if you say, ?Oh, I want a hundred minutes of something and I have no idea what it's going to cost me, and a certain number of people are going to hold me up for money,? then it becomes difficult to put one of these things together.
582
Alben worked for a big company. His company was backed by some of the richest investors in the world. He therefore had authority and access that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high?
583
These costs are the burdens of a kind of regulation. Put on a Republican hat for a moment, and get angry for a bit. The government defines the scope of these rights, and the scope defined determines how much it's going to cost to negotiate them. (Remember the idea that land runs to the heavens, and imagine the pilot purchasing flythrough rights as he negotiates to fly from Los Angeles to San Francisco.) These rights might well have once made sense; but as circumstances change, they make no sense at all. Or at least, a well-trained, regulation minimizing Republican should look at the rights and ask, ?Does this still make sense??
584
I?ve seen the flash of recognition when people get this point, but only a few times. The first was at a conference of federal judges in California.
585
The judges were gathered to discuss the emerging topic of cyber-law. I was asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an L.A. firm, introduced the panel with a video that he and a friend, Robert Fairbank, had produced.
586
The video was a brilliant collage of film from every period in the twentieth century, all framed around the idea of a 60 Minutes episode.
587
The execution was perfect, down to the sixty-minute stopwatch. The judges loved every minute of it.
588
When the lights came up, I looked over to my copanelist, David Nimmer, perhaps the leading copyright scholar and practitioner in the nation. He had an astonished look on his face, as he peered across the room of over 250 well-entertained judges. Taking an ominous tone, he began his talk with a question: ?Do you know how many federal laws were just violated in this room??
589
For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the rights to these clips; technically, what they had done violated the law.
590
Of course, it wasn't as if they or anyone were going to be prosecuted for this violation (the presence of 250 judges and a gaggle of federal marshals notwithstanding). But Nimmer was making an important point:
591
A year before anyone would have heard of the word Napster, and two years before another member of our panel, David Boies, would defend Napster before the Ninth Circuit Court of Appeals, Nimmer was trying to get the judges to see that the law would not be friendly to the capacities that this technology would enable. Technology means you can now do amazing things easily; but you couldn't easily do them legally.
592
We live in a ?cut and paste? culture enabled by technology. Anyone building a presentation knows the extraordinary freedom that the cut and paste architecture of the Internet created?in a second you can find just about any image you want; in another second, you can have it planted in your presentation.
593
But presentations are just a tiny beginning. Using the Internet and its archives, musicians are able to string together mixes of sound never before imagined; filmmakers are able to build movies out of clips on computers around the world. An extraordinary site in Sweden takes images of politicians and blends them with music to create biting political commentary. A site called Camp Chaos has produced some of the most biting criticism of the record industry that there is through the mixing of Flash! and music.
594
All of these creations are technically illegal. Even if the creators wanted to be ?legal,? the cost of complying with the law is impossibly high. Therefore, for the law-abiding sorts, a wealth of creativity is never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released.
595
To some, these stories suggest a solution: Let's alter the mix of rights so that people are free to build upon our culture. Free to add or mix as they see fit. We could even make this change without necessarily requiring that the ?free? use be free as in ?free beer.? Instead, the system could simply make it easy for follow-on creators to compensate artists without requiring an army of lawyers to come along: a rule, for example, that says ?the royalty owed the copyright owner of an unregistered work for the derivative reuse of his work will be a flat 1 percent of net revenues, to be held in escrow for the copyright owner.? Under this rule, the copyright owner could benefit from some royalty, but he would not have the benefit of a full property right (meaning the right to name his own price) unless he registers the work.
596
Who could possibly object to this? And what reason would there be for objecting? We?re talking about work that is not now being made; which if made, under this plan, would produce new income for artists.
597
What reason would anyone have to oppose it?
598
In February 2003, DreamWorks studios announced an agreement with Mike Myers, the comic genius of Saturday Night Live and Austin Powers. According to the announcement, Myers and DreamWorks would work together to form a ?unique filmmaking pact.? Under the agreement, DreamWorks ?will acquire the rights to existing motion picture hits and classics, write new storylines and?with the use of state- of-the-art digital technology?insert Myers and other actors into the film, thereby creating an entirely new piece of entertainment.?
599
The announcement called this ?film sampling.? As Myers explained, ?Film Sampling is an exciting way to put an original spin on existing films and allow audiences to see old movies in a new light. Rap artists have been doing this for years with music and now we are able to take that same concept and apply it to film.? Steven Spielberg is quoted as saying, ?If anyone can create a way to bring old films to new audiences, it is Mike.?
600
Spielberg is right. Film sampling by Myers will be brilliant. But if you don't think about it, you might miss the truly astonishing point about this announcement. As the vast majority of our film heritage remains under copyright, the real meaning of the DreamWorks announcement is just this: It is Mike Myers and only Mike Myers who is free to sample. Any general freedom to build upon the film archive of our culture, a freedom in other contexts presumed for us all, is now a privilege reserved for the funny and famous?and presumably rich.
601
This privilege becomes reserved for two sorts of reasons. The first continues the story of the last chapter: the vagueness of ?fair use.?
602
Much of ?sampling? should be considered ?fair use.? But few would rely upon so weak a doctrine to create. That leads to the second reason that the privilege is reserved for the few: The costs of negotiating the legal rights for the creative reuse of content are astronomically high.
603
These costs mirror the costs with fair use: You either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don't have to rely upon fair use rights. Either way, the creative process is a process of paying lawyers?again a privilege, or perhaps a curse, reserved for the few.

Chapter Nine: Collectors

604
In April 1996, millions of ?bots??computer codes designed to ?spider,? or automatically search the Internet and copy content?began running across the Net. Page by page, these bots copied Internet-based information onto a small set of computers located in a basement in San Francisco's Presidio. Once the bots finished the whole of the Internet, they started again. Over and over again, once every two months, these bits of code took copies of the Internet and stored them.
605
By October 2001, the bots had collected more than five years of copies. And at a small announcement in Berkeley, California, the archive that these copies created, the Internet Archive, was opened to the world. Using a technology called ?the Way Back Machine,? you could enter a Web page, and see all of its copies going back to 1996, as well as when those pages changed.
606
This is the thing about the Internet that Orwell would have appreciated.
607
In the dystopia described in 1984, old newspapers were constantly updated to assure that the current view of the world, approved of by the government, was not contradicted by previous news reports.
608
Thousands of workers constantly reedited the past, meaning there was no way ever to know whether the story you were reading today was the story that was printed on the date published on the paper.
609
It's the same with the Internet. If you go to a Web page today, there's no way for you to know whether the content you are reading is the same as the content you read before. The page may seem the same, but the content could easily be different. The Internet is Orwell's li- brary?constantly updated, without any reliable memory.
610
Until the Way Back Machine, at least. With the Way Back Machine, and the Internet Archive underlying it, you can see what the Internet was. You have the power to see what you remember. More importantly, perhaps, you also have the power to find what you don?t remember and what others might prefer you forget.1
611
We take it for granted that we can go back to see what we remember reading. Think about newspapers. If you wanted to study the reaction of your hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's water cannon in 1963, you could go to your public library and look at the newspapers. Those papers probably exist on microfiche. If you?re lucky, they exist in paper, too. Either way, you are free, using a library, to go back and remember?not just what it is convenient to remember, but remember something close to the truth.
612
It is said that those who fail to remember history are doomed to repeat it. That's not quite correct. We all forget history. The key is whether we have a way to go back to rediscover what we forget. More directly, the key is whether an objective past can keep us honest. Libraries help do that, by collecting content and keeping it, for schoolchildren, for researchers, for grandma. A free society presumes this knowedge.
613
The Internet was an exception to this presumption. Until the Internet Archive, there was no way to go back. The Internet was the quintessentially transitory medium. And yet, as it becomes more important in forming and reforming society, it becomes more and more important to maintain in some historical form. It's just bizarre to think that we have scads of archives of newspapers from tiny towns around the world, yet there is but one copy of the Internet?the one kept by the Internet Archive.
614
Brewster Kahle is the founder of the Internet Archive. He was a very successful Internet entrepreneur after he was a successful computer researcher.
615
In the 1990s, Kahle decided he had had enough business success.
616
It was time to become a different kind of success. So he launched a series of projects designed to archive human knowledge. The Internet Archive was just the first of the projects of this Andrew Carnegie of the Internet. By December of 2002, the archive had over 10 billion pages, and it was growing at about a billion pages a month.
617
The Way Back Machine is the largest archive of human knowledge in human history. At the end of 2002, it held ?two hundred and thirty terabytes of material??and was ?ten times larger than the Library of Congress.? And this was just the first of the archives that Kahle set out to build. In addition to the Internet Archive, Kahle has been constructing the Television Archive. Television, it turns out, is even more ephemeral than the Internet. While much of twentieth-century culture was constructed through television, only a tiny proportion of that culture is available for anyone to see today. Three hours of news are recorded each evening by Vanderbilt University?thanks to a specific exemption in the copyright law. That content is indexed, and is available to scholars for a very low fee. ?But other than that, [television] is almost unavailable,? Kahle told me. ?If you were Barbara Walters you could get access to [the archives], but if you are just a graduate student?? As Kahle put it,
618
Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician interacting with a fictional television character? If you were a graduate student wanting to study that, and you wanted to get those original back and forth exchanges between the two, the 60 Minutes episode that came out after it ... it would be almost impossible. ... Those materials are almost unfindable
619
Why is that? Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is recorded on videotape is not? How is it that we?ve created a world where researchers trying to understand the effect of media on nineteenthcentury America will have an easier time than researchers trying to understand the effect of media on twentieth-century America?
620
In part, this is because of the law. Early in American copyright law, copyright owners were required to deposit copies of their work in libraries.
621
These copies were intended both to facilitate the spread of knowledge and to assure that a copy of the work would be around once the copyright expired, so that others might access and copy the work.
622
These rules applied to film as well. But in 1915, the Library of Congress made an exception for film. Film could be copyrighted so long as such deposits were made. But the filmmaker was then allowed to borrow back the deposits?for an unlimited time at no cost. In 1915 alone, there were more than 5,475 films deposited and ?borrowed back.? Thus, when the copyrights to films expire, there is no copy held by any library. The copy exists?if it exists at all?in the library archive of the film company.2
623
The same is generally true about television. Television broadcasts were originally not copyrighted?there was no way to capture the broadcasts, so there was no fear of ?theft.? But as technology enabled capturing, broadcasters relied increasingly upon the law. The law required they make a copy of each broadcast for the work to be ?copyrighted.? But those copies were simply kept by the broadcasters. No library had any right to them; the government didn't demand them.
624
The content of this part of American culture is practically invisible to anyone who would look.
625
Kahle was eager to correct this. Before September 11, 2001, he and his allies had started capturing television. They selected twenty stations from around the world and hit the Record button. After September 11, Kahle, working with dozens of others, selected twenty stations from around the world and, beginning October 11, 2001, made their coverage during the week of September 11 available free on-line. Anyone could see how news reports from around the world covered the events of that day.
626
Kahle had the same idea with film. Working with Rick Prelinger, whose archive of film includes close to 45,000 ?ephemeral films? (meaning films other than Hollywood movies, films that were never copyrighted), Kahle established the Movie Archive. Prelinger let Kahle digitize 1,300 films in this archive and post those films on the Internet to be downloaded for free. Prelinger's is a for-profit company. It sells copies of these films as stock footage. What he has discovered is that after he made a significant chunk available for free, his stock footage sales went up dramatically. People could easily find the material they wanted to use. Some downloaded that material and made films on their own. Others purchased copies to enable other films to be made.
627
Either way, the archive enabled access to this important part of our culture.
628
Want to see a copy of the ?Duck and Cover? film that instructed children how to save themselves in the middle of nuclear attack? Go to archive.org, and you can download the film in a few minutes?for free.
629
Here again, Kahle is providing access to a part of our culture that we otherwise could not get easily, if at all. It is yet another part of what defines the twentieth century that we have lost to history. The law doesn't require these copies to be kept by anyone, or to be deposited in an archive by anyone. Therefore, there is no simple way to find them.
630
The key here is access, not price. Kahle wants to enable free access to this content, but he also wants to enable others to sell access to it. His aim is to ensure competition in access to this important part of our culture.
631
Not during the commercial life of a bit of creative property, but during a second life that all creative property has?a noncommercial life.
632
For here is an idea that we should more clearly recognize. Every bit of creative property goes through different ?lives.? In its first life, if the creator is lucky, the content is sold. In such cases the commercial market is successful for the creator. The vast majority of creative property doesn't enjoy such success, but some clearly does. For that content, commercial life is extremely important. Without this commercial market, there would be, many argue, much less creativity.
633
After the commercial life of creative property has ended, our tradition has always supported a second life as well. A newspaper delivers the news every day to the doorsteps of America. The very next day, it is used to wrap fish or to fill boxes with fragile gifts or to build an archive of knowledge about our history. In this second life, the content can continue to inform even if that information is no longer sold.
634
The same has always been true about books. A book goes out of print very quickly (the average today is after about a year 3). After it is out of print, it can be sold in used book stores without the copyright owner getting anything and stored in libraries, where many get to read the book, also for free. Used book stores and libraries are thus the second life of a book. That second life is extremely important to the spread and stability of culture.
635
Yet increasingly, any assumption about a stable second life for creative property does not hold true with the most important components of popular culture in the twentieth and twenty-first centuries. For these?television, movies, music, radio, the Internet?there is no guarantee of a second life. For these sorts of culture, it is as if we?ve replaced libraries with Barnes & Noble superstores. With this culture, what?s accessible is nothing but what a certain limited market demands. Beyond that, culture disappears.
636
For most of the twentieth century, it was economics that made this so. It would have been insanely expensive to collect and make accessible all television and film and music: The cost of analog copies is extraordinarily high. So even though the law in principle would have restricted the ability of a Brewster Kahle to copy culture generally, the real restriction was economics. The market made it impossibly difficult to do anything about this ephemeral culture; the law had little practical effect.
637
Perhaps the single most important feature of the digital revolution is that for the first time since the Library of Alexandria, it is feasible to imagine constructing archives that hold all culture produced or distributed publicly. Technology makes it possible to imagine an archive of all books published, and increasingly makes it possible to imagine an archive of all moving images and sound.
638
The scale of this potential archive is something we?ve never imagined before. The Brewster Kahles of our history have dreamed about it; but we are for the first time at a point where that dream is possible. As Kahle describes,
639
It looks like there's about two to three million recordings of music.
640
Ever. There are about a hundred thousand theatrical releases of movies, ... and about one to two million movies [distributed] during the twentieth century. There are about twenty-six million different titles of books. All of these would fit on computers that would fit in this room and be able to be afforded by a small company.
641
So we?re at a turning point in our history. Universal access is the goal. And the opportunity of leading a different life, based on this, is ... thrilling. It could be one of the things humankind would be most proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press.
642
Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of libraries or archives could be. When the commercial life of creative property ends, I don't know. But it does. And whenever it does, Kahle and his archive hint at a world where this knowledge, and culture, remains perpetually available. Some will draw upon it to understand it; some to criticize it. Some will use it, as Walt Disney did, to re-create the past for the future. These technologies promise something that had become unimaginable for much of our past?a future for our past. The technology of digital arts could make the dream of the Library of Alexandria real again.
643
Technologists have thus removed the economic costs of building such an archive. But lawyers' costs remain. For as much as we might like to call these ?archives,? as warm as the idea of a ?library? might seem, the ?content? that is collected in these digital spaces is also some- one's ?property.? And the law of property restricts the freedoms that Kahle and others would exercise.

Chapter Ten: Property

644
Jack Valenti has been the president of the Motion Picture Association of America since 1966. He first came to Washington, D.C., with Lyndon Johnson's administration?literally. The famous picture of Johnson's swearing-in on Air Force One after the assassination of President Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington.
645
The MPAA is the American branch of the international Motion Picture Association. It was formed in 1922 as a trade association whose goal was to defend American movies against increasing domestic criticism.
646
The organization now represents not only filmmakers but producers and distributors of entertainment for television, video, and cable. Its board is made up of the chairmen and presidents of the seven major producers and distributors of motion picture and television programs in the United States: Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, Universal Studios, and Warner Brothers.
647
Valenti is only the third president of the MPAA. No president before him has had as much influence over that organization, or over Washington. As a Texan, Valenti has mastered the single most important political skill of a Southerner?the ability to appear simple and slow while hiding a lightning-fast intellect. To this day, Valenti plays the simple, humble man. But this Harvard MBA, and author of four books, who finished high school at the age of fifteen and flew more than fifty combat missions in World War II, is no Mr. Smith. When Valenti went to Washington, he mastered the city in a quintessentially Washingtonian way.
648
In defending artistic liberty and the freedom of speech that our culture depends upon, the MPAA has done important good. In crafting the MPAA rating system, it has probably avoided a great deal of speech-regulating harm. But there is an aspect to the organization?s mission that is both the most radical and the most important. This is the organization's effort, epitomized in Valenti's every act, to redefine the meaning of ?creative property.?
649
In 1982, Valenti's testimony to Congress captured the strategy perfectly:
650
No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue.
651
That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest.1
652
The strategy of this rhetoric, like the strategy of most of Valenti?s rhetoric, is brilliant and simple and brilliant because simple. The ?central theme? to which ?reasonable men and women? will return is this:
653
?Creative property owners must be accorded the same rights and protections resident in all other property owners in the nation.? There are no second-class citizens, Valenti might have continued. There should be no second-class property owners.
654
This claim has an obvious and powerful intuitive pull. It is stated with such clarity as to make the idea as obvious as the notion that we use elections to pick presidents. But in fact, there is no more extreme a claim made by anyone who is serious in this debate than this claim of Valenti?s. Jack Valenti, however sweet and however brilliant, is perhaps the nation's foremost extremist when it comes to the nature and scope of ?creative property.? His views have no reasonable connection to our actual legal tradition, even if the subtle pull of his Texan charm has slowly redefined that tradition, at least in Washington.
655
While ?creative property? is certainly ?property? in a nerdy and precise sense that lawyers are trained to understand,2 it has never been the case, nor should it be, that ?creative property owners? have been ?accorded the same rights and protection resident in all other property owners.? Indeed, if creative property owners were given the same rights as all other property owners, that would effect a radical, and radically undesirable, change in our tradition.
656
Valenti knows this. But he speaks for an industry that cares squat for our tradition and the values it represents. He speaks for an industry that is instead fighting to restore the tradition that the British overturned in 1710. In the world that Valenti's changes would create, a powerful few would exercise powerful control over how our creative culture would develop.
657
I have two purposes in this chapter. The first is to convince you that, historically, Valenti's claim is absolutely wrong. The second is to convince you that it would be terribly wrong for us to reject our history.
658
We have always treated rights in creative property differently from the rights resident in all other property owners. They have never been the same. And they should never be the same, because, however counterintuitive this may seem, to make them the same would be to fundamentally weaken the opportunity for new creators to create. Creativity depends upon the owners of creativity having less than perfect control.
659
Organizations such as the MPAA, whose board includes the most powerful of the old guard, have little interest, their rhetoric notwithstanding, in assuring that the new can displace them. No organization does. No person does. (Ask me about tenure, for example.) But what?s good for the MPAA is not necessarily good for America. A society that defends the ideals of free culture must preserve precisely the opportunity for new creativity to threaten the old.
660
To get just a hint that there is something fundamentally wrong in Valenti's argument, we need look no further than the United States Constitution itself.
661
The framers of our Constitution loved ?property.? Indeed, so strongly did they love property that they built into the Constitution an important requirement. If the government takes your property?if it condemns your house, or acquires a slice of land from your farm?it is required, under the Fifth Amendment's ?Takings Clause,? to pay you ?just compensation? for that taking. The Constitution thus guarantees that property is, in a certain sense, sacred. It cannot ever be taken from the property owner unless the government pays for the privilege.
662
Yet the very same Constitution speaks very differently about what Valenti calls ?creative property.? In the clause granting Congress the power to create ?creative property,? the Constitution requires that after a ?limited time,? Congress take back the rights that it has granted and set the ?creative property? free to the public domain. Yet when Congress does this, when the expiration of a copyright term ?takes? your copyright and turns it over to the public domain, Congress does not have any obligation to pay ?just compensation? for this ?taking.? Instead, the same Constitution that requires compensation for your land requires that you lose your ?creative property? right without any compensation at all.
663
The Constitution thus on its face states that these two forms of property are not to be accorded the same rights. They are plainly to be treated differently. Valenti is therefore not just asking for a change in our tradition when he argues that creative-property owners should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself.
664
Arguing for a change in our Constitution is not necessarily wrong.
665
There was much in our original Constitution that was plainly wrong.
666
The Constitution of 1789 entrenched slavery; it left senators to be appointed rather than elected; it made it possible for the electoral college to produce a tie between the president and his own vice president (as it did in 1800). The framers were no doubt extraordinary, but I would be the first to admit that they made big mistakes. We have since rejected some of those mistakes; no doubt there could be others that we should reject as well. So my argument is not simply that because Jefferson did it, we should, too.
667
Instead, my argument is that because Jefferson did it, we should at least try to understand why. Why did the framers, fanatical property types that they were, reject the claim that creative property be given the same rights as all other property? Why did they require that for creative property there must be a public domain?
668
To answer this question, we need to get some perspective on the history of these ?creative property? rights, and the control that they enabled.
669
Once we see clearly how differently these rights have been defined, we will be in a better position to ask the question that should be at the core of this war: Not whether creative property should be protected, but how. Not whether we will enforce the rights the law gives to creative-property owners, but what the particular mix of rights ought to be. Not whether artists should be paid, but whether institutions designed to assure that artists get paid need also control how culture develops.
670
To answer these questions, we need a more general way to talk about how property is protected. More precisely, we need a more general way than the narrow language of the law allows. In Code and Other Laws of Cyberspace, I used a simple model to capture this more general perspective. For any particular right or regulation, this model asks how four different modalities of regulation interact to support or weaken the right or regulation. I represented it with this diagram:
671
At the center of this picture is a regulated dot: the individual or group that is the target of regulation, or the holder of a right. (In each case throughout, we can describe this either as regulation or as a right.
672
For simplicity's sake, I will speak only of regulations.) The ovals represent four ways in which the individual or group might be regulated? either constrained or, alternatively, enabled. Law is the most obvious constraint (to lawyers, at least). It constrains by threatening punishments after the fact if the rules set in advance are violated. So if, for example, you willfully infringe Madonna's copyright by copying a song from her latest CD and posting it on the Web, you can be punished with a $150,000 fine. The fine is an ex post punishment for violating an ex ante rule. It is imposed by the state.
673
Norms are a different kind of constraint. They, too, punish an individual for violating a rule. But the punishment of a norm is imposed by a community, not (or not only) by the state. There may be no law against spitting, but that doesn't mean you won't be punished if you spit on the ground while standing in line at a movie. The punishment might not be harsh, though depending upon the community, it could easily be more harsh than many of the punishments imposed by the state. The mark of the difference is not the severity of the rule, but the source of the enforcement.
674
The market is a third type of constraint. Its constraint is effected through conditions: You can do X if you pay Y; you?ll be paid M if you do N. These constraints are obviously not independent of law or norms?it is property law that defines what must be bought if it is to be taken legally; it is norms that say what is appropriately sold. But given a set of norms, and a background of property and contract law, the market imposes a simultaneous constraint upon how an individual or group might behave.
675
Finally, and for the moment, perhaps, most mysteriously, ?architecture? ?the physical world as one finds it?is a constraint on behavior.
676
A fallen bridge might constrain your ability to get across a river. Railroad tracks might constrain the ability of a community to integrate its social life. As with the market, architecture does not effect its constraint through ex post punishments. Instead, also as with the market, architecture effects its constraint through simultaneous conditions. These conditions are imposed not by courts enforcing contracts, or by police punishing theft, but by nature, by ?architecture.?
677
If a 500-pound boulder blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint.
678
So the first point about these four modalities of regulation is obvious:
679
They interact. Restrictions imposed by one might be reinforced by another. Or restrictions imposed by one might be undermined by another.
680
The second point follows directly: If we want to understand the effective freedom that anyone has at a given moment to do any particular thing, we have to consider how these four modalities interact.
681
Whether or not there are other constraints (there may well be; my claim is not about comprehensiveness), these four are among the most significant, and any regulator (whether controlling or freeing) must consider how these four in particular interact.
682
So, for example, consider the ?freedom? to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that say how fast you can drive in particular places at particular times. It is in part restricted by architecture: speed bumps, for example, slow most rational drivers; governors in buses, as another example, set the maximum rate at which the driver can drive. The freedom is in part restricted by the market: Fuel efficiency drops as speed increases, thus the price of gasoline indirectly constrains speed. And finally, the norms of a community may or may not constrain the freedom to speed. Drive at 50 mph by a school in your own neighborhood and you?re likely to be punished by the neighbors. The same norm wouldn't be as effective in a different town, or at night.
683
The final point about this simple model should also be fairly clear:
684
While these four modalities are analytically independent, law has a special role in affecting the three.3 The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality.
685
Thus, the law might be used to increase taxes on gasoline, so as to increase the incentives to drive more slowly. The law might be used to mandate more speed bumps, so as to increase the difficulty of driving rapidly. The law might be used to fund ads that stigmatize reckless driving. Or the law might be used to require that other laws be more strict?a federal requirement that states decrease the speed limit, for example?so as to decrease the attractiveness of fast driving.
686
These constraints can thus change, and they can be changed. To understand the effective protection of liberty or protection of property at any particular moment, we must track these changes over time. A restriction imposed by one modality might be erased by another. A freedom enabled by one modality might be displaced by another.4

Why Hollywood is Right

687
The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress and the courts to defend copyright. This model helps us see why that rallying makes sense.
688
Let's say this is the picture of copyright's regulation before the Internet:
689
There is balance between law, norms, market, and architecture. The law limits the ability to copy and share content, by imposing penalties on those who copy and share content. Those penalties are reinforced by technologies that make it hard to copy and share content (architecture) and expensive to copy and share content (market). Finally, those penalties are mitigated by norms we all recognize?kids, for example, taping other kids' records. These uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement.
690
Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The happy balance (for the warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet.
691
Thus the sense of, and justification for, the warriors' response. Technology has changed, the warriors say, and the effect of this change, when ramified through the market and norms, is that a balance of protection for the copyright owners' rights has been lost. This is Iraq after the fall of Saddam, but this time no government is justifying the looting that results.
692
Neither this analysis nor the conclusions that follow are new to the warriors. Indeed, in a ?White Paper? prepared by the Commerce Department (one heavily influenced by the copyright warriors) in 1995, this mix of regulatory modalities had already been identified and the strategy to respond already mapped. In response to the changes the Internet had effected, the White Paper argued (1) Congress should strengthen intellectual property law, (2) businesses should adopt innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright.
693
This mixed strategy is just what copyright needed?if it was to preserve the particular balance that existed before the change induced by the Internet. And it's just what we should expect the content industry to push for. It is as American as apple pie to consider the happy life you have as an entitlement, and to look to the law to protect it if something comes along to change that happy life. Homeowners living in a flood plain have no hesitation appealing to the government to rebuild (and rebuild again) when a flood (architecture) wipes away their property (law). Farmers have no hesitation appealing to the government to bail them out when a virus (architecture) devastates their crop. Unions have no hesitation appealing to the government to bail them out when imports (market) wipe out the U.S. steel industry.
694
Thus, there's nothing wrong or surprising in the content industry?s campaign to protect itself from the harmful consequences of a technological innovation. And I would be the last person to argue that the changing technology of the Internet has not had a profound effect on the content industry's way of doing business, or as John Seely Brown describes it, its ?architecture of revenue.?
695
But just because a particular interest asks for government support, it doesn't follow that support should be granted. And just because technology has weakened a particular way of doing business, it doesn't follow that the government should intervene to support that old way of doing business. Kodak, for example, has lost perhaps as much as 20 percent of their traditional film market to the emerging technologies of digital cameras.5 Does anyone believe the government should ban digital cameras just to support Kodak? Highways have weakened the freight business for railroads. Does anyone think we should ban trucks from roads for the purpose of protecting the railroads? Closer to the subject of this book, remote channel changers have weakened the ?stickiness? of television advertising (if a boring commercial comes on the TV, the remote makes it easy to surf ), and it may well be that this change has weakened the television advertising market. But does anyone believe we should regulate remotes to reinforce commercial television?
696
(Maybe by limiting them to function only once a second, or to switch to only ten channels within an hour?)
697
The obvious answer to these obviously rhetorical questions is no.
698
In a free society, with a free market, supported by free enterprise and free trade, the government's role is not to support one way of doing business against others. Its role is not to pick winners and protect them against loss. If the government did this generally, then we would never have any progress. As Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software patents, ?established companies have an interest in excluding future competitors.?6 And relative to a startup, established companies also have the means. (Think RCA and FM radio.) A world in which competitors with new ideas must fight not only the market but also the government is a world in which competitors with new ideas will not succeed. It is a world of stasis and increasingly concentrated stagnation. It is the Soviet Union under Brezhnev.
699
Thus, while it is understandable for industries threatened with new technologies that change the way they do business to look to the government for protection, it is the special duty of policy makers to guarantee that that protection not become a deterrent to progress. It is the duty of policy makers, in other words, to assure that the changes they create, in response to the request of those hurt by changing technology, are changes that preserve the incentives and opportunities for innovation and change.
700
In the context of laws regulating speech?which include, obviously, copyright law?that duty is even stronger. When the industry complaining about changing technologies is asking Congress to respond in a way that burdens speech and creativity, policy makers should be especially wary of the request. It is always a bad deal for the government to get into the business of regulating speech markets. The risks and dangers of that game are precisely why our framers created the First Amendment to our Constitution: ?Congress shall make no law . . .
701
abridging the freedom of speech.? So when Congress is being asked to pass laws that would ?abridge? the freedom of speech, it should ask? carefully?whether such regulation is justified.
702
My argument just now, however, has nothing to do with whether the changes that are being pushed by the copyright warriors are ?justi128 fied.? My argument is about their effect. For before we get to the question of justification, a hard question that depends a great deal upon your values, we should first ask whether we understand the effect of the changes the content industry wants.
703
Here's the metaphor that will capture the argument to follow.
704
In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul Hermann M?ller won the Nobel Prize for his work demonstrating the insecticidal properties of DDT. By the 1950s, the insecticide was widely used around the world to kill disease-carrying pests. It was also used to increase farm production.
705
No one doubts that killing disease-carrying pests or increasing crop production is a good thing. No one doubts that the work of M?ller was important and valuable and probably saved lives, possibly millions.
706
But in 1962, Rachel Carson published Silent Spring, which argued that DDT, whatever its primary benefits, was also having unintended environmental consequences. Birds were losing the ability to reproduce.
707
Whole chains of the ecology were being destroyed.
708
No one set out to destroy the environment. Paul M?ller certainly did not aim to harm any birds. But the effort to solve one set of problems produced another set which, in the view of some, was far worse than the problems that were originally attacked. Or more accurately, the problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve.
709
It is to this image precisely that Duke University law professor James Boyle appeals when he argues that we need an ?environmentalism? for culture.7 His point, and the point I want to develop in the balance of this chapter, is not that the aims of copyright are flawed. Or that authors should not be paid for their work. Or that music should be given away ?for free.? The point is that some of the ways in which we might protect authors will have unintended consequences for the cultural environment, much like DDT had for the natural environment. And just as criticism of DDT is not an endorsement of malaria or an attack on farmers, so, too, is criticism of one particular set of regulations protecting copyright not an endorsement of anarchy or an attack on authors.
710
It is an environment of creativity that we seek, and we should be aware of our actions' effects on the environment.
711
My argument, in the balance of this chapter, tries to map exactly this effect. No doubt the technology of the Internet has had a dramatic effect on the ability of copyright owners to protect their content. But there should also be little doubt that when you add together the changes in copyright law over time, plus the change in technology that the Internet is undergoing just now, the net effect of these changes will not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity.
712
In a line: To kill a gnat, we are spraying DDT with consequences for free culture that will be far more devastating than that this gnat will be lost.

Chapter Ten: Beginnings

713
America copied English copyright law. Actually, we copied and improved English copyright law. Our Constitution makes the purpose of ?creative property? rights clear; its express limitations reinforce the English aim to avoid overly powerful publishers.
714
The power to establish ?creative property? rights is granted to Congress in a way that, for our Constitution, at least, is very odd. Article I, section 8, clause 8 of our Constitution states that:
715
Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
716
We can call this the ?Progress Clause,? for notice what this clause does not say. It does not say Congress has the power to grant ?creative property rights.? It says that Congress has the power to promote progress. The grant of power is its purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors.
717
The Progress Clause expressly limits the term of copyrights. As we saw in chapter 6, the English limited the term of copyright so as to assure that a few would not exercise disproportionate control over culture by exercising disproportionate control over publishing. We can assume the framers followed the English for a similar purpose. Indeed, unlike the English, the framers reinforced that objective, by requiring that copyrights extend ?to Authors? only.
718
The design of the Progress Clause reflects something about the Constitution's design in general. To avoid a problem, the framers built structure. To prevent the concentrated power of publishers, they built a structure that kept copyrights away from publishers and kept them short. To prevent the concentrated power of a church, they banned the federal government from establishing a church. To prevent concentrating power in the federal government, they built structures to reinforce the power of the states?including the Senate, whose members were at the time selected by the states, and an electoral college, also selected by the states, to select the president. In each case, a structure built checks and balances into the constitutional frame, structured to prevent otherwise inevitable concentrations of power.
719
I doubt the framers would recognize the regulation we call ?copyright? today. The scope of that regulation is far beyond anything they ever considered. To begin to understand what they did, we need to put our ?copyright? in context: We need to see how it has changed in the 210 years since they first struck its design.
720
Some of these changes come from the law: some in light of changes in technology, and some in light of changes in technology given a particular concentration of market power. In terms of our model, we started here:
721
We will end here:
722
Let me explain how.

Law: Duration

723
When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that the English had confronted in 1774. Many states had passed laws protecting creative property, and some believed that these laws simply supplemented common law rights that already protected creative au- thorship.8 This meant that there was no guaranteed public domain in the United States in 1790. If copyrights were protected by the common law, then there was no simple way to know whether a work published in the United States was controlled or free. Just as in England, this lingering uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works.
724
That uncertainty ended after Congress passed legislation granting copyrights. Because federal law overrides any contrary state law, federal protections for copyrighted works displaced any state law protections.
725
Just as in England the Statute of Anne eventually meant that the copyrights for all English works expired, a federal statute meant that any state copyrights expired as well.
726
In 1790, Congress enacted the first copyright law. It created a federal copyright and secured that copyright for fourteen years. If the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain.
727
While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually registered under the federal copyright regime. Of all the work created in the United States both before 1790 and from 1790 through 1800, 95 percent immediately passed into the public domain; the balance would pass into the pubic domain within twenty-eight years at most, and more likely within fourteen years.9
728
This system of renewal was a crucial part of the American system of copyright. It assured that the maximum terms of copyright would be granted only for works where they were wanted. After the initial term of fourteen years, if it wasn't worth it to an author to renew his copyright, then it wasn't worth it to society to insist on the copyright, either.
729
Fourteen years may not seem long to us, but for the vast majority of copyright owners at that time, it was long enough: Only a small minority of them renewed their copyright after fourteen years; the balance allowed their work to pass into the public domain.10
730
Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall out of print after one year.11 When that happens, the used books are traded free of copyright regulation. Thus the books are no longer effectively controlled by copyright. The only practical commercial use of the books at that time is to sell the books as used books; that use?because it does not involve publication?is effectively free.
731
In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copyright from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years.
732
Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years.
733
In 1976, Congress extended all existing copyrights by nineteen years.
734
And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years.
735
The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the public domain will have been tolled for thirty-nine out of fifty-five years, or 70 percent of the time since 1962. Thus, in the twenty years after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term.
736
The effect of these extensions has been exacerbated by another, little-noticed change in the copyright law. Remember I said that the framers established a two-part copyright regime, requiring a copyright owner to renew his copyright after an initial term. The requirement of renewal meant that works that no longer needed copyright protection would pass more quickly into the public domain. The works remaining under protection would be those that had some continuing commercial value.
737
The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term?the maximum term. For ?natural? authors, that term was life plus fifty years. For corporations, the term was seventy-five years. Then, in 1992, Congress abandoned the renewal requirement for all works created before 1978. All works still under copyright would be accorded the maximum term then available. After the Sonny Bono Act, that term was ninety-five years.
738
This change meant that American law no longer had an automatic way to assure that works that were no longer exploited passed into the public domain. And indeed, after these changes, it is unclear whether it is even possible to put works into the public domain. The public domain is orphaned by these changes in copyright law. Despite the requirement that terms be ?limited,? we have no evidence that anything will limit them.
739
The effect of these changes on the average duration of copyright is dramatic. In 1973, more than 85 percent of copyright owners failed to renew their copyright. That meant that the average term of copyright in 1973 was just 32.2 years. Because of the elimination of the renewal requirement, the average term of copyright is now the maximum term.
740
In thirty years, then, the average term has tripled, from 32.2 years to 95 years.12

Law: Scope

741
The ?scope? of a copyright is the range of rights granted by the law.
742
The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we?re to keep this debate in context.
743
In 1790, that scope was very narrow. Copyright covered only ?maps, charts, and books.? That means it didn't cover, for example, music or architecture. More significantly, the right granted by a copyright gave the author the exclusive right to ?publish? copyrighted works. That means someone else violated the copyright only if he republished the work without the copyright owner's permission. Finally, the right granted by a copyright was an exclusive right to that particular book. The right did not extend to what lawyers call ?derivative works.? It would not, therefore, interfere with the right of someone other than the author to translate a copyrighted book, or to adapt the story to a different form (such as a drama based on a published book).
744
This, too, has changed dramatically. While the contours of copyright today are extremely hard to describe simply, in general terms, the right covers practically any creative work that is reduced to a tangible form. It covers music as well as architecture, drama as well as computer programs. It gives the copyright owner of that creative work not only the exclusive right to ?publish? the work, but also the exclusive right of control over any ?copies? of that work. And most significant for our purposes here, the right gives the copyright owner control over not only his or her particular work, but also any ?derivative work? that might grow out of the original work. In this way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work.
745
At the same time that the scope of copyright has expanded, procedural limitations on the right have been relaxed. I?ve already described the complete removal of the renewal requirement in 1992. In addition to the renewal requirement, for most of the history of American copyright law, there was a requirement that a work be registered before it could receive the protection of a copyright. There was also a requirement that any copyrighted work be marked either with that famous ? or the word copyright. And for most of the history of American copyright law, there was a requirement that works be deposited with the government before a copyright could be secured.
746
The reason for the registration requirement was the sensible understanding that for most works, no copyright was required. Again, in the first ten years of the Republic, 95 percent of works eligible for copyright were never copyrighted. Thus, the rule reflected the norm: Most works apparently didn't need copyright, so registration narrowed the regulation of the law to the few that did. The same reasoning justified the requirement that a work be marked as copyrighted?that way it was easy to know whether a copyright was being claimed. The requirement that works be deposited was to assure that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author.
747
All of these ?formalities? were abolished in the American system when we decided to follow European copyright law. There is no requirement that you register a work to get a copyright; the copyright now is automatic; the copyright exists whether or not you mark your work with a ?; and the copyright exists whether or not you actually make a copy available for others to copy.
748
Consider a practical example to understand the scope of these differences.
749
If, in 1790, you wrote a book and you were one of the 5 percent who actually copyrighted that book, then the copyright law protected you against another publisher's taking your book and republishing it without your permission. The aim of the act was to regulate publishers so as to prevent that kind of unfair competition. In 1790, there were 174 publishers in the United States.13 The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in the United States?publishers.
750
The act left other creators totally unregulated. If I copied your poem by hand, over and over again, as a way to learn it by heart, my act was totally unregulated by the 1790 act. If I took your novel and made a play based upon it, or if I translated it or abridged it, none of those activities were regulated by the original copyright act. These creative activities remained free, while the activities of publishers were restrained.
751
Today the story is very different: If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, every note to your spouse, every doodle, every creative act that's reduced to a tangible form?all of this is automatically copyrighted.
752
There is no need to register or mark your work. The protection follows the creation, not the steps you take to protect it.
753
That protection gives you the right (subject to a narrow range of fair use exceptions) to control how others copy the work, whether they copy it to republish it or to share an excerpt.
754
That much is the obvious part. Any system of copyright would control competing publishing. But there's a second part to the copyright of today that is not at all obvious. This is the protection of ?derivative rights.? If you write a book, no one can make a movie out of your book without permission. No one can translate it without permission.
755
CliffsNotes can't make an abridgment unless permission is granted. All of these derivative uses of your original work are controlled by the copyright holder. The copyright, in other words, is now not just an exclusive right to your writings, but an exclusive right to your writings and a large proportion of the writings inspired by them.
756
It is this derivative right that would seem most bizarre to our framers, though it has become second nature to us. Initially, this expansion was created to deal with obvious evasions of a narrower copyright.
757
If I write a book, can you change one word and then claim a copyright in a new and different book? Obviously that would make a joke of the copyright, so the law was properly expanded to include those slight modifications as well as the verbatim original work.
758
In preventing that joke, the law created an astonishing power within a free culture?at least, it's astonishing when you understand that the law applies not just to the commercial publisher but to anyone with a computer. I understand the wrong in duplicating and selling someone else's work. But whatever that wrong is, transforming someone else?s work is a different wrong. Some view transformation as no wrong at all?they believe that our law, as the framers penned it, should not protect derivative rights at all.14 Whether or not you go that far, it seems plain that whatever wrong is involved is fundamentally different from the wrong of direct piracy.
759
Yet copyright law treats these two different wrongs in the same way. I can go to court and get an injunction against your pirating my book. I can go to court and get an injunction against your transformative use of my book.15 These two different uses of my creative work are treated the same.
760
This again may seem right to you. If I wrote a book, then why should you be able to write a movie that takes my story and makes money from it without paying me or crediting me? Or if Disney creates a creature called ?Mickey Mouse,? why should you be able to make Mickey Mouse toys and be the one to trade on the value that Disney originally created?
761
These are good arguments, and, in general, my point is not that the derivative right is unjustified. My aim just now is much narrower: simply to make clear that this expansion is a significant change from the rights originally granted.

Law and Architecture: Reach

762
Whereas originally the law regulated only publishers, the change in copyright's scope means that the law today regulates publishers, users, and authors. It regulates them because all three are capable of making copies, and the core of the regulation of copyright law is copies.16
763
?Copies.? That certainly sounds like the obvious thing for copyright law to regulate. But as with Jack Valenti's argument at the start of this chapter, that ?creative property? deserves the ?same rights? as all other property, it is the obvious that we need to be most careful about. For while it may be obvious that in the world before the Internet, copies were the obvious trigger for copyright law, upon reflection, it should be obvious that in the world with the Internet, copies should not be the trigger for copyright law. More precisely, they should not always be the trigger for copyright law.
764
This is perhaps the central claim of this book, so let me take this very slowly so that the point is not easily missed. My claim is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies,17 because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law.
765
We can see this point abstractly by beginning with this largely empty circle.
766
Think about a book in real space, and imagine this circle to represent all its potential uses. Most of these uses are unregulated by copyright law, because the uses don't create a copy. If you read a book, that act is not regulated by copyright law. If you give someone the book, that act is not regulated by copyright law. If you resell a book, that act is not regulated (copyright law expressly states that after the first sale of a book, the copyright owner can impose no further conditions on the disposition of the book). If you sleep on the book or use it to hold up a lamp or let your puppy chew it up, those acts are not regulated by copyright law, because those acts do not make a copy.
767
Obviously, however, some uses of a copyrighted book are regulated by copyright law. Republishing the book, for example, makes a copy. It is therefore regulated by copyright law. Indeed, this particular use stands at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation (see first diagram on next page).
768
Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these ?fair uses.?
769
These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain unregulated.
770
You are free to quote from this book, even in a review that is quite negative, without my permission, even though that quoting makes a copy. That copy would ordinarily give the copyright owner the exclusive right to say whether the copy is allowed or not, but the law denies the owner any exclusive right over such ?fair uses? for public policy (and possibly First Amendment) reasons.
771
In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed ?fair? regardless of the copyright owner's views.
772
Enter the Internet?a distributed, digital network where every use of a copyrighted work produces a copy.18 And because of this single, arbitrary feature of the design of a digital network, the scope of category 1 changes dramatically. Uses that before were presumptively unregulated are now presumptively regulated. No longer is there a set of presumptively unregulated uses that define a freedom associated with a copyrighted work. Instead, each use is now subject to the copyright, because each use also makes a copy?category 1 gets sucked into category 2. And those who would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift.
773
So let's be very specific to make this general point clear. Before the Internet, if you purchased a book and read it ten times, there would be no plausible copyright-related argument that the copyright owner could make to control that use of her book. Copyright law would have nothing to say about whether you read the book once, ten times, or every night before you went to bed. None of those instances of use?reading? could be regulated by copyright law because none of those uses produced a copy.
774
But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner's wish.
775
There are some people who think this makes perfect sense. My aim just now is not to argue about whether it makes sense or not. My aim is only to make clear the change. Once you see this point, a few other points also become clear:
776
First, making category 1 disappear is not anything any policy maker ever intended. Congress did not think through the collapse of the presumptively unregulated uses of copyrighted works. There is no evidence at all that policy makers had this idea in mind when they allowed our policy here to shift. Unregulated uses were an important part of free culture before the Internet.
777
Second, this shift is especially troubling in the context of transformative uses of creative content. Again, we can all understand the wrong in commercial piracy. But the law now purports to regulate any transformation you make of creative work using a machine. ?Copy and paste? and ?cut and paste? become crimes. Tinkering with a story and releasing it to others exposes the tinkerer to at least a requirement of justification.
778
However troubling the expansion with respect to copying a particular work, it is extraordinarily troubling with respect to transformative uses of creative work.
779
Third, this shift from category 1 to category 2 puts an extraordinary burden on category 3 (?fair use?) that fair use never before had to bear.
780
If a copyright owner now tried to control how many times I could read a book on-line, the natural response would be to argue that this is a violation of my fair use rights. But there has never been any litigation about whether I have a fair use right to read, because before the Internet, reading did not trigger the application of copyright law and hence the need for a fair use defense. The right to read was effectively protected before because reading was not regulated.
781
This point about fair use is totally ignored, even by advocates for free culture. We have been cornered into arguing that our rights depend upon fair use?never even addressing the earlier question about the expansion in effective regulation. A thin protection grounded in fair use makes sense when the vast majority of uses are unregulated. But when everything becomes presumptively regulated, then the protections of fair use are not enough.
782
The case of Video Pipeline is a good example. Video Pipeline was in the business of making ?trailer? advertisements for movies available to video stores. The video stores displayed the trailers as a way to sell videos. Video Pipeline got the trailers from the film distributors, put the trailers on tape, and sold the tapes to the retail stores.
783
The company did this for about fifteen years. Then, in 1997, it began to think about the Internet as another way to distribute these previews.
784
The idea was to expand their ?selling by sampling? technique by giving on-line stores the same ability to enable ?browsing.? Just as in a bookstore you can read a few pages of a book before you buy the book, so, too, you would be able to sample a bit from the movie on-line before you bought it.
785
In 1998, Video Pipeline informed Disney and other film distributors that it intended to distribute the trailers through the Internet (rather than sending the tapes) to distributors of their videos. Two years later, Disney told Video Pipeline to stop. The owner of Video Pipeline asked Disney to talk about the matter?he had built a business on distributing this content as a way to help sell Disney films; he had customers who depended upon his delivering this content. Disney would agree to talk only if Video Pipeline stopped the distribution immediately.
786
Video Pipeline thought it was within their ?fair use? rights to distribute the clips as they had. So they filed a lawsuit to ask the court to declare that these rights were in fact their rights.
787
Disney countersued?for $100 million in damages. Those damages were predicated upon a claim that Video Pipeline had ?willfully infringed? on Disney's copyright. When a court makes a finding of willful infringement, it can award damages not on the basis of the actual harm to the copyright owner, but on the basis of an amount set in the statute. Because Video Pipeline had distributed seven hundred clips of Disney movies to enable video stores to sell copies of those movies, Disney was now suing Video Pipeline for $100 million.
788
Disney has the right to control its property, of course. But the video stores that were selling Disney's films also had some sort of right to be able to sell the films that they had bought from Disney. Disney's claim in court was that the stores were allowed to sell the films and they were permitted to list the titles of the films they were selling, but they were not allowed to show clips of the films as a way of selling them without Disney's permission.
789
Now, you might think this is a close case, and I think the courts would consider it a close case. My point here is to map the change that gives Disney this power. Before the Internet, Disney couldn't really control how people got access to their content. Once a video was in the marketplace, the ?first-sale doctrine? would free the seller to use the video as he wished, including showing portions of it in order to engender sales of the entire movie video. But with the Internet, it becomes possible for Disney to centralize control over access to this content. Because each use of the Internet produces a copy, use on the Internet becomes subject to the copyright owner's control. The technology expands the scope of effective control, because the technology builds a copy into every transaction.
790
No doubt, a potential is not yet an abuse, and so the potential for control is not yet the abuse of control. Barnes & Noble has the right to say you can't touch a book in their store; property law gives them that right.
791
But the market effectively protects against that abuse. If Barnes & Noble banned browsing, then consumers would choose other bookstores.
792
Competition protects against the extremes. And it may well be (my argument so far does not even question this) that competition would prevent any similar danger when it comes to copyright. Sure, publishers exercising the rights that authors have assigned to them might try to regulate how many times you read a book, or try to stop you from sharing the book with anyone. But in a competitive market such as the book market, the dangers of this happening are quite slight.
793
Again, my aim so far is simply to map the changes that this changed architecture enables. Enabling technology to enforce the control of copyright means that the control of copyright is no longer defined by balanced policy. The control of copyright is simply what private owners choose. In some contexts, at least, that fact is harmless. But in some contexts it is a recipe for disaster.

Architecture and Law: Force

794
The disappearance of unregulated uses would be change enough, but a second important change brought about by the Internet magnifies its significance. This second change does not affect the reach of copyright regulation; it affects how such regulation is enforced.
795
In the world before digital technology, it was generally the law that controlled whether and how someone was regulated by copyright law.
796
The law, meaning a court, meaning a judge: In the end, it was a human, trained in the tradition of the law and cognizant of the balances that tradition embraced, who said whether and how the law would restrict your freedom.
797
There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of Casablanca. Warner Brothers objected. They wrote a nasty letter to the Marxes, warning them that there would be serious legal consequences if they went forward with their plan.19
798
This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers ?were brothers long before you were.?20 The Marx Brothers therefore owned the word brothers, and if Warner Brothers insisted on trying to control Casablanca, then the Marx Brothers would insist on control over brothers.
799
An absurd and hollow threat, of course, because Warner Brothers, like the Marx Brothers, knew that no court would ever enforce such a silly claim. This extremism was irrelevant to the real freedoms anyone (including Warner Brothers) enjoyed.
800
On the Internet, however, there is no check on silly rules, because on the Internet, increasingly, rules are enforced not by a human but by a machine: Increasingly, the rules of copyright law, as interpreted by the copyright owner, get built into the technology that delivers copyrighted content. It is code, rather than law, that rules. And the problem with code regulations is that, unlike law, code has no shame. Code would not get the humor of the Marx Brothers. The consequence of that is not at all funny.
801
Consider the life of my Adobe eBook Reader.
802
An e-book is a book delivered in electronic form. An Adobe eBook is not a book that Adobe has published; Adobe simply produces the software that publishers use to deliver e-books. It provides the technology, and the publisher delivers the content by using the technology.
803
On the next page is a picture of an old version of my Adobe eBook Reader.
804
As you can see, I have a small collection of e-books within this e-book library. Some of these books reproduce content that is in the public domain: Middlemarch, for example, is in the public domain.
805
Some of them reproduce content that is not in the public domain: My own book The Future of Ideas is not yet within the public domain.
806
Consider Middlemarch first. If you click on my e-book copy of Middlemarch, you?ll see a fancy cover, and then a button at the bottom called Permissions.
807
If you click on the Permissions button, you?ll see a list of the permissions that the publisher purports to grant with this book.
808
According to my eBook Reader, I have the permission to copy to the clipboard of the computer ten text selections every ten days. (So far, I?ve copied no text to the clipboard.) I also have the permission to print ten pages from the book every ten days. Lastly, I have the permission to use the Read Aloud button to hear Middlemarch read aloud through the computer.
809
Here's the e-book for another work in the public domain (including the translation): Aristo- tle's Politics.
810
According to its permissions, no printing or copying is permitted at all. But fortunately, you can use the Read Aloud button to hear the book.
811
Finally (and most embarrassingly), here are the permissions for the original e-book version of my last book, The Future of Ideas:
812
No copying, no printing, and don't you dare try to listen to this book! Now, the Adobe eBook Reader calls these controls ?permissions?? as if the publisher has the power to control how you use these works.
813
For works under copyright, the copyright owner certainly does have the power?up to the limits of the copyright law. But for work not under copyright, there is no such copyright power.21 When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the publisher to control how I use the book on my computer, far beyond the control that the law would enable.
814
The control comes instead from the code?from the technology within which the e-book ?lives.? Though the e-book says that these are permissions, they are not the sort of ?permissions? that most of us deal with. When a teenager gets ?permission? to stay out till midnight, she knows (unless she's Cinderella) that she can stay out till 2 A.M., but will suffer a punishment if she's caught. But when the Adobe eBook Reader says I have the permission to make ten copies of the text into the computer's memory, that means that after I?ve made ten copies, the computer will not make any more. The same with the printing restrictions:
815
After ten pages, the eBook Reader will not print any more pages.
816
It's the same with the silly restriction that says that you can't use the Read Aloud button to read my book aloud?it's not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won't read aloud.
817
These are controls, not permissions. Imagine a world where the Marx Brothers sold word processing software that, when you tried to type ?Warner Brothers,? erased ?Brothers? from the sentence.
818
This is the future of copyright law: not so much copyright law as copyright code. The controls over access to content will not be controls that are ratified by courts; the controls over access to content will be controls that are coded by programmers. And whereas the controls that are built into the law are always to be checked by a judge, the controls that are built into the technology have no similar built-in check.
819
How significant is this? Isn't it always possible to get around the controls built into the technology? Software used to be sold with technologies that limited the ability of users to copy the software, but those were trivial protections to defeat. Why won't it be trivial to defeat these protections as well?
820
We?ve only scratched the surface of this story. Return to the Adobe eBook Reader.
821
Early in the life of the Adobe eBook Reader, Adobe suffered a public relations nightmare. Among the books that you could download for free on the Adobe site was a copy of Alice's Adventures in Wonderland.
822
This wonderful book is in the public domain. Yet when you clicked on Permissions for that book, you got the following report:
823
Here was a public domain children's book that you were not allowed to copy, not allowed to lend, not allowed to give, and, as the ?permissions? indicated, not allowed to ?read aloud?! The public relations nightmare attached to that final permission.
824
For the text did not say that you were not permitted to use the Read Aloud button; it said you did not have the permission to read the book aloud. That led some people to think that Adobe was restricting the right of parents, for example, to read the book to their children, which seemed, to say the least, absurd.
825
Adobe responded quickly that it was absurd to think that it was trying to restrict the right to read a book aloud. Obviously it was only restricting the ability to use the Read Aloud button to have the book read aloud. But the question Adobe never did answer is this: Would Adobe thus agree that a consumer was free to use software to hack around the restrictions built into the eBook Reader? If some company (call it Elcomsoft) developed a program to disable the technological protection built into an Adobe eBook so that a blind person, say, could use a computer to read the book aloud, would Adobe agree that such a use of an eBook Reader was fair? Adobe didn't answer because the answer, however absurd it might seem, is no.
826
The point is not to blame Adobe. Indeed, Adobe is among the most innovative companies developing strategies to balance open access to content with incentives for companies to innovate. But Adobe's technology enables control, and Adobe has an incentive to defend this control.
827
That incentive is understandable, yet what it creates is often crazy.
828
To see the point in a particularly absurd context, consider a favorite story of mine that makes the same point.
829
Consider the robotic dog made by Sony named ?Aibo.? The Aibo learns tricks, cuddles, and follows you around. It eats only electricity and that doesn't leave that much of a mess (at least in your house).
830
The Aibo is expensive and popular. Fans from around the world have set up clubs to trade stories. One fan in particular set up a Web site to enable information about the Aibo dog to be shared. This fan set up aibopet.com (and aibohack.com, but that resolves to the same site), and on that site he provided information about how to teach an Aibo to do tricks in addition to the ones Sony had taught it.
831
?Teach? here has a special meaning. Aibos are just cute computers.
832
You teach a computer how to do something by programming it differently.
833
So to say that aibopet.com was giving information about how to teach the dog to do new tricks is just to say that aibopet.com was giving information to users of the Aibo pet about how to hack their computer ?dog? to make it do new tricks (thus, aibohack.com).
834
If you?re not a programmer or don't know many programmers, the word hack has a particularly unfriendly connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in horror movies do even worse. But to programmers, or coders, as I call them, hack is a much more positive term. Hack just means code that enables the program to do something it wasn't originally intended or enabled to do. If you buy a new printer for an old computer, you might find the old computer doesn't run, or ?drive,? the printer. If you discovered that, you?d later be happy to discover a hack on the Net by someone who has written a driver to enable the computer to drive the printer you just bought.
835
Some hacks are easy. Some are unbelievably hard. Hackers as a community like to challenge themselves and others with increasingly difficult tasks. There's a certain respect that goes with the talent to hack well. There's a well-deserved respect that goes with the talent to hack ethically.
836
The Aibo fan was displaying a bit of both when he hacked the program and offered to the world a bit of code that would enable the Aibo to dance jazz. The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that turned the dog into a more talented creature than Sony had built.
837
I?ve told this story in many contexts, both inside and outside the United States. Once I was asked by a puzzled member of the audience, is it permissible for a dog to dance jazz in the United States? We forget that stories about the backcountry still flow across much of the world. So let's just be clear before we continue: It's not a crime anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it be a crime (though we don't have a lot to go on here) to teach your robot dog to dance jazz. Dancing jazz is a completely legal activity. One imagines that the owner of aibopet.com thought, What possible problem could there be with teaching a robot dog to dance?
838
Let's put the dog to sleep for a minute, and turn to a pony show? not literally a pony show, but rather a paper that a Princeton academic named Ed Felten prepared for a conference. This Princeton academic is well known and respected. He was hired by the government in the Microsoft case to test Microsoft's claims about what could and could not be done with its own code. In that trial, he demonstrated both his brilliance and his coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his ground. He was not about to be bullied into being silent about something he knew very well.
839
But Felten's bravery was really tested in April 2001.22 He and a group of colleagues were working on a paper to be submitted at conference.
840
The paper was intended to describe the weakness in an encryption system being developed by the Secure Digital Music Initiative as a technique to control the distribution of music.
841
The SDMI coalition had as its goal a technology to enable content owners to exercise much better control over their content than the Internet, as it originally stood, granted them. Using encryption, SDMI hoped to develop a standard that would allow the content owner to say ?this music cannot be copied,? and have a computer respect that command.
842
The technology was to be part of a ?trusted system? of control that would get content owners to trust the system of the Internet much more.
843
When SDMI thought it was close to a standard, it set up a competition.
844
In exchange for providing contestants with the code to an SDMI-encrypted bit of content, contestants were to try to crack it and, if they did, report the problems to the consortium.
845
Felten and his team figured out the encryption system quickly. He and the team saw the weakness of this system as a type: Many encryption systems would suffer the same weakness, and Felten and his team thought it worthwhile to point this out to those who study encryption.
846
Let's review just what Felten was doing. Again, this is the United States. We have a principle of free speech. We have this principle not just because it is the law, but also because it is a really great idea. A strongly protected tradition of free speech is likely to encourage a wide range of criticism. That criticism is likely, in turn, to improve the systems or people or ideas criticized.
847
What Felten and his colleagues were doing was publishing a paper describing the weakness in a technology. They were not spreading free music, or building and deploying this technology. The paper was an academic essay, unintelligible to most people. But it clearly showed the weakness in the SDMI system, and why SDMI would not, as presently constituted, succeed.
848
What links these two, aibopet.com and Felten, is the letters they then received. Aibopet.com received a letter from Sony about the aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:
849
Your site contains information providing the means to circumvent AIBO-ware's copy protection protocol constituting a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act.
850
And though an academic paper describing the weakness in a system of encryption should also be perfectly legal, Felten received a letter from an RIAA lawyer that read:
851
Any disclosure of information gained from participating in the Public Challenge would be outside the scope of activities permitted by the Agreement and could subject you and your research team to actions under the Digital Millennium Copyright Act (?DMCA?).
852
In both cases, this weirdly Orwellian law was invoked to control the spread of information. The Digital Millennium Copyright Act made spreading such information an offense.
853
The DMCA was enacted as a response to copyright owners' first fear about cyberspace. The fear was that copyright control was effectively dead; the response was to find technologies that might compensate.
854
These new technologies would be copyright protection technologies? technologies to control the replication and distribution of copyrighted material. They were designed as code to modify the original code of the Internet, to reestablish some protection for copyright owners.
855
The DMCA was a bit of law intended to back up the protection of this code designed to protect copyrighted material. It was, we could say, legal code intended to buttress software code which itself was intended to support the legal code of copyright.
856
But the DMCA was not designed merely to protect copyrighted works to the extent copyright law protected them. Its protection, that is, did not end at the line that copyright law drew. The DMCA regulated devices that were designed to circumvent copyright protection measures. It was designed to ban those devices, whether or not the use of the copyrighted material made possible by that circumvention would have been a copyright violation.
857
Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright protection system for the purpose of enabling the dog to dance jazz. That enablement no doubt involved the use of copyrighted material. But as aibopet.com's site was noncommercial, and the use did not enable subsequent copyright infringements, there's no doubt that aibopet.com's hack was fair use of Sony's copyrighted material. Yet fair use is not a defense to the DMCA. The question is not whether the use of the copyrighted material was a copyright violation. The question is whether a copyright protection system was circumvented.
858
The threat against Felten was more attenuated, but it followed the same line of reasoning. By publishing a paper describing how a copyright protection system could be circumvented, the RIAA lawyer suggested, Felten himself was distributing a circumvention technology.
859
Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright.
860
The bizarreness of these arguments is captured in a cartoon drawn in 1981 by Paul Conrad. At that time, a court in California had held that the VCR could be banned because it was a copyright-infringing technology: It enabled consumers to copy films without the permission of the copyright owner. No doubt there were uses of the technology that were legal: Fred Rogers, aka ?Mr. Rogers,? for example, had testified in that case that he wanted people to feel free to tape Mr. Rogers? Neighborhood.
861
Some public stations, as well as commercial stations, program the ?Neighborhood? at hours when some children cannot use it. I think that it's a real service to families to be able to record such programs and show them at appropriate times. I have always felt that with the advent of all of this new technology that allows people to tape the ?Neighborhood? off-the-air, and I'm speaking for the ?Neighborhood? because that's what I produce, that they then become much more active in the programming of their family's television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been ?You are an important person just the way you are. You can make healthy decisions.? Maybe I'm going on too long, but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important.
862
Even though there were uses that were legal, because there were some uses that were illegal, the court held the companies producing the VCR responsible.
863
This led Conrad to draw the cartoon below, which we can adopt to the DMCA.
864
No argument I have can top this picture, but let me try to get close.
865
The anticircumvention provisions of the DMCA target copyright circumvention technologies. Circumvention technologies can be used for different ends. They can be used, for example, to enable massive pirating of copyrighted material?a bad end. Or they can be used to enable the use of particular copyrighted materials in ways that would be considered fair use?a good end.
866
A handgun can be used to shoot a police officer or a child. Most would agree such a use is bad. Or a handgun can be used for target practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses.
867
The obvious point of Conrad's cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do.
868
The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright owners restrict fair use; using the DMCA, they punish those who would attempt to evade the restrictions on fair use that they impose through code. Technology becomes a means by which fair use can be erased; the law of the DMCA backs up that erasing.
869
This is how code becomes law. The controls built into the technology of copy and access protection become rules the violation of which is also a violation of the law. In this way, the code extends the law?increasing its regulation, even if the subject it regulates (activities that would otherwise plainly constitute fair use) is beyond the reach of the law. Code becomes law; code extends the law; code thus extends the control that copyright owners effect?at least for those copyright holders with the lawyers who can write the nasty letters that Felten and aibopet.com received.
870
There is one final aspect of the interaction between architecture and law that contributes to the force of copyright's regulation. This is the ease with which infringements of the law can be detected. For contrary to the rhetoric common at the birth of cyberspace that on the Internet, no one knows you?re a dog, increasingly, given changing technologies deployed on the Internet, it is easy to find the dog who committed a legal wrong. The technologies of the Internet are open to snoops as well as sharers, and the snoops are increasingly good at tracking down the identity of those who violate the rules.
871
For example, imagine you were part of a Star Trek fan club. You gathered every month to share trivia, and maybe to enact a kind of fan fiction about the show. One person would play Spock, another, Captain Kirk. The characters would begin with a plot from a real story, then simply continue it.24
872
Before the Internet, this was, in effect, a totally unregulated activity.
873
No matter what happened inside your club room, you would never be interfered with by the copyright police. You were free in that space to do as you wished with this part of our culture. You were allowed to build on it as you wished without fear of legal control.
874
But if you moved your club onto the Internet, and made it generally available for others to join, the story would be very different. Bots scouring the Net for trademark and copyright infringement would quickly find your site. Your posting of fan fiction, depending upon the ownership of the series that you?re depicting, could well inspire a lawyer?s threat. And ignoring the lawyer's threat would be extremely costly indeed.
875
The law of copyright is extremely efficient. The penalties are severe, and the process is quick.
876
This change in the effective force of the law is caused by a change in the ease with which the law can be enforced. That change too shifts the law's balance radically. It is as if your car transmitted the speed at which you traveled at every moment that you drove; that would be just one step before the state started issuing tickets based upon the data you transmitted. That is, in effect, what is happening here.

Market: Concentration

877
So copyright's duration has increased dramatically?tripled in the past thirty years. And copyright's scope has increased as well?from regulating only publishers to now regulating just about everyone. And copyright's reach has changed, as every action becomes a copy and hence presumptively regulated. And as technologists find better ways to control the use of content, and as copyright is increasingly enforced through technology, copyright's force changes, too. Misuse is easier to find and easier to control. This regulation of the creative process, which began as a tiny regulation governing a tiny part of the market for creative work, has become the single most important regulator of creativity there is. It is a massive expansion in the scope of the government?s control over innovation and creativity; it would be totally unrecognizable to those who gave birth to copyright's control.
878
Still, in my view, all of these changes would not matter much if it weren't for one more change that we must also consider. This is a change that is in some sense the most familiar, though its significance and scope are not well understood. It is the one that creates precisely the reason to be concerned about all the other changes I have described.
879
This is the change in the concentration and integration of the media.
880
In the past twenty years, the nature of media ownership has undergone a radical alteration, caused by changes in legal rules governing the media.
881
Before this change happened, the different forms of media were owned by separate media companies. Now, the media is increasingly owned by only a few companies. Indeed, after the changes that the FCC announced in June 2003, most expect that within a few years, we will live in a world where just three companies control more than 85 percent of the media.
882
These changes are of two sorts: the scope of concentration, and its nature.
883
Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media ownership, ?five companies control 85 percent of our media sources.?25
884
The five recording labels of Universal Music Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8 percent of the U.S. music market.26 The ?five largest cable companies pipe programming to 74 percent of the cable subscribers nationwide.?27
885
The story with radio is even more dramatic. Before deregulation, the nation's largest radio broadcasting conglomerate owned fewer than seventy-five stations. Today one company owns more than 1,200 stations.
886
During that period of consolidation, the total number of radio owners dropped by 34 percent. Today, in most markets, the two largest broadcasters control 74 percent of that market's revenues. Overall, just four companies control 90 percent of the nation's radio advertising revenues.
887
Newspaper ownership is becoming more concentrated as well. Today, there are six hundred fewer daily newspapers in the United States than there were eighty years ago, and ten companies control half of the nation's circulation. There are twenty major newspaper publishers in the United States. The top ten film studios receive 99 percent of all film revenue. The ten largest cable companies account for 85 percent of all cable revenue. This is a market far from the free press the framers sought to protect. Indeed, it is a market that is quite well protected? by the market.
888
Concentration in size alone is one thing. The more invidious change is in the nature of that concentration. As author James Fallows put it in a recent article about Rupert Murdoch, Murdoch's companies now constitute a production system unmatched in its integration. They supply content?Fox movies . . .
889
Fox TV shows ...Fox-controlled sports broadcasts, plus newspapers and books. They sell the content to the public and to adver- tisers?in newspapers, on the broadcast network, on the cable channels. And they operate the physical distribution system through which the content reaches the customers. Murdoch?s satellite systems now distribute News Corp. content in Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that system will serve the same function in the United States.28
890
The pattern with Murdoch is the pattern of modern media. Not just large companies owning many radio stations, but a few companies owning as many outlets of media as possible. A picture describes this pattern better than a thousand words could do:
891
Does this concentration matter? Will it affect what is made, or what is distributed? Or is it merely a more efficient way to produce and distribute content?
892
My view was that concentration wouldn't matter. I thought it was nothing more than a more efficient financial structure. But now, after reading and listening to a barrage of creators try to convince me to the contrary, I am beginning to change my mind.
893
Here's a representative story that begins to suggest how this integration may matter.
894
In 1969, Norman Lear created a pilot for All in the Family. He took the pilot to ABC. The network didn't like it. It was too edgy, they told Lear. Make it again. Lear made a second pilot, more edgy than the first. ABC was exasperated. You?re missing the point, they told Lear.
895
We wanted less edgy, not more.
896
Rather than comply, Lear simply took the show elsewhere. CBS was happy to have the series; ABC could not stop Lear from walking.
897
The copyrights that Lear held assured an independence from network control.29
898
The network did not control those copyrights because the law forbade the networks from controlling the content they syndicated. The law required a separation between the networks and the content producers; that separation would guarantee Lear freedom. And as late as 1992, because of these rules, the vast majority of prime time televi- sion?75 percent of it?was ?independent? of the networks.
899
In 1994, the FCC abandoned the rules that required this independence.
900
After that change, the networks quickly changed the balance.
901
In 1985, there were twenty-five independent television production studios; in 2002, only five independent television studios remained. ?In 1992, only 15 percent of new series were produced for a network by a company it controlled. Last year, the percentage of shows produced by controlled companies more than quintupled to 77 percent.? ?In 1992, 16 new series were produced independently of conglomerate control, last year there was one.?30 In 2002, 75 percent of prime time television was owned by the networks that ran it. ?In the ten-year period between 1992 and 2002, the number of prime time television hours per week produced by network studios increased over 200%, whereas the number of prime time television hours per week produced by independent studios decreased 63%.?31
902
Today, another Norman Lear with another All in the Family would find that he had the choice either to make the show less edgy or to be fired: The content of any show developed for a network is increasingly owned by the network.
903
While the number of channels has increased dramatically, the ownership of those channels has narrowed to an ever smaller and smaller few. As Barry Diller said to Bill Moyers,
904
Well, if you have companies that produce, that finance, that air on their channel and then distribute worldwide everything that goes through their controlled distribution system, then what you get is fewer and fewer actual voices participating in the process. [We u]sed to have dozens and dozens of thriving independent production companies producing television programs. Now you have less than a handful.32
905
This narrowing has an effect on what is produced. The product of such large and concentrated networks is increasingly homogenous. Increasingly safe. Increasingly sterile. The product of news shows from networks like this is increasingly tailored to the message the network wants to convey. This is not the communist party, though from the inside, it must feel a bit like the communist party. No one can question without risk of consequence?not necessarily banishment to Siberia, but punishment nonetheless. Independent, critical, different views are quashed. This is not the environment for a democracy.
906
Economics itself offers a parallel that explains why this integration affects creativity. Clay Christensen has written about the ?Innovator?s Dilemma?: the fact that large traditional firms find it rational to ignore new, breakthrough technologies that compete with their core business.
907
The same analysis could help explain why large, traditional media companies would find it rational to ignore new cultural trends.33 Lumbering giants not only don?t, but should not, sprint. Yet if the field is only open to the giants, there will be far too little sprinting.
908
I don't think we know enough about the economics of the media market to say with certainty what concentration and integration will do. The efficiencies are important, and the effect on culture is hard to measure.
909
But there is a quintessentially obvious example that does strongly suggest the concern.
910
In addition to the copyright wars, we?re in the middle of the drug wars. Government policy is strongly directed against the drug cartels; criminal and civil courts are filled with the consequences of this battle.
911
Let me hereby disqualify myself from any possible appointment to any position in government by saying I believe this war is a profound mistake. I am not pro drugs. Indeed, I come from a family once wrecked by drugs?though the drugs that wrecked my family were all quite legal. I believe this war is a profound mistake because the collateral damage from it is so great as to make waging the war insane.
912
When you add together the burdens on the criminal justice system, the desperation of generations of kids whose only real economic opportunities are as drug warriors, the queering of constitutional protections because of the constant surveillance this war requires, and, most profoundly, the total destruction of the legal systems of many South American nations because of the power of the local drug cartels, I find it impossible to believe that the marginal benefit in reduced drug consumption by Americans could possibly outweigh these costs.
913
You may not be convinced. That's fine. We live in a democracy, and it is through votes that we are to choose policy. But to do that, we depend fundamentally upon the press to help inform Americans about these issues.
914
Beginning in 1998, the Office of National Drug Control Policy launched a media campaign as part of the ?war on drugs.? The campaign produced scores of short film clips about issues related to illegal drugs. In one series (the Nick and Norm series) two men are in a bar, discussing the idea of legalizing drugs as a way to avoid some of the collateral damage from the war. One advances an argument in favor of drug legalization. The other responds in a powerful and effective way against the argument of the first. In the end, the first guy changes his mind (hey, it's television). The plug at the end is a damning attack on the pro-legalization campaign.
915
Fair enough. It's a good ad. Not terribly misleading. It delivers its message well. It's a fair and reasonable message.
916
But let's say you think it is a wrong message, and you?d like to run a countercommercial. Say you want to run a series of ads that try to demonstrate the extraordinary collateral harm that comes from the drug war. Can you do it?
917
Well,obviously, these ads cost lots of money. Assume you raise the money. Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then?
918
No.You cannot. Television stations have a general policy of avoiding ?controversial? ads. Ads sponsored by the government are deemed uncontroversial; ads disagreeing with the government are controversial.
919
This selectivity might be thought inconsistent with the First Amendment, but the Supreme Court has held that stations have the right to choose what they run. Thus, the major channels of commercial media will refuse one side of a crucial debate the opportunity to present its case.
920
And the courts will defend the rights of the stations to be this biased.34
921
I?d be happy to defend the networks' rights, as well?if we lived in a media market that was truly diverse. But concentration in the media throws that condition into doubt. If a handful of companies control access to the media, and that handful of companies gets to decide which political positions it will allow to be promoted on its channels, then in an obvious and important way, concentration matters. You might like the positions the handful of companies selects. But you should not like a world in which a mere few get to decide which issues the rest of us get to know about.

Together

922
There is something innocent and obvious about the claim of the copyright warriors that the government should ?protect my property.? In the abstract, it is obviously true and, ordinarily, totally harmless. No sane sort who is not an anarchist could disagree.
923
But when we see how dramatically this ?property? has changed? when we recognize how it might now interact with both technology and markets to mean that the effective constraint on the liberty to cultivate our culture is dramatically different?the claim begins to seem less innocent and obvious. Given (1) the power of technology to supplement the law's control, and (2) the power of concentrated markets to weaken the opportunity for dissent, if strictly enforcing the massively expanded ?property? rights granted by copyright fundamentally changes the freedom within this culture to cultivate and build upon our past, then we have to ask whether this property should be redefined.
924
Not starkly. Or absolutely. My point is not that we should abolish copyright or go back to the eighteenth century. That would be a total mistake, disastrous for the most important creative enterprises within our culture today.
925
But there is a space between zero and one, Internet culture notwithstanding.
926
And these massive shifts in the effective power of copyright regulation, tied to increased concentration of the content industry and resting in the hands of technology that will increasingly enable control over the use of culture, should drive us to consider whether another adjustment is called for. Not an adjustment that increases copyright?s power. Not an adjustment that increases its term. Rather, an adjustment to restore the balance that has traditionally defined copyright?s regulation?a weakening of that regulation, to strengthen creativity.
927
Copyright law has not been a rock of Gibraltar. It's not a set of constant commitments that, for some mysterious reason, teenagers and geeks now flout. Instead, copyright power has grown dramatically in a short period of time, as the technologies of distribution and creation have changed and as lobbyists have pushed for more control by copyright holders. Changes in the past in response to changes in technology suggest that we may well need similar changes in the future. And these changes have to be reductions in the scope of copyright, in response to the extraordinary increase in control that technology and the market enable.
928
For the single point that is lost in this war on pirates is a point that we see only after surveying the range of these changes. When you add together the effect of changing law, concentrated markets, and changing technology, together they produce an astonishing conclusion:
929
Never in our history have fewer had a legal right to control more of the development of our culture than now.
930
Not when copyrights were perpetual, for when copyrights were perpetual, they affected only that precise creative work. Not when only publishers had the tools to publish, for the market then was much more diverse. Not when there were only three television networks, for even then, newspapers, film studios, radio stations, and publishers were independent of the networks. Never has copyright protected such a wide range of rights, against as broad a range of actors, for a term that was remotely as long. This form of regulation?a tiny regulation of a tiny part of the creative energy of a nation at the founding?is now a massive regulation of the overall creative process. Law plus technology plus the market now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has known.35
931
This has been a long chapter. Its point can now be briefly stated.
932
At the start of this book, I distinguished between commercial and noncommercial culture. In the course of this chapter, I have distinguished between copying a work and transforming it. We can now combine these two distinctions and draw a clear map of the changes that copyright law has undergone.
933
In 1790, the law looked like this:
934
PUBLISH TRANSFORM Commercial ? Free Noncommercial Free Free The act of publishing a map, chart, and book was regulated by copyright law. Nothing else was. Transformations were free. And as copyright attached only with registration, and only those who intended to benefit commercially would register, copying through publishing of noncommercial work was also free.
935
By the end of the nineteenth century, the law had changed to this:
936
PUBLISH TRANSFORM Commercial ? ? Noncommercial Free Free
937
Derivative works were now regulated by copyright law?if published, which again, given the economics of publishing at the time, means if offered commercially. But noncommercial publishing and transformation were still essentially free.
938
In 1909 the law changed to regulate copies, not publishing, and after this change, the scope of the law was tied to technology. As the technology of copying became more prevalent, the reach of the law expanded.
939
Thus by 1975, as photocopying machines became more common, we could say the law began to look like this:
940
COPY TRANSFORM Commercial ? ? Noncommercial ?/Free Free
941
The law was interpreted to reach noncommercial copying through, say, copy machines, but still much of copying outside of the commercial market remained free. But the consequence of the emergence of digital technologies, especially in the context of a digital network, means that the law now looks like this:
942
COPY TRANSFORM Commercial ? ? Noncommercial ? ?
943
Every realm is governed by copyright law, whereas before most creativity was not. The law now regulates the full range of creativity? commercial or not, transformative or not?with the same rules designed to regulate commercial publishers.
944
Obviously, copyright law is not the enemy. The enemy is regulation that does no good. So the question that we should be asking just now is whether extending the regulations of copyright law into each of these domains actually does any good.
945
I have no doubt that it does good in regulating commercial copying.
946
But I also have no doubt that it does more harm than good when regulating (as it regulates just now) noncommercial copying and, especially, noncommercial transformation. And increasingly, for the reasons sketched especially in chapters 7 and 8, one might well wonder whether it does more harm than good for commercial transformation.
947
More commercial transformative work would be created if derivative rights were more sharply restricted.
948
The issue is therefore not simply whether copyright is property. Of course copyright is a kind of ?property,? and of course, as with any property, the state ought to protect it. But first impressions notwithstanding, historically, this property right (as with all property rights36) has been crafted to balance the important need to give authors and artists incentives with the equally important need to assure access to creative work. This balance has always been struck in light of new technologies.
949
And for almost half of our tradition, the ?copyright? did not control at all the freedom of others to build upon or transform a creative work. American culture was born free, and for almost 180 years our country consistently protected a vibrant and rich free culture.
950
We achieved that free culture because our law respected important limits on the scope of the interests protected by ?property.? The very birth of ?copyright? as a statutory right recognized those limits, by granting copyright owners protection for a limited time only (the story of chapter 6). The tradition of ?fair use? is animated by a similar concern that is increasingly under strain as the costs of exercising any fair use right become unavoidably high (the story of chapter 7). Adding statutory rights where markets might stifle innovation is another familiar limit on the property right that copyright is (chapter 8). And granting archives and libraries a broad freedom to collect, claims of property notwithstanding, is a crucial part of guaranteeing the soul of a culture (chapter 9). Free cultures, like free markets, are built with property. But the nature of the property that builds a free culture is very different from the extremist vision that dominates the debate today.
951
Free culture is increasingly the casualty in this war on piracy. In response to a real, if not yet quantified, threat that the technologies of the Internet present to twentieth-century business models for producing and distributing culture, the law and technology are being transformed in a way that will undermine our tradition of free culture. The property right that is copyright is no longer the balanced right that it was, or was intended to be. The property right that is copyright has become unbalanced, tilted toward an extreme. The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must check with a lawyer.

Puzzles

Chapter Eleven: Chimera

952
Inawell-known short story by H. G. Wells, a mountain climber named Nunez trips (literally, down an ice slope) into an unknown and isolated valley in the Peruvian Andes.1 The valley is extraordinarily beautiful, with ?sweet water, pasture, an even climate, slopes of rich brown soil with tangles of a shrub that bore an excellent fruit.? But the villagers are all blind. Nunez takes this as an opportunity. ?In the Country of the Blind,? he tells himself, ?the One-Eyed Man is King.?
953
So he resolves to live with the villagers to explore life as a king.
954
Things don't go quite as he planned. He tries to explain the idea of sight to the villagers. They don't understand. He tells them they are ?blind.? They don't have the word blind. They think he's just thick. Indeed, as they increasingly notice the things he can't do (hear the sound of grass being stepped on, for example), they increasingly try to control him. He, in turn, becomes increasingly frustrated. ? ?You don't understand,? he cried, in a voice that was meant to be great and resolute, and which broke. ?You are blind and I can see. Leave me alone!? ?
955
The villagers don't leave him alone. Nor do they see (so to speak) the virtue of his special power. Not even the ultimate target of his affection, a young woman who to him seems ?the most beautiful thing in the whole of creation,? understands the beauty of sight. Nunez's description of what he sees ?seemed to her the most poetical of fancies, and she listened to his description of the stars and the mountains and her own sweet white-lit beauty as though it was a guilty indulgence.?
956
?She did not believe,? Wells tells us, and ?she could only half understand, but she was mysteriously delighted.?
957
When Nunez announces his desire to marry his ?mysteriously delighted? love, the father and the village object. ?You see, my dear,? her father instructs, ?he's an idiot. He has delusions. He can't do anything right.? They take Nunez to the village doctor.
958
After a careful examination, the doctor gives his opinion. ?His brain is affected,? he reports.
959
?What affects it?? the father asks.
960
?Those queer things that are called the eyes ...are diseased ...in such a way as to affect his brain.?
961
The doctor continues: ?I think I may say with reasonable certainty that in order to cure him completely, all that we need to do is a simple and easy surgical operation?namely, to remove these irritant bodies [the eyes].?
962
?Thank Heaven for science!? says the father to the doctor. They inform Nunez of this condition necessary for him to be allowed his bride.
963
(You?ll have to read the original to learn what happens in the end. I believe in free culture, but never in giving away the end of a story.) It sometimes happens that the eggs of twins fuse in the mother?s womb. That fusion produces a ?chimera.? A chimera is a single creature with two sets of DNA. The DNA in the blood, for example, might be different from the DNA of the skin. This possibility is an underused plot for murder mysteries. ?But the DNA shows with 100 percent certainty that she was not the person whose blood was at the scene ?
964
Before I had read about chimeras, I would have said they were impossible.
965
A single person can't have two sets of DNA. The very idea of DNA is that it is the code of an individual. Yet in fact, not only can two individuals have the same set of DNA (identical twins), but one person can have two different sets of DNA (a chimera). Our understanding of a ?person? should reflect this reality.
966
The more I work to understand the current struggle over copyright and culture, which I?ve sometimes called unfairly, and sometimes not unfairly enough, ?the copyright wars,? the more I think we?re dealing with a chimera. For example, in the battle over the question ?What is p2p file sharing?? both sides have it right, and both sides have it wrong.
967
One side says, ?File sharing is just like two kids taping each others? records?the sort of thing we?ve been doing for the last thirty years without any question at all.? That's true, at least in part. When I tell my best friend to try out a new CD that I?ve bought, but rather than just send the CD, I point him to my p2p server, that is, in all relevant respects, just like what every executive in every recording company no doubt did as a kid: sharing music.
968
But the description is also false in part. For when my p2p server is on a p2p network through which anyone can get access to my music, then sure, my friends can get access, but it stretches the meaning of ?friends? beyond recognition to say ?my ten thousand best friends? can get access. Whether or not sharing my music with my best friend is what ?we have always been allowed to do,? we have not always been allowed to share music with ?our ten thousand best friends.?
969
Likewise, when the other side says, ?File sharing is just like walking into a Tower Records and taking a CD off the shelf and walking out with it,? that's true, at least in part. If, after Lyle Lovett (finally) releases a new album, rather than buying it, I go to Kazaa and find a free copy to take, that is very much like stealing a copy from Tower.
970
But it is not quite stealing from Tower. After all, when I take a CD from Tower Records, Tower has one less CD to sell. And when I take a CD from Tower Records, I get a bit of plastic and a cover, and something to show on my shelves. (And, while we?re at it, we could also note that when I take a CD from Tower Records, the maximum fine that might be imposed on me, under California law, at least, is $1,000. According to the RIAA, by contrast, if I download a ten-song CD, I'm liable for $1,500,000 in damages.)
971
The point is not that it is as neither side describes. The point is that it is both?both as the RIAA describes it and as Kazaa describes it. It is a chimera. And rather than simply denying what the other side asserts, we need to begin to think about how we should respond to this chimera. What rules should govern it?
972
We could respond by simply pretending that it is not a chimera. We could, with the RIAA, decide that every act of file sharing should be a felony. We could prosecute families for millions of dollars in damages just because file sharing occurred on a family computer. And we can get universities to monitor all computer traffic to make sure that no computer is used to commit this crime. These responses might be extreme, but each of them has either been proposed or actually implemented.2 Alternatively, we could respond to file sharing the way many kids act as though we?ve responded. We could totally legalize it. Let there be no copyright liability, either civil or criminal, for making copyrighted content available on the Net. Make file sharing like gossip: regulated, if at all, by social norms but not by law.
973
Either response is possible. I think either would be a mistake.
974
Rather than embrace one of these two extremes, we should embrace something that recognizes the truth in both. And while I end this book with a sketch of a system that does just that, my aim in the next chapter is to show just how awful it would be for us to adopt the zero-tolerance extreme. I believe either extreme would be worse than a reasonable alternative.
975
But I believe the zero-tolerance solution would be the worse of the two extremes.
976
Yet zero tolerance is increasingly our government's policy. In the middle of the chaos that the Internet has created, an extraordinary land grab is occurring. The law and technology are being shifted to give content holders a kind of control over our culture that they have never had before. And in this extremism, many an opportunity for new innovation and new creativity will be lost.
977
I'm not talking about the opportunities for kids to ?steal? music. My focus instead is the commercial and cultural innovation that this war will also kill. We have never seen the power to innovate spread so broadly among our citizens, and we have just begun to see the innovation that this power will unleash. Yet the Internet has already seen the passing of one cycle of innovation around technologies to distribute content. The law is responsible for this passing. As the vice president for global public policy at one of these new innovators, eMusic.com, put it when criticizing the DMCA's added protection for copyrighted material, eMusic opposes music piracy. We are a distributor of copyrighted material, and we want to protect those rights.
978
But building a technology fortress that locks in the clout of the major labels is by no means the only way to protect copyright interests, nor is it necessarily the best. It is simply too early to answer that question. Market forces operating naturally may very well produce a totally different industry model.
979
This is a critical point. The choices that industry sectors make with respect to these systems will in many ways directly shape the market for digital media and the manner in which digital media are distributed. This in turn will directly influence the options that are available to consumers, both in terms of the ease with which they will be able to access digital media and the equipment that they will require to do so. Poor choices made this early in the game will retard the growth of this market, hurting everyone?s interests.3
980
In April 2001, eMusic.com was purchased by Vivendi Universal, one of ?the major labels.? Its position on these matters has now changed.
981
Reversing our tradition of tolerance now will not merely quash piracy. It will sacrifice values that are important to this culture, and will kill opportunities that could be extraordinarily valuable.

Chapter Twelve: Harms

982
To fight ?piracy,? to protect ?property,? the content industry has launched a war. Lobbying and lots of campaign contributions have now brought the government into this war. As with any war, this one will have both direct and collateral damage. As with any war of prohibition, these damages will be suffered most by our own people.
983
My aim so far has been to describe the consequences of this war, in particular, the consequences for ?free culture.? But my aim now is to extend this description of consequences into an argument. Is this war justified? In my view, it is not. There is no good reason why this time, for the first time, the law should defend the old against the new, just when the power of the property called ?intellectual property? is at its greatest in our history.
984
Yet ?common sense? does not see it this way. Common sense is still on the side of the Causbys and the content industry. The extreme claims of control in the name of property still resonate; the uncritical rejection of ?piracy? still has play.
985
There will be many consequences of continuing this war. I want to describe just three. All three might be said to be unintended. I am quite confident the third is unintended. I'm less sure about the first two. The first two protect modern RCAs, but there is no Howard Armstrong in the wings to fight today's monopolists of culture.
986

Constraining Creators

987
In the next ten years we will see an explosion of digital technologies.
988
These technologies will enable almost anyone to capture and share content. Capturing and sharing content, of course, is what humans have done since the dawn of man. It is how we learn and communicate. But capturing and sharing through digital technology is different. The fidelity and power are different. You could send an e-mail telling someone about a joke you saw on Comedy Central, or you could send the clip. You could write an essay about the inconsistencies in the arguments of the politician you most love to hate, or you could make a short film that puts statement against statement. You could write a poem to express your love, or you could weave together a string?a mash-up? of songs from your favorite artists in a collage and make it available on the Net.
989
This digital ?capturing and sharing? is in part an extension of the capturing and sharing that has always been integral to our culture, and in part it is something new. It is continuous with the Kodak, but it explodes the boundaries of Kodak-like technologies. The technology of digital ?capturing and sharing? promises a world of extraordinarily diverse creativity that can be easily and broadly shared. And as that creativity is applied to democracy, it will enable a broad range of citizens to use technology to express and criticize and contribute to the culture all around.
990
Technology has thus given us an opportunity to do something with culture that has only ever been possible for individuals in small groups, isolated from others. Think about an old man telling a story to a collection of neighbors in a small town. Now imagine that same storytelling extended across the globe.
991
Yet all this is possible only if the activity is presumptively legal. In the current regime of legal regulation, it is not. Forget file sharing for amoment. Think about your favorite amazing sites on the Net. Web sites that offer plot summaries from forgotten television shows; sites that catalog cartoons from the 1960s; sites that mix images and sound to criticize politicians or businesses; sites that gather newspaper articles on remote topics of science or culture. There is a vast amount of creative work spread across the Internet. But as the law is currently crafted, this work is presumptively illegal.
992
That presumption will increasingly chill creativity, as the examples of extreme penalties for vague infringements continue to proliferate. It is impossible to get a clear sense of what's allowed and what's not, and at the same time, the penalties for crossing the line are astonishingly harsh.
993
The four students who were threatened by the RIAA ( Jesse Jordan of chapter 3 was just one) were threatened with a $98 billion lawsuit for building search engines that permitted songs to be copied. Yet World- Com?which defrauded investors of $11 billion, resulting in a loss to investors in market capitalization of over $200 billion?received a fine of a mere $750 million.1 And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering.2 Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient?
994
The consequence of this legal uncertainty, tied to these extremely high penalties, is that an extraordinary amount of creativity will either never be exercised, or never be exercised in the open. We drive this creative process underground by branding the modern-day Walt Disneys ?pirates.? We make it impossible for businesses to rely upon a public domain, because the boundaries of the public domain are designed to be unclear. It never pays to do anything except pay for the right to create, and hence only those who can pay are allowed to create. As was the case in the Soviet Union, though for very different reasons, we will begin to see a world of underground art?not because the message is necessarily political, or because the subject is controversial, but because the very act of creating the art is legally fraught. Already, exhibits of ?illegal art? tour the United States.3 In what does their ?illegality? consist? In the act of mixing the culture around us with an expression that is critical or reflective.
995
Part of the reason for this fear of illegality has to do with the changing law. I described that change in detail in chapter 10. But an even bigger part has to do with the increasing ease with which infractions can be tracked. As users of file-sharing systems discovered in 2002, it is a trivial matter for copyright owners to get courts to order Internet service providers to reveal who has what content. It is as if your cassette tape player transmitted a list of the songs that you played in the privacy of your own home that anyone could tune into for whatever reason they chose.
996
Never in our history has a painter had to worry about whether his painting infringed on someone else's work; but the modern-day painter, using the tools of Photoshop, sharing content on the Web, must worry all the time. Images are all around, but the only safe images to use in the act of creation are those purchased from Corbis or another image farm. And in purchasing, censoring happens. There is a free market in pencils; we needn't worry about its effect on creativity. But there is a highly regulated, monopolized market in cultural icons; the right to cultivate and transform them is not similarly free.
997
Lawyers rarely see this because lawyers are rarely empirical. As I described in chapter 7, in response to the story about documentary filmmaker Jon Else, I have been lectured again and again by lawyers who insist Else's use was fair use, and hence I am wrong to say that the law regulates such a use.
998
But fair use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astonishingly bad?in practically every context, but especially here. It costs too much, it delivers too slowly, and what it delivers often has little connection to the justice underlying the claim. The legal system may be tolerable for the very rich.
999
For everyone else, it is an embarrassment to a tradition that prides itself on the rule of law.
1000
Judges and lawyers can tell themselves that fair use provides adequate ?breathing room? between regulation by the law and the access the law should allow. But it is a measure of how out of touch our legal system has become that anyone actually believes this. The rules that publishers impose upon writers, the rules that film distributors impose upon filmmakers, the rules that newspapers impose upon journalists? these are the real laws governing creativity. And these rules have little relationship to the ?law? with which judges comfort themselves.
1001
For in a world that threatens $150,000 for a single willful infringement of a copyright, and which demands tens of thousands of dollars to even defend against a copyright infringement claim, and which would never return to the wrongfully accused defendant anything of the costs she suffered to defend her right to speak?in that world, the astonishingly broad regulations that pass under the name ?copyright? silence speech and creativity. And in that world, it takes a studied blindness for people to continue to believe they live in a culture that is free.
1002
As Jed Horovitz, the businessman behind Video Pipeline, said to me, We?re losing [creative] opportunities right and left. Creative people are being forced not to express themselves. Thoughts are not being expressed. And while a lot of stuff may [still] be created, it still won't get distributed. Even if the stuff gets made ...you?re not going to get it distributed in the mainstream media unless you?ve got a little note from a lawyer saying, ?This has been cleared.? You?re not even going to get it on PBS without that kind of permission. That's the point at which they control it.

Constraining Innovators

1003
The story of the last section was a crunchy-lefty story?creativity quashed, artists who can't speak, yada yada yada. Maybe that doesn?t get you going. Maybe you think there's enough weird art out there, and enough expression that is critical of what seems to be just about everything.
1004
And if you think that, you might think there's little in this story to worry you.
1005
But there's an aspect of this story that is not lefty in any sense. Indeed, it is an aspect that could be written by the most extreme promarket ideologue. And if you?re one of these sorts (and a special one at that, 188 pages into a book like this), then you can see this other aspect by substituting ?free market? every place I?ve spoken of ?free culture.? The point is the same, even if the interests affecting culture are more fundamental.
1006
The charge I?ve been making about the regulation of culture is the same charge free marketers make about regulating markets. Everyone, of course, concedes that some regulation of markets is necessary?at a minimum, we need rules of property and contract, and courts to enforce both. Likewise, in this culture debate, everyone concedes that at least some framework of copyright is also required. But both perspectives vehemently insist that just because some regulation is good, it doesn't follow that more regulation is better. And both perspectives are constantly attuned to the ways in which regulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow.
1007
This is the single most dramatic effect of the shift in regulatory strategy that I described in chapter 10. The consequence of this massive threat of liability tied to the murky boundaries of copyright law is that innovators who want to innovate in this space can safely innovate only if they have the sign-off from last generation's dominant industries.
1008
That lesson has been taught through a series of cases that were designed and executed to teach venture capitalists a lesson. That les- son?what former Napster CEO Hank Barry calls a ?nuclear pall? that has fallen over the Valley?has been learned.
1009
Consider one example to make the point, a story whose beginning I told in The Future of Ideas and which has progressed in a way that even I (pessimist extraordinaire) would never have predicted.
1010
In 1997, Michael Roberts launched a company called MP3.com.
1011
MP3.com was keen to remake the music business. Their goal was not just to facilitate new ways to get access to content. Their goal was also to facilitate new ways to create content. Unlike the major labels, MP3.com offered creators a venue to distribute their creativity, without demanding an exclusive engagement from the creators.
1012
To make this system work, however, MP3.com needed a reliable way to recommend music to its users. The idea behind this alternative was to leverage the revealed preferences of music listeners to recommend new artists. If you like Lyle Lovett, you?re likely to enjoy Bonnie Raitt. And so on.
1013
This idea required a simple way to gather data about user preferences.
1014
MP3.com came up with an extraordinarily clever way to gather this preference data. In January 2000, the company launched a service called my.mp3.com. Using software provided by MP3.com, a user would sign into an account and then insert into her computer a CD. The software would identify the CD, and then give the user access to that content.
1015
So, for example, if you inserted a CD by Jill Sobule, then wherever you were?at work or at home?you could get access to that music once you signed into your account. The system was therefore a kind of music-lockbox.
1016
No doubt some could use this system to illegally copy content. But that opportunity existed with or without MP3.com. The aim of the my.mp3.com service was to give users access to their own content, and as a by-product, by seeing the content they already owned, to discover the kind of content the users liked.
1017
To make this system function, however, MP3.com needed to copy 50,000 CDs to a server. (In principle, it could have been the user who uploaded the music, but that would have taken a great deal of time, and would have produced a product of questionable quality.) It therefore purchased 50,000 CDs from a store, and started the process of making copies of those CDs. Again, it would not serve the content from those copies to anyone except those who authenticated that they had a copy of the CD they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving customers something they had already bought.
1018
Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of the five. Nine months later, a federal judge found MP3.com to have been guilty of willful infringement with respect to the fifth. Applying the law as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com then settled with the remaining plaintiff, Vivendi Universal, paying over $54 million. Vivendi purchased MP3.com just about a year later.
1019
That part of the story I have told before. Now consider its conclusion.
1020
After Vivendi purchased MP3.com, Vivendi turned around and filed a malpractice lawsuit against the lawyers who had advised it that they had a good faith claim that the service they wanted to offer would be considered legal under copyright law. This lawsuit alleged that it should have been obvious that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded.
1021
The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in the press) was to send an unequivocal message to lawyers advising clients in this space: It is not just your clients who might suffer if the content industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly.
1022
This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of its development, its cofounder ( John Hummer), and general partner (Hank Barry).4 The claim here, as well, was that the VC should have recognized the right of the content industry to control how the industry should develop. They should be held personally liable for funding a company whose business turned out to be beyond the law. Here again, the aim of the lawsuit is transparent: Any VC now recognizes that if you fund a company whose business is not approved of by the dinosaurs, you are at risk not just in the marketplace, but in the courtroom as well.
1023
Your investment buys you not only a company, it also buys you a lawsuit.
1024
So extreme has the environment become that even car manufacturers are afraid of technologies that touch content. In an article in Business 2.0, Rafe Needleman describes a discussion with BMW:
1025
I asked why, with all the storage capacity and computer power in the car, there was no way to play MP3 files. I was told that BMW engineers in Germany had rigged a new vehicle to play MP3s via the car's built-in sound system, but that the company's marketing and legal departments weren't comfortable with pushing this forward for release stateside. Even today, no new cars are sold in the United States with bona fide MP3 players.5
1026
This is the world of the mafia?filled with ?your money or your life? offers, governed in the end not by courts but by the threats that the law empowers copyright holders to exercise. It is a system that will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly hard if that company is constantly threatened by litigation.
1027
The point is not that businesses should have a right to start illegal enterprises. The point is the definition of ?illegal.? The law is a mess of uncertainty. We have no good way to know how it should apply to new technologies. Yet by reversing our tradition of judicial deference, and by embracing the astonishingly high penalties that copyright law imposes, that uncertainty now yields a reality which is far more conservative than is right. If the law imposed the death penalty for parking tickets, we?d not only have fewer parking tickets, we?d also have much less driving. The same principle applies to innovation. If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity.
1028
The point is directly parallel to the crunchy-lefty point about fair use. Whatever the ?real? law is, realism about the effect of law in both contexts is the same. This wildly punitive system of regulation will systematically stifle creativity and innovation. It will protect some industries and some creators, but it will harm industry and creativity generally. Free market and free culture depend upon vibrant competition.
1029
Yet the effect of the law today is to stifle just this kind of competition.
1030
The effect is to produce an overregulated culture, just as the effect of too much control in the market is to produce an overregulatedregulated market.
1031
The building of a permission culture, rather than a free culture, is the first important way in which the changes I have described will burden innovation. A permission culture means a lawyer's culture?a culture in which the ability to create requires a call to your lawyer. Again, I am not antilawyer, at least when they?re kept in their proper place. I am certainly not antilaw. But our profession has lost the sense of its limits. And leaders in our profession have lost an appreciation of the high costs that our profession imposes upon others. The inefficiency of the law is an embarrassment to our tradition. And while I believe our profession should therefore do everything it can to make the law more efficient, it should at least do everything it can to limit the reach of the law where the law is not doing any good. The transaction costs buried within a permission culture are enough to bury a wide range of creativity.
1032
Someone needs to do a lot of justifying to justify that result.
1033
The uncertainty of the law is one burden on innovation. There is a second burden that operates more directly. This is the effort by many in the content industry to use the law to directly regulate the technology of the Internet so that it better protects their content.
1034
The motivation for this response is obvious. The Internet enables the efficient spread of content. That efficiency is a feature of the Inter- net's design. But from the perspective of the content industry, this feature is a ?bug.? The efficient spread of content means that content distributors have a harder time controlling the distribution of content.
1035
One obvious response to this efficiency is thus to make the Internet less efficient. If the Internet enables ?piracy,? then, this response says, we should break the kneecaps of the Internet.
1036
The examples of this form of legislation are many. At the urging of the content industry, some in Congress have threatened legislation that would require computers to determine whether the content they access is protected or not, and to disable the spread of protected content.6 Congress has already launched proceedings to explore a mandatory ?broadcast flag? that would be required on any device capable of transmitting digital video (i.e., a computer), and that would disable the copying of any content that is marked with a broadcast flag. Other members of Congress have proposed immunizing content providers from liability for technology they might deploy that would hunt down copyright violators and disable their machines.7
1037
In one sense, these solutions seem sensible. If the problem is the code, why not regulate the code to remove the problem. But any regulation of technical infrastructure will always be tuned to the particular technology of the day. It will impose significant burdens and costs on the technology, but will likely be eclipsed by advances around exactly those requirements.
1038
In March 2002, a broad coalition of technology companies, led by Intel, tried to get Congress to see the harm that such legislation would impose.8 Their argument was obviously not that copyright should not be protected. Instead, they argued, any protection should not do more harm than good.
1039
There isone more obvious way in which this war has harmed in- novation?again, a story that will be quite familiar to the free market crowd.
1040
Copyright may be property, but like all property, it is also a form of regulation. It is a regulation that benefits some and harms others.
1041
When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors.
1042
As I described in chapter 10, despite this feature of copyright as regulation, and subject to important qualifications outlined by Jessica Litman in her book Digital Copyright,9 overall this history of copyright is not bad. As chapter 10 details, when new technologies have come along, Congress has struck a balance to assure that the new is protected from the old. Compulsory, or statutory, licenses have been one part of that strategy. Free use (as in the case of the VCR) has been another.
1043
But that pattern of deference to new technologies has now changed with the rise of the Internet. Rather than striking a balance between the claims of a new technology and the legitimate rights of content creators, both the courts and Congress have imposed legal restrictions that will have the effect of smothering the new to benefit the old.
1044
The response by the courts has been fairly universal.10 It has been mirrored in the responses threatened and actually implemented by Congress. I won't catalog all of those responses here.11 But there is one example that captures the flavor of them all. This is the story of the demise of Internet radio.
1045
As I described in chapter 4, when a radio station plays a song, the recording artist doesn't get paid for that ?radio performance? unless he or she is also the composer. So, for example if Marilyn Monroe had recorded a version of ?Happy Birthday??to memorialize her famous performance before President Kennedy at Madison Square Garden? then whenever that recording was played on the radio, the current copyright owners of ?Happy Birthday? would get some money, whereas Marilyn Monroe would not.
1046
The reasoning behind this balance struck by Congress makes some sense. The justification was that radio was a kind of advertising. The recording artist thus benefited because by playing her music, the radio station was making it more likely that her records would be purchased.
1047
Thus, the recording artist got something, even if only indirectly. Probably this reasoning had less to do with the result than with the power of radio stations: Their lobbyists were quite good at stopping any efforts to get Congress to require compensation to the recording artists.
1048
Enter Internet radio. Like regular radio, Internet radio is a technology to stream content from a broadcaster to a listener. The broadcast travels across the Internet, not across the ether of radio spectrum.
1049
Thus, I can ?tune in? to an Internet radio station in Berlin while sitting in San Francisco, even though there's no way for me to tune in to a regular radio station much beyond the San Francisco metropolitan area.
1050
This feature of the architecture of Internet radio means that there are potentially an unlimited number of radio stations that a user could tune in to using her computer, whereas under the existing architecture for broadcast radio, there is an obvious limit to the number of broadcasters and clear broadcast frequencies. Internet radio could therefore be more competitive than regular radio; it could provide a wider range of selections. And because the potential audience for Internet radio is the whole world, niche stations could easily develop and market their content to a relatively large number of users worldwide. According to some estimates, more than eighty million users worldwide have tuned in to this new form of radio.
1051
Internet radio is thus to radio what FM was to AM. It is an improvement potentially vastly more significant than the FM improvement over AM, since not only is the technology better, so, too, is the competition. Indeed, there is a direct parallel between the fight to establish FM radio and the fight to protect Internet radio. As one author describes Howard Armstrong's struggle to enable FM radio, An almost unlimited number of FM stations was possible in the shortwaves, thus ending the unnatural restrictions imposed on radio in the crowded longwaves. If FM were freely developed, the number of stations would be limited only by economics and competition rather than by technical restrictions. ...Armstrong likened the situation that had grown up in radio to that following the invention of the printing press, when governments and ruling interests attempted to control this new instrument of mass communications by imposing restrictive licenses on it. This tyranny was broken only when it became possible for men freely to acquire printing presses and freely to run them. FM in this sense was as great an invention as the printing presses, for it gave radio the opportunity to strike off its shackles.12
1052
This potential for FM radio was never realized?not because Armstrong was wrong about the technology, but because he underestimated the power of ?vested interests, habits, customs and legislation?13 to retard the growth of this competing technology.
1053
Now the very same claim could be made about Internet radio. For again, there is no technical limitation that could restrict the number of Internet radio stations. The only restrictions on Internet radio are those imposed by the law. Copyright law is one such law. So the first question we should ask is, what copyright rules would govern Internet radio?
1054
But here the power of the lobbyists is reversed. Internet radio is a new industry. The recording artists, on the other hand, have a very powerful lobby, the RIAA. Thus when Congress considered the phenomenon of Internet radio in 1995, the lobbyists had primed Congress to adopt a different rule for Internet radio than the rule that applies to terrestrial radio. While terrestrial radio does not have to pay our hypothetical Marilyn Monroe when it plays her hypothetical recording of ?Happy Birthday? on the air, Internet radio does. Not only is the law not neutral toward Internet radio?the law actually burdens Internet radio more than it burdens terrestrial radio.
1055
This financial burden is not slight. As Harvard law professor William Fisher estimates, if an Internet radio station distributed adfree popular music to (on average) ten thousand listeners, twenty-four hours a day, the total artist fees that radio station would owe would be over $1 million a year.14 A regular radio station broadcasting the same content would pay no equivalent fee.
1056
The burden is not financial only. Under the original rules that were proposed, an Internet radio station (but not a terrestrial radio station) would have to collect the following data from every listening transaction:
1057
1. name of the service; 2. channel of the program (AM/FM stations use station ID); 3. type of program (archived/looped/live); 4. date of transmission; 5. time of transmission; 6. time zone of origination of transmission; 7. numeric designation of the place of the sound recording within the program; 8. duration of transmission (to nearest second); 9. sound recording title; 10. ISRC code of the recording; 11. release year of the album per copyright notice and in the case of compilation albums, the release year of the album and copyright date of the track; 12. featured recording artist; 13. retail album title; 14. recording label; 15. UPC code of the retail album; 16. catalog number; 17. copyright owner information; 18. musical genre of the channel or program (station format); 19. name of the service or entity; 20. channel or program; 21. date and time that the user logged in (in the user's time zone); 22. date and time that the user logged out (in the user's time zone); 23. time zone where the signal was received (user); 24. Unique User identifier; 25. the country in which the user received the transmissions.
1058
The Librarian of Congress eventually suspended these reporting requirements, pending further study. And he also changed the original rates set by the arbitration panel charged with setting rates. But the basic difference between Internet radio and terrestrial radio remains:
1059
Internet radio has to pay a type of copyright fee that terrestrial radio does not.
1060
Why? What justifies this difference? Was there any study of the economic consequences from Internet radio that would justify these differences? Was the motive to protect artists against piracy? In a rare bit of candor, one RIAA expert admitted what seemed obvious to everyone at the time. As Alex Alben, vice president for Public Policy at Real Networks, told me,
1061
The RIAA, which was representing the record labels, presented some testimony about what they thought a willing buyer would pay to a willing seller, and it was much higher. It was ten times higher than what radio stations pay to perform the same songs for the same period of time. And so the attorneys representing the webcasters asked the RIAA, ...?How do you come up with a rate that's so much higher? Why is it worth more than radio? Because here we have hundreds of thousands of webcasters who want to pay, and that should establish the market rate, and if you set the rate so high, you?re going to drive the small webcasters out of business ?
1062
And the RIAA experts said, ?Well, we don't really model this as an industry with thousands of webcasters, we think it should be an industry with, you know, five or seven big players who can pay a high rate and it's a stable, predictable market.? (Emphasis added.) Translation: The aim is to use the law to eliminate competition, so that this platform of potentially immense competition, which would cause the diversity and range of content available to explode, would not cause pain to the dinosaurs of old. There is no one, on either the right or the left, who should endorse this use of the law. And yet there is practically no one, on either the right or the left, who is doing anything effective to prevent it.

Corrupting Citizens

1063
Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables.
1064
In addition to these important harms, there is one more that was important to our forebears, but seems forgotten today. Overregulation corrupts citizens and weakens the rule of law.
1065
The war that is being waged today is a war of prohibition. As with every war of prohibition, it is targeted against the behavior of a very large number of citizens. According to The New York Times, 43 million Americans downloaded music in May 2002.15 According to the RIAA, the behavior of those 43 million Americans is a felony. We thus have a set of rules that transform 20 percent of America into criminals. As the RIAA launches lawsuits against not only the Napsters and Kazaas of the world, but against students building search engines, and increasingly against ordinary users downloading content, the technologies for sharing will advance to further protect and hide illegal use. It is an arms race or a civil war, with the extremes of one side inviting a more extreme response by the other.
1066
The content industry's tactics exploit the failings of the American legal system. When the RIAA brought suit against Jesse Jordan, it knew that in Jordan it had found a scapegoat, not a defendant. The threat of having to pay either all the money in the world in damages ($15,000,000) or almost all the money in the world to defend against paying all the money in the world in damages ($250,000 in legal fees) led Jordan to choose to pay all the money he had in the world ($12,000) to make the suit go away. The same strategy animates the RIAA's suits against individual users. In September 2003, the RIAA sued 261 individuals?including a twelve-year-old girl living in public housing and a seventy-year-old man who had no idea what file sharing was.16 As these scapegoats discovered, it will always cost more to defend against these suits than it would cost to simply settle. (The twelve year old, for example, like Jesse Jordan, paid her life savings of $2,000 to settle the case.) Our law is an awful system for defending rights. It is an embarrassment to our tradition. And the consequence of our law as it is, is that those with the power can use the law to quash any rights they oppose.
1067
Wars of prohibition are nothing new in America. This one is just something more extreme than anything we?ve seen before. We experimented with alcohol prohibition, at a time when the per capita consumption of alcohol was 1.5 gallons per capita per year. The war against drinking initially reduced that consumption to just 30 percent of its preprohibition levels, but by the end of prohibition, consumption was up to 70 percent of the preprohibition level. Americans were drinking just about as much, but now, a vast number were criminals.17 We have launched a war on drugs aimed at reducing the consumption of regulated narcotics that 7 percent (or 16 million) Americans now use.18
1068
That is a drop from the high (so to speak) in 1979 of 14 percent of the population. We regulate automobiles to the point where the vast majority of Americans violate the law every day. We run such a complex tax system that a majority of cash businesses regularly cheat.19 We pride ourselves on our ?free society,? but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law.
1069
This state of affairs is not without consequence. It is a particularly salient issue for teachers like me, whose job it is to teach law students about the importance of ?ethics.? As my colleague Charlie Nesson told a class at Stanford, each year law schools admit thousands of students who have illegally downloaded music, illegally consumed alcohol and sometimes drugs, illegally worked without paying taxes, illegally driven cars. These are kids for whom behaving illegally is increasingly the norm. And then we, as law professors, are supposed to teach them how to behave ethically?how to say no to bribes, or keep client funds separate, or honor a demand to disclose a document that will mean that your case is over. Generations of Americans?more significantly in some parts of America than in others, but still, everywhere in America today?can't live their lives both normally and legally, since ?normally? entails a certain degree of illegality.
1070
The response to this general illegality is either to enforce the law more severely or to change the law. We, as a society, have to learn how to make that choice more rationally. Whether a law makes sense depends, in part, at least, upon whether the costs of the law, both intended and collateral, outweigh the benefits. If the costs, intended and collateral, do outweigh the benefits, then the law ought to be changed.
1071
Alternatively, if the costs of the existing system are much greater than the costs of an alternative, then we have a good reason to consider the alternative.
1072
My point is not the idiotic one: Just because people violate a law, we should therefore repeal it. Obviously, we could reduce murder statistics dramatically by legalizing murder on Wednesdays and Fridays. But that wouldn't make any sense, since murder is wrong every day of the week. A society is right to ban murder always and everywhere.
1073
My point is instead one that democracies understood for generations, but that we recently have learned to forget. The rule of law depends upon people obeying the law. The more often, and more repeatedly, we as citizens experience violating the law, the less we respect the law. Obviously, in most cases, the important issue is the law, not respect for the law. I don't care whether the rapist respects the law or not; I want to catch and incarcerate the rapist. But I do care whether my students respect the law. And I do care if the rules of law sow increasing disrespect because of the extreme of regulation they impose.
1074
Twenty million Americans have come of age since the Internet introduced this different idea of ?sharing.? We need to be able to call these twenty million Americans ?citizens,? not ?felons.?
1075
When at least forty-three million citizens download content from the Internet, and when they use tools to combine that content in ways unauthorized by copyright holders, the first question we should be asking is not how best to involve the FBI. The first question should be whether this particular prohibition is really necessary in order to achieve the proper ends that copyright law serves. Is there another way to assure that artists get paid without transforming forty-three million Americans into felons? Does it make sense if there are other ways to assure that artists get paid without transforming America into a nation of felons?
1076
This abstract point can be made more clear with a particular example.
1077
We all own CDs. Many of us still own phonograph records. These pieces of plastic encode music that in a certain sense we have bought.
1078
The law protects our right to buy and sell that plastic: It is not a copyright infringement for me to sell all my classical records at a used record store and buy jazz records to replace them. That ?use? of the recordings is free.
1079
But as the MP3 craze has demonstrated, there is another use of phonograph records that is effectively free. Because these recordings were made without copy-protection technologies, I am ?free? to copy, or ?rip,? music from my records onto a computer hard disk. Indeed, Apple Corporation went so far as to suggest that ?freedom? was a right:
1080
In a series of commercials, Apple endorsed the ?Rip, Mix, Burn? capacities of digital technologies.
1081
This ?use? of my records is certainly valuable. I have begun a large process at home of ripping all of my and my wife's CDs, and storing them in one archive. Then, using Apple's iTunes, or a wonderful program called Andromeda, we can build different play lists of our music:
1082
Bach, Baroque, Love Songs, Love Songs of Significant Others?the potential is endless. And by reducing the costs of mixing play lists, these technologies help build a creativity with play lists that is itself independently valuable. Compilations of songs are creative and meaningful in their own right.
1083
This use is enabled by unprotected media?either CDs or records.
1084
But unprotected media also enable file sharing. File sharing threatens (or so the content industry believes) the ability of creators to earn a fair return from their creativity. And thus, many are beginning to experiment with technologies to eliminate unprotected media. These technologies, for example, would enable CDs that could not be ripped. Or they might enable spy programs to identify ripped content on people?s machines.
1085
If these technologies took off, then the building of large archives of your own music would become quite difficult. You might hang in hacker circles, and get technology to disable the technologies that protect the content. Trading in those technologies is illegal, but maybe that doesn't bother you much. In any case, for the vast majority of people, these protection technologies would effectively destroy the archiving PUZZLES 203
1086
use of CDs. The technology, in other words, would force us all back to the world where we either listened to music by manipulating pieces of plastic or were part of a massively complex ?digital rights management? system.
1087
If the only way to assure that artists get paid were the elimination of the ability to freely move content, then these technologies to interfere with the freedom to move content would be justifiable. But what if there were another way to assure that artists are paid, without locking down any content? What if, in other words, a different system could assure compensation to artists while also preserving the freedom to move content easily?
1088
My point just now is not to prove that there is such a system. I offer a version of such a system in the last chapter of this book. For now, the only point is the relatively uncontroversial one: If a different system achieved the same legitimate objectives that the existing copyright system achieved, but left consumers and creators much more free, then we?d have a very good reason to pursue this alternative?namely, freedom.
1089
The choice, in other words, would not be between property and piracy; the choice would be between different property systems and the freedoms each allowed.
1090
I believe there is a way to assure that artists are paid without turning forty-three million Americans into felons. But the salient feature of this alternative is that it would lead to a very different market for producing and distributing creativity. The dominant few, who today control the vast majority of the distribution of content in the world, would no longer exercise this extreme of control. Rather, they would go the way of the horse-drawn buggy.
1091
Except that this generation's buggy manufacturers have already saddled Congress, and are riding the law to protect themselves against this new form of competition. For them the choice is between forty-three million Americans as criminals and their own survival.
1092
It is understandable why they choose as they do. It is not understandable why we as a democracy continue to choose as we do. Jack Valenti is charming; but not so charming as to justify giving up a tradition as deep and important as our tradition of free culture.
1093
There's one more aspect to this corruption that is particularly important to civil liberties, and follows directly from any war of prohibition.
1094
As Electronic Frontier Foundation attorney Fred von Lohmann describes, this is the ?collateral damage? that ?arises whenever you turn a very large percentage of the population into criminals.? This is the collateral damage to civil liberties generally.
1095
?If you can treat someone as a putative lawbreaker,? von Lohmann explains,
1096
then all of a sudden a lot of basic civil liberty protections evaporate to one degree or another.... If you?re a copyright infringer, how can you hope to have any privacy rights? If you?re a copyright infringer, how can you hope to be secure against seizures of your computer? How can you hope to continue to receive Internet access? ...Our sensibilities change as soon as we think, ?Oh, well, but that person's a criminal, a lawbreaker.? Well, what this campaign against file sharing has done is turn a remarkable percentage of the American Internet-using population into ?lawbreakers.? And the consequence of this transformation of the American public into criminals is that it becomes trivial, as a matter of due process, to effectively erase much of the privacy most would presume.
1097
Users of the Internet began to see this generally in 2003 as the RIAA launched its campaign to force Internet service providers to turn over the names of customers who the RIAA believed were violating copyright law. Verizon fought that demand and lost. With a simple request to a judge, and without any notice to the customer at all, the identity of an Internet user is revealed.
1098
The RIAA then expanded this campaign, by announcing a general strategy to sue individual users of the Internet who are alleged to have downloaded copyrighted music from file-sharing systems. But as we?ve seen, the potential damages from these suits are astronomical: If a fam- ily's computer is used to download a single CD's worth of music, the family could be liable for $2 million in damages. That didn't stop the RIAA from suing a number of these families, just as they had sued Jesse Jordan.20
1099
Even this understates the espionage that is being waged by the RIAA. A report from CNN late last summer described a strategy the RIAA had adopted to track Napster users.21 Using a sophisticated hashing algorithm, the RIAA took what is in effect a fingerprint of every song in the Napster catalog. Any copy of one of those MP3s will have the same ?fingerprint.?
1100
So imagine the following not-implausible scenario: Imagine a friend gives a CD to your daughter?a collection of songs just like the cassettes you used to make as a kid. You don't know, and neither does your daughter, where these songs came from. But she copies these songs onto her computer. She then takes her computer to college and connects it to a college network, and if the college network is ?cooperating? with the RIAA's espionage, and she hasn't properly protected her content from the network (do you know how to do that yourself ?), then the RIAA will be able to identify your daughter as a ?criminal.? And under the rules that universities are beginning to deploy,22 your daughter can lose the right to use the university's computer network.
1101
She can, in some cases, be expelled.
1102
Now, of course, she?ll have the right to defend herself. You can hire a lawyer for her (at $300 per hour, if you?re lucky), and she can plead that she didn't know anything about the source of the songs or that they came from Napster. And it may well be that the university believes her. But the university might not believe her. It might treat this ?contraband? as presumptive of guilt. And as any number of college students have already learned, our presumptions about innocence disappear in the middle of wars of prohibition. This war is no different.
1103
Says von Lohmann,
1104
So when we?re talking about numbers like forty to sixty million Americans that are essentially copyright infringers, you create a situation where the civil liberties of those people are very much in peril in a general matter. [I don?t] think [there is any] analog where you could randomly choose any person off the street and be confident that they were committing an unlawful act that could put them on the hook for potential felony liability or hundreds of millions of dollars of civil liability. Certainly we all speed, but speeding isn't the kind of an act for which we routinely forfeit civil liberties. Some people use drugs, and I think that's the closest analog, [but] many have noted that the war against drugs has eroded all of our civil liberties because it's treated so many Americans as criminals. Well, I think it's fair to say that file sharing is an order of magnitude larger number of Americans than drug use. ... If forty to sixty million Americans have become lawbreakers, then we?re really on a slippery slope to lose a lot of civil liberties for all forty to sixty million of them.
1105
When forty to sixty million Americans are considered ?criminals? under the law, and when the law could achieve the same objective? securing rights to authors?without these millions being considered ?criminals,? who is the villain? Americans or the law? Which is American, a constant war on our own people or a concerted effort through our democracy to change our law?

balances

1106

1107
So here's the picture: You?re standing at the side of the road. Your car is on fire. You are angry and upset because in part you helped start the fire. Now you don't know how to put it out. Next to you is a bucket, filled with gasoline. Obviously, gasoline won't put the fire out.
1108
As you ponder the mess, someone else comes along. In a panic, she grabs the bucket. Before you have a chance to tell her to stop?or before she understands just why she should stop?the bucket is in the air.
1109
The gasoline is about to hit the blazing car. And the fire that gasoline will ignite is about to ignite everything around.
1110
A war about copyright rages all around?and we?re all focusing on the wrong thing. No doubt, current technologies threaten existing businesses.
1111
No doubt they may threaten artists. But technologies change.
1112
The industry and technologists have plenty of ways to use technology to protect themselves against the current threats of the Internet. This is a fire that if let alone would burn itself out.
1113
Yet policy makers are not willing to leave this fire to itself. Primed with plenty of lobbyists' money, they are keen to intervene to eliminate the problem they perceive. But the problem they perceive is not the real threat this culture faces. For while we watch this small fire in the corner, there is a massive change in the way culture is made that is happening all around.
1114
Somehow we have to find a way to turn attention to this more important and fundamental issue. Somehow we have to find a way to avoid pouring gasoline onto this fire.
1115
We have not found that way yet. Instead, we seem trapped in a simpler, binary view. However much many people push to frame this debate more broadly, it is the simple, binary view that remains. We rubberneck to look at the fire when we should be keeping our eyes on the road.
1116
This challenge has been my life these last few years. It has also been my failure. In the two chapters that follow, I describe one small brace of efforts, so far failed, to find a way to refocus this debate. We must understand these failures if we?re to understand what success will require.
1117

Chapter Thirteen: Eldred

1118
In 1995, a father was frustrated that his daughters didn't seem to like Hawthorne. No doubt there was more than one such father, but at least one did something about it. Eric Eldred, a retired computer programmer living in New Hampshire, decided to put Hawthorne on the Web. An electronic version, Eldred thought, with links to pictures and explanatory text, would make this nineteenth-century author's work come alive.
1119
It didn't work?at least for his daughters. They didn't find Hawthorne any more interesting than before. But Eldred's experiment gave birth to a hobby, and his hobby begat a cause: Eldred would build a library of public domain works by scanning these works and making them available for free.
1120
Eldred's library was not simply a copy of certain public domain works, though even a copy would have been of great value to people across the world who can't get access to printed versions of these works. Instead, Eldred was producing derivative works from these public domain works. Just as Disney turned Grimm into stories more accessible to the twentieth century, Eldred transformed Hawthorne, and many others, into a form more accessible?technically accessi- ble?today.
1121
Eldred's freedom to do this with Hawthorne's work grew from the same source as Disney?s. Hawthorne's Scarlet Letter had passed into the public domain in 1907. It was free for anyone to take without the permission of the Hawthorne estate or anyone else. Some, such as Dover Press and Penguin Classics, take works from the public domain and produce printed editions, which they sell in bookstores across the country. Others, such as Disney, take these stories and turn them into animated cartoons, sometimes successfully (Cinderella), sometimes not (The Hunchback of Notre Dame, Treasure Planet). These are all commercial publications of public domain works.
1122
The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally thousands of others. Hundreds of thousands from across the world have discovered this platform of expression and now use it to share works that are, by law, free for the taking. This has produced what we might call the ?noncommercial publishing industry,? which before the Internet was limited to people with large egos or with political or social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally.1 As I said, Eldred lives in New Hampshire. In 1998, Robert Frost?s collection of poems New Hampshire was slated to pass into the public domain. Eldred wanted to post that collection in his free public library.
1123
But Congress got in the way. As I described in chapter 10, in 1998, for the eleventh time in forty years, Congress extended the terms of existing copyrights?this time by twenty years. Eldred would not be free to add any works more recent than 1923 to his collection until 2019. Indeed, no copyrighted work would pass into the public domain until that year (and not even then, if Congress extends the term again). By contrast, in the same period, more than 1 million patents will pass into the public domain.
1124
This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in memory of the congressman and former musician Sonny Bono, who, his widow, Mary Bono, says, believed that ?copyrights should be forever.?2
1125
Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he would publish as planned, CTEA notwithstanding. But because of a second law passed in 1998, the NET (No Electronic Theft) Act, his act of publishing would make Eldred a felon?whether or not anyone complained. This was a dangerous strategy for a disabled programmer to undertake.
1126
It was here that I became involved in Eldred's battle. I was a constitutional scholar whose first passion was constitutional interpretation.
1127
And though constitutional law courses never focus upon the Progress Clause of the Constitution, it had always struck me as importantly different. As you know, the Constitution says, Congress has the power to promote the Progress of Science . . .
1128
by securing for limited Times to Authors ...exclusive Right to their ...Writings
1129
As I?ve described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause granting power to Congress simply says Congress has the power to do something?for example, to regulate ?commerce among the several states? or ?declare War.? But here, the ?something? is something quite spe- cific?to ?promote ...Progress??through means that are also specific? by ?securing? ?exclusive Rights? (i.e., copyrights) ?for limited Times.? In the past forty years, Congress has gotten into the practice of extending existing terms of copyright protection. What puzzled me about this was, if Congress has the power to extend existing terms, then the Constitution's requirement that terms be ?limited? will have no practical effect. If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids?perpetual terms ?on the installment plan,? as Professor Peter Jaszi so nicely put it.
1130
As an academic, my first response was to hit the books. I remember sitting late at the office, scouring on-line databases for any serious consideration of the question. No one had ever challenged Congress?s practice of extending existing terms. That failure may in part be why Congress seemed so untroubled in its habit. That, and the fact that the practice had become so lucrative for Congress. Congress knows that copyright owners will be willing to pay a great deal of money to see their copyright terms extended. And so Congress is quite happy to keep this gravy train going.
1131
For this is the core of the corruption in our present system of government. ?Corruption? not in the sense that representatives are bribed.
1132
Rather, ?corruption? in the sense that the system induces the beneficiaries of Congress's acts to raise and give money to Congress to induce it to act. There's only so much time; there's only so much Congress can do. Why not limit its actions to those things it must do?and those things that pay? Extending copyright terms pays.
1133
If that's not obvious to you, consider the following: Say you?re one of the very few lucky copyright owners whose copyright continues to make money one hundred years after it was created. The Estate of Robert Frost is a good example. Frost died in 1963. His poetry continues to be extraordinarily valuable. Thus the Robert Frost estate benefits greatly from any extension of copyright, since no publisher would pay the estate any money if the poems Frost wrote could be published by anyone for free.
1134
So imagine the Robert Frost estate is earning $100,000 a year from three of Frost's poems. And imagine the copyright for those poems is about to expire. You sit on the board of the Robert Frost estate.
1135
Your financial adviser comes to your board meeting with a very grim report:
1136
?Next year,? the adviser announces, ?our copyrights in works A, B, and C will expire. That means that after next year, we will no longer be receiving the annual royalty check of $100,000 from the publishers of those works.
1137
?There's a proposal in Congress, however,? she continues, ?that could change this. A few congressmen are floating a bill to extend the terms of copyright by twenty years. That bill would be extraordinarily valuable to us. So we should hope this bill passes.?
1138
?Hope?? a fellow board member says. ?Can't we be doing something about it??
1139
?Well, obviously, yes,? the adviser responds. ?We could contribute to the campaigns of a number of representatives to try to assure that they support the bill.?
1140
You hate politics. You hate contributing to campaigns. So you want to know whether this disgusting practice is worth it. ?How much would we get if this extension were passed?? you ask the adviser. ?How much is it worth??
1141
?Well,? the adviser says, ?if you?re confident that you will continue to get at least $100,000 a year from these copyrights, and you use the ?discount rate? that we use to evaluate estate investments (6 percent), then this law would be worth $1,146,000 to the estate.? You?re a bit shocked by the number, but you quickly come to the correct conclusion:
1142
?So you?re saying it would be worth it for us to pay more than $1,000,000 in campaign contributions if we were confident those contributions would assure that the bill was passed??
1143
?Absolutely,? the adviser responds. ?It is worth it to you to contribute up to the ?present value? of the income you expect from these copyrights. Which for us means over $1,000,000.?
1144
You quickly get the point?you as the member of the board and, I trust, you the reader. Each time copyrights are about to expire, every beneficiary in the position of the Robert Frost estate faces the same choice: If they can contribute to get a law passed to extend copyrights, they will benefit greatly from that extension. And so each time copyrights are about to expire, there is a massive amount of lobbying to get the copyright term extended.
1145
Thus a congressional perpetual motion machine: So long as legislation can be bought (albeit indirectly), there will be all the incentive in the world to buy further extensions of copyright.
1146
In the lobbying that led to the passage of the Sonny Bono Copyright Term Extension Act, this ?theory? about incentives was proved real. Ten of the thirteen original sponsors of the act in the House received the maximum contribution from Disney's political action committee; in the Senate, eight of the twelve sponsors received contri- butions.3 The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in the 1998 election cycle. They paid out more than $200,000 in campaign contributions.4 Disney is estimated to have contributed more than $800,000 to reelection campaigns in the 1998 cycle.5
1147
Constitutional law is not oblivious to the obvious. Or at least, it need not be. So when I was considering Eldred's complaint, this reality about the never-ending incentives to increase the copyright term was central to my thinking. In my view, a pragmatic court committed to interpreting and applying the Constitution of our framers would see that if Congress has the power to extend existing terms, then there would be no effective constitutional requirement that terms be ?limited.? If they could extend it once, they would extend it again and again and again.
1148
It was also my judgment that this Supreme Court would not allow Congress to extend existing terms. As anyone close to the Supreme Court's work knows, this Court has increasingly restricted the power of Congress when it has viewed Congress's actions as exceeding the power granted to it by the Constitution. Among constitutional scholars, the most famous example of this trend was the Supreme Court?s decision in 1995 to strike down a law that banned the possession of guns near schools.
1149
Since 1937, the Supreme Court had interpreted Congress's granted powers very broadly; so, while the Constitution grants Congress the power to regulate only ?commerce among the several states? (aka ?interstate commerce?), the Supreme Court had interpreted that power to include the power to regulate any activity that merely affected interstate commerce.
1150
As the economy grew, this standard increasingly meant that there was no limit to Congress's power to regulate, since just about every activity, when considered on a national scale, affects interstate commerce.
1151
A Constitution designed to limit Congress's power was instead interpreted to impose no limit.
1152
The Supreme Court, under Chief Justice Rehnquist's command, changed that in United States v. Lopez. The government had argued that possessing guns near schools affected interstate commerce. Guns near schools increase crime, crime lowers property values, and so on. In the oral argument, the Chief Justice asked the government whether there was any activity that would not affect interstate commerce under the reasoning the government advanced. The government said there was not; if Congress says an activity affects interstate commerce, then that activity affects interstate commerce. The Supreme Court, the government said, was not in the position to second-guess Congress.
1153
?We pause to consider the implications of the government's arguments,? the Chief Justice wrote.6 If anything Congress says is interstate commerce must therefore be considered interstate commerce, then there would be no limit to Congress's power. The decision in Lopez was reaffirmed five years later in United States v. Morrison.7
1154
If a principle were at work here, then it should apply to the Progress Clause as much as the Commerce Clause.8 And if it is applied to the Progress Clause, the principle should yield the conclusion that Congress can't extend an existing term. If Congress could extend an existing term, then there would be no ?stopping point? to Congress's power over terms, though the Constitution expressly states that there is such a limit. Thus, the same principle applied to the power to grant copyrights should entail that Congress is not allowed to extend the term of existing copyrights.
1155
If, that is, the principle announced in Lopez stood for a principle.
1156
Many believed the decision in Lopez stood for politics?a conservative Supreme Court, which believed in states' rights, using its power over Congress to advance its own personal political preferences. But I rejected that view of the Supreme Court's decision. Indeed, shortly after the decision, I wrote an article demonstrating the ?fidelity? in such an interpretation of the Constitution. The idea that the Supreme Court decides cases based upon its politics struck me as extraordinarily boring.
1157
I was not going to devote my life to teaching constitutional law if these nine Justices were going to be petty politicians.
1158
Now let's pause for a moment to make sure we understand what the argument in Eldred was not about. By insisting on the Constitu- tion's limits to copyright, obviously Eldred was not endorsing piracy.
1159
Indeed, in an obvious sense, he was fighting a kind of piracy?piracy of the public domain. When Robert Frost wrote his work and when Walt Disney created Mickey Mouse, the maximum copyright term was just fifty-six years. Because of interim changes, Frost and Disney had already enjoyed a seventy-five-year monopoly for their work. They had gotten the benefit of the bargain that the Constitution envisions: In exchange for a monopoly protected for fifty-six years, they created new work. But now these entities were using their power?expressed through the power of lobbyists' money?to get another twenty-year dollop of monopoly. That twenty-year dollop would be taken from the public domain. Eric Eldred was fighting a piracy that affects us all.
1160
Some people view the public domain with contempt. In their brief before the Supreme Court, the Nashville Songwriters Association wrote that the public domain is nothing more than ?legal piracy.?9 But it is not piracy when the law allows it; and in our constitutional system, our law requires it. Some may not like the Constitution's requirements, but that doesn't make the Constitution a pirate's charter.
1161
As we?ve seen, our constitutional system requires limits on copyright as a way to assure that copyright holders do not too heavily influence the development and distribution of our culture. Yet, as Eric Eldred discovered, we have set up a system that assures that copyright terms will be repeatedly extended, and extended, and extended. We have created the perfect storm for the public domain. Copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again.
1162
It is valuable copyrights that are responsible for terms being extended.
1163
Mickey Mouse and ?Rhapsody in Blue.? These works are too valuable for copyright owners to ignore. But the real harm to our society from copyright extensions is not that Mickey Mouse remains Dis- ney?s. Forget Mickey Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s that have continuing commercial value. The real harm of term extension comes not from these famous works. The real harm is to the works that are not famous, not commercially exploited, and no longer available as a result.
1164
If you look at the work created in the first twenty years (1923 to 1942) affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that work has any continuing commercial value. It was the copyright holders for that 2 percent who pushed the CTEA through.
1165
But the law and its effect were not limited to that 2 percent. The law extended the terms of copyright generally.10
1166
Think practically about the consequence of this extension?practi- cally, as a businessperson, and not as a lawyer eager for more legal BALANCES 221
1167
work. In 1930, 10,047 books were published. In 2000, 174 of those books were still in print. Let's say you were Brewster Kahle, and you wanted to make available to the world in your iArchive project the remaining 9,873. What would you have to do?
1168
Well,first, you?d have to determine which of the 9,873 books were still under copyright. That requires going to a library (these data are not on-line) and paging through tomes of books, cross-checking the titles and authors of the 9,873 books with the copyright registration and renewal records for works published in 1930. That will produce a list of books still under copyright.
1169
Then for the books still under copyright, you would need to locate the current copyright owners. How would you do that?
1170
Most people think that there must be a list of these copyright owners somewhere. Practical people think this way. How could there be thousands and thousands of government monopolies without there being at least a list?
1171
But there is no list. There may be a name from 1930, and then in 1959, of the person who registered the copyright. But just think practically about how impossibly difficult it would be to track down thousands of such records?especially since the person who registered is not necessarily the current owner. And we?re just talking about 1930! ?But there isn't a list of who owns property generally,? the apologists for the system respond. ?Why should there be a list of copyright owners??
1172
Well, actually, if you think about it, there are plenty of lists of who owns what property. Think about deeds on houses, or titles to cars.
1173
And where there isn't a list, the code of real space is pretty good at suggesting who the owner of a bit of property is. (A swing set in your backyard is probably yours.) So formally or informally, we have a pretty good way to know who owns what tangible property.
1174
So:You walk down a street and see a house. You can know who owns the house by looking it up in the courthouse registry. If you see acar, there is ordinarily a license plate that will link the owner to the car. If you see a bunch of children's toys sitting on the front lawn of a house, it's fairly easy to determine who owns the toys. And if you happen to see a baseball lying in a gutter on the side of the road, look around for a second for some kids playing ball. If you don't see any kids, then okay: Here's a bit of property whose owner we can't easily determine. It is the exception that proves the rule: that we ordinarily know quite well who owns what property.
1175
Compare this story to intangible property. You go into a library.
1176
The library owns the books. But who owns the copyrights? As I?ve already described, there's no list of copyright owners. There are authors? names, of course, but their copyrights could have been assigned, or passed down in an estate like Grandma's old jewelry. To know who owns what, you would have to hire a private detective. The bottom line: The owner cannot easily be located. And in a regime like ours, in which it is a felony to use such property without the property owner?s permission, the property isn't going to be used.
1177
The consequence with respect to old books is that they won't be digitized, and hence will simply rot away on shelves. But the consequence for other creative works is much more dire.
1178
Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns the copyrights for the Laurel and Hardy films. Agee is a direct beneficiary of the Bono Act. The Laurel and Hardy films were made between 1921 and 1951. Only one of these films, The Lucky Dog, is currently out of copyright. But for the CTEA, films made after 1923 would have begun entering the public domain. Because Agee controls the exclusive rights for these popular films, he makes a great deal of money. According to one estimate, ?Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo's silent films.?11
1179
Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this culture: selflessness. He argued in a brief before the Supreme Court that the Sonny Bono Copyright Term Extension Act will, if left standing, destroy a whole generation of American film.
1180
His argument is straightforward. A tiny fraction of this work has any continuing commercial value. The rest?to the extent it survives at all?sits in vaults gathering dust. It may be that some of this work not now commercially valuable will be deemed to be valuable by the owners of the vaults. For this to occur, however, the commercial benefit from the work must exceed the costs of making the work available for distribution.
1181
We can't know the benefits, but we do know a lot about the costs.
1182
For most of the history of film, the costs of restoring film were very high; digital technology has lowered these costs substantially. While it cost more than $10,000 to restore a ninety-minute black-and-white film in 1993, it can now cost as little as $100 to digitize one hour of 8 mm film.12
1183
Restoration technology is not the only cost, nor the most important.
1184
Lawyers, too, are a cost, and increasingly, a very important one. In addition to preserving the film, a distributor needs to secure the rights.
1185
And to secure the rights for a film that is under copyright, you need to locate the copyright owner.
1186
Or more accurately, owners. As we?ve seen, there isn't only a single copyright associated with a film; there are many. There isn't a single person whom you can contact about those copyrights; there are as many as can hold the rights, which turns out to be an extremely large number. Thus the costs of clearing the rights to these films is exceptionally high.
1187
?But can't you just restore the film, distribute it, and then pay the copyright owner when she shows up?? Sure, if you want to commit a felony. And even if you?re not worried about committing a felony, when she does show up, she?ll have the right to sue you for all the profits you have made. So, if you?re successful, you can be fairly confident you?ll be getting a call from someone's lawyer. And if you?re not successful, you won't make enough to cover the costs of your own lawyer. Either way, you have to talk to a lawyer. And as is too often the case, saying you have to talk to a lawyer is the same as saying you won't make any money.
1188
For some films, the benefit of releasing the film may well exceed these costs. But for the vast majority of them, there is no way the benefit would outweigh the legal costs. Thus, for the vast majority of old films, Agee argued, the film will not be restored and distributed until the copyright expires.
1189
But by the time the copyright for these films expires, the film will have expired. These films were produced on nitrate-based stock, and nitrate stock dissolves over time. They will be gone, and the metal canisters in which they are now stored will be filled with nothing more than dust.
1190
Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. For that tiny fraction, the copyright creates incentives to produce and distribute the creative work. For that tiny fraction, the copyright acts as an ?engine of free expression.?
1191
But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. As I?ve indicated, most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving.
1192
And when a creative work falls out of favor with the commercial distributors, the commercial life ends.
1193
Yet that doesn't mean the life of the creative work ends. We don?t keep libraries of books in order to compete with Barnes & Noble, and we don't have archives of films because we expect people to choose between spending Friday night watching new movies and spending Friday night watching a 1930 news documentary. The noncommercial life of culture is important and valuable?for entertainment but also, and more importantly, for knowledge. To understand who we are, and where we came from, and how we have made the mistakes that we have, we need to have access to this history.
1194
Copyrights in this context do not drive an engine of free expression.
1195
In this context, there is no need for an exclusive right. Copyrights in this context do no good.
1196
Yet, for most of our history, they also did little harm. For most of our history, when a work ended its commercial life, there was no copyright-related use that would be inhibited by an exclusive right.
1197
When a book went out of print, you could not buy it from a publisher.
1198
But you could still buy it from a used book store, and when a used book store sells it, in America, at least, there is no need to pay the copyright owner anything. Thus, the ordinary use of a book after its commercial life ended was a use that was independent of copyright law.
1199
The same was effectively true of film. Because the costs of restoring a film?the real economic costs, not the lawyer costs?were so high, it was never at all feasible to preserve or restore film. Like the remains of a great dinner, when it's over, it's over. Once a film passed out of its commercial life, it may have been archived for a bit, but that was the end of its life so long as the market didn't have more to offer.
1200
In other words, though copyright has been relatively short for most of our history, long copyrights wouldn't have mattered for the works that lost their commercial value. Long copyrights for these works would not have interfered with anything.
1201
But this situation has now changed.
1202
One crucially important consequence of the emergence of digital technologies is to enable the archive that Brewster Kahle dreams of.
1203
Digital technologies now make it possible to preserve and give access to all sorts of knowledge. Once a book goes out of print, we can now imagine digitizing it and making it available to everyone, forever. Once a film goes out of distribution, we could digitize it and make it available to everyone, forever. Digital technologies give new life to copyrighted material after it passes out of its commercial life. It is now possible to preserve and assure universal access to this knowledge and culture, whereas before it was not.
1204
And now copyright law does get in the way. Every step of producing this digital archive of our culture infringes on the exclusive right of copyright. To digitize a book is to copy it. To do that requires permission of the copyright owner. The same with music, film, or any other aspect of our culture protected by copyright. The effort to make these things available to history, or to researchers, or to those who just want to explore, is now inhibited by a set of rules that were written for a radically different context.
1205
Here is the core of the harm that comes from extending terms:
1206
Now that technology enables us to rebuild the library of Alexandria, the law gets in the way. And it doesn't get in the way for any useful copyright purpose, for the purpose of copyright is to enable the commercial market that spreads culture. No, we are talking about culture after it has lived its commercial life. In this context, copyright is serving no purpose at all related to the spread of knowledge. In this context, copyright is not an engine of free expression. Copyright is a brake.
1207
You may well ask, ?But if digital technologies lower the costs for Brewster Kahle, then they will lower the costs for Random House, too.
1208
So won't Random House do as well as Brewster Kahle in spreading culture widely??
1209
Maybe. Someday. But there is absolutely no evidence to suggest that publishers would be as complete as libraries. If Barnes & Noble offered to lend books from its stores for a low price, would that eliminate the need for libraries? Only if you think that the only role of a library is to serve what ?the market? would demand. But if you think the role of a library is bigger than this?if you think its role is to archive culture, whether there's a demand for any particular bit of that culture or not?then we can't count on the commercial market to do our library work for us.
1210
I would be the first to agree that it should do as much as it can: We should rely upon the market as much as possible to spread and enable culture. My message is absolutely not antimarket. But where we see the market is not doing the job, then we should allow nonmarket forces the BALANCES 227
1211
freedom to fill the gaps. As one researcher calculated for American culture, 94 percent of the films, books, and music produced between 1923 and 1946 is not commercially available. However much you love the commercial market, if access is a value, then 6 percent is a failure to provide that value.13
1212
In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal district court in Washington, D.C., asking the court to declare the Sonny Bono Copyright Term Extension Act unconstitutional. The two central claims that we made were (1) that extending existing terms violated the Constitution's ?limited Times? requirement, and (2) that extending terms by another twenty years violated the First Amendment.
1213
The district court dismissed our claims without even hearing an argument.
1214
A panel of the Court of Appeals for the D.C. Circuit also dismissed our claims, though after hearing an extensive argument. But that decision at least had a dissent, by one of the most conservative judges on that court. That dissent gave our claims life.
1215
Judge David Sentelle said the CTEA violated the requirement that copyrights be for ?limited Times? only. His argument was as elegant as it was simple: If Congress can extend existing terms, then there is no ?stopping point? to Congress's power under the Copyright Clause. The power to extend existing terms means Congress is not required to grant terms that are ?limited.? Thus, Judge Sentelle argued, the court had to interpret the term ?limited Times? to give it meaning. And the best interpretation, Judge Sentelle argued, would be to deny Congress the power to extend existing terms.
1216
We asked the Court of Appeals for the D.C. Circuit as a whole to hear the case. Cases are ordinarily heard in panels of three, except for important cases or cases that raise issues specific to the circuit as a whole, where the court will sit ?en banc? to hear the case.
1217
The Court of Appeals rejected our request to hear the case en banc.
1218
This time, Judge Sentelle was joined by the most liberal member of the D.C. Circuit, Judge David Tatel. Both the most conservative and the most liberal judges in the D.C. Circuit believed Congress had overstepped its bounds.
1219
It was here that most expected Eldred v. Ashcroft would die, for the Supreme Court rarely reviews any decision by a court of appeals. (It hears about one hundred cases a year, out of more than five thousand appeals.) And it practically never reviews a decision that upholds a statute when no other court has yet reviewed the statute.
1220
But in February 2002, the Supreme Court surprised the world by granting our petition to review the D.C. Circuit opinion. Argument was set for October of 2002. The summer would be spent writing briefs and preparing for argument.
1221
It is over a year later as I write these words. It is still astonishingly hard. If you know anything at all about this story, you know that we lost the appeal. And if you know something more than just the minimum, you probably think there was no way this case could have been won. After our defeat, I received literally thousands of missives by well-wishers and supporters, thanking me for my work on behalf of this noble but doomed cause. And none from this pile was more significant to me than the e-mail from my client, Eric Eldred.
1222
But my client and these friends were wrong. This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can never escape believing that my own mistake lost it.
1223
The mistake was made early, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to,Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat from its copyright-protectionist clients for supporting us. They ignored this pressure (something that few law firms today would ever do), and throughout the case, they gave it everything they could.
1224
There were three key lawyers on the case from Jones Day. Geoff Stewart was the first, but then Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer in particular had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem ?important? to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, they would never vote against ?the most powerful media companies in the world.?
1225
I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. Of course I still think it is. But the idea that the Supreme Court decides the law based on how important they believe the issues are is just wrong. It might be ?right? as in ?true,? I thought, but it is ?wrong? as in ?it just shouldn't be that way.? As I believed that any faithful interpretation of what the framers of our Constitution did would yield the conclusion that the CTEA was unconstitutional, and as I believed that any faithful interpretation of what the First Amendment means would yield the conclusion that the power to extend existing copyright terms is unconstitutional, I was not persuaded that we had to sell our case like soap.
1226
Just as a law that bans the swastika is unconstitutional not because the Court likes Nazis but because such a law would violate the Constitution, so too, in my view, would the Court decide whether Congress?s law was constitutional based on the Constitution, not based on whether they liked the values that the framers put in the Constitution.
1227
In any case, I thought, the Court must already see the danger and the harm caused by this sort of law. Why else would they grant review? There was no reason to hear the case in the Supreme Court if they weren't convinced that this regulation was harmful. So in my view, we didn't need to persuade them that this law was bad, we needed to show why it was unconstitutional.
1228
There was one way, however, in which I felt politics would matter and in which I thought a response was appropriate. I was convinced that the Court would not hear our arguments if it thought these were just the arguments of a group of lefty loons. This Supreme Court was not about to launch into a new field of judicial review if it seemed that this field of review was simply the preference of a small political minority.
1229
Although my focus in the case was not to demonstrate how bad the Sonny Bono Act was but to demonstrate that it was unconstitutional, my hope was to make this argument against a background of briefs that covered the full range of political views. To show that this claim against the CTEA was grounded in law and not politics, then, we tried to gather the widest range of credible critics?credible not because they were rich and famous, but because they, in the aggregate, demonstrated that this law was unconstitutional regardless of one's politics.
1230
The first step happened all by itself. Phyllis Schlafly's organization, Eagle Forum, had been an opponent of the CTEA from the very beginning.
1231
Mrs. Schlafly viewed the CTEA as a sellout by Congress. In November 1998, she wrote a stinging editorial attacking the Republican Congress for allowing the law to pass. As she wrote, ?Do you sometimes wonder why bills that create a financial windfall to narrow special interests slide easily through the intricate legislative process, while bills that benefit the general public seem to get bogged down?? The answer, as the editorial documented, was the power of money.
1232
Schlafly enumerated Disney's contributions to the key players on the committees. It was money, not justice, that gave Mickey Mouse twenty more years in Disney's control, Schlafly argued.
1233
In the Court of Appeals, Eagle Forum was eager to file a brief supporting our position. Their brief made the argument that became the core claim in the Supreme Court: If Congress can extend the term of existing copyrights, there is no limit to Congress's power to set terms.
1234
That strong conservative argument persuaded a strong conservative judge, Judge Sentelle.
1235
In the Supreme Court, the briefs on our side were about as diverse as it gets. They included an extraordinary historical brief by the Free Software Foundation (home of the GNU project that made GNU/ Linux possible). They included a powerful brief about the costs of uncertainty by Intel. There were two law professors' briefs, one by copyright scholars and one by First Amendment scholars. There was an exhaustive and uncontroverted brief by the world's experts in the history of the Progress Clause. And of course, there was a new brief by Eagle Forum, repeating and strengthening its arguments.
1236
Those briefs framed a legal argument. Then to support the legal argument, there were a number of powerful briefs by libraries and archives, including the Internet Archive, the American Association of Law Libraries, and the National Writers Union.
1237
But two briefs captured the policy argument best. One made the argument I?ve already described: A brief by Hal Roach Studios argued that unless the law was struck, a whole generation of American film would disappear. The other made the economic argument absolutely clear.
1238
This economists' brief was signed by seventeen economists, including five Nobel Prize winners, including Ronald Coase, James Buchanan, Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as the list of Nobel winners demonstrates, spanned the political spectrum. Their conclusions were powerful: There was no plausible claim that extending the terms of existing copyrights would do anything to increase incentives to create. Such extensions were nothing more than ?rent-seeking??the fancy term economists use to describe special-interest legislation gone wild.
1239
The same effort at balance was reflected in the legal team we gathered to write our briefs in the case. The Jones Day lawyers had been with us from the start. But when the case got to the Supreme Court, we added three lawyers to help us frame this argument to this Court:
1240
Alan Morrison, a lawyer from Public Citizen, a Washington group that had made constitutional history with a series of seminal victories in the Supreme Court defending individual rights; my colleague and dean, Kathleen Sullivan, who had argued many cases in the Court, and who had advised us early on about a First Amendment strategy; and finally, former solicitor general Charles Fried.
1241
Fried was a special victory for our side. Every other former solicitor general was hired by the other side to defend Congress's power to give media companies the special favor of extended copyright terms. Fried was the only one who turned down that lucrative assignment to stand up for something he believed in. He had been Ronald Reagan's chief lawyer in the Supreme Court. He had helped craft the line of cases that limited Congress's power in the context of the Commerce Clause. And while he had argued many positions in the Supreme Court that I personally disagreed with, his joining the cause was a vote of confidence in our argument.
1242
The government, in defending the statute, had its collection of friends, as well. Significantly, however, none of these ?friends? included historians or economists. The briefs on the other side of the case were written exclusively by major media companies, congressmen, and copyright holders.
1243
The media companies were not surprising. They had the most to gain from the law. The congressmen were not surprising either?they were defending their power and, indirectly, the gravy train of contributions such power induced. And of course it was not surprising that the copyright holders would defend the idea that they should continue to have the right to control who did what with content they wanted to control.
1244
Dr.Seuss's representatives, for example, argued that it was better for the Dr. Seuss estate to control what happened to Dr. Seuss's work? better than allowing it to fall into the public domain?because if this creativity were in the public domain, then people could use it to ?glorify drugs or to create pornography.?14 That was also the motive of the Gershwin estate, which defended its ?protection? of the work of George Gershwin. They refuse, for example, to license Porgy and Bess to anyone who refuses to use African Americans in the cast.15 That?s their view of how this part of American culture should be controlled, and they wanted this law to help them effect that control.
1245
This argument made clear a theme that is rarely noticed in this debate.
1246
When Congress decides to extend the term of existing copyrights, Congress is making a choice about which speakers it will favor.
1247
Famous and beloved copyright owners, such as the Gershwin estate and Dr. Seuss, come to Congress and say, ?Give us twenty years to control the speech about these icons of American culture. We?ll do better with them than anyone else.? Congress of course likes to reward the popular and famous by giving them what they want. But when Congress gives people an exclusive right to speak in a certain way, that's just what the First Amendment is traditionally meant to block.
1248
We argued as much in a final brief. Not only would upholding the CTEA mean that there was no limit to the power of Congress to extend copyrights?extensions that would further concentrate the market; it would also mean that there was no limit to Congress's power to play favorites, through copyright, with who has the right to speak.
1249
Between February and October, there was little I did beyond preparing for this case. Early on, as I said, I set the strategy.
1250
The Supreme Court was divided into two important camps. One camp we called ?the Conservatives.? The other we called ?the Rest.? The Conservatives included Chief Justice Rehnquist, Justice O?Connor, Justice Scalia, Justice Kennedy, and Justice Thomas. These five had been the most consistent in limiting Congress's power. They were the five who had supported the Lopez /Morrison line of cases that said that an enumerated power had to be interpreted to assure that Congress?s powers had limits.
1251
The Rest were the four Justices who had strongly opposed limits on Congress's power. These four?Justice Stevens, Justice Souter, Justice Ginsburg, and Justice Breyer?had repeatedly argued that the Constitution gives Congress broad discretion to decide how best to implement its powers.
1252
In case after case, these justices had argued that the Court's role should be one of deference. Though the votes of these four justices were the votes that I personally had most consistently agreed with, they were also the votes that we were least likely to get.
1253
In particular, the least likely was Justice Ginsburg?s. In addition to her general view about deference to Congress (except where issues of gender are involved), she had been particularly deferential in the context of intellectual property protections. She and her daughter (an excellent and well-known intellectual property scholar) were cut from the same intellectual property cloth. We expected she would agree with the writings of her daughter: that Congress had the power in this context to do as it wished, even if what Congress wished made little sense.
1254
Close behind Justice Ginsburg were two justices whom we also viewed as unlikely allies, though possible surprises. Justice Souter strongly favored deference to Congress, as did Justice Breyer. But both were also very sensitive to free speech concerns. And as we strongly believed, there was a very important free speech argument against these retrospective extensions.
1255
The only vote we could be confident about was that of Justice Stevens. History will record Justice Stevens as one of the greatest judges on this Court. His votes are consistently eclectic, which just means that no simple ideology explains where he will stand. But he had consistently argued for limits in the context of intellectual property generally. We were fairly confident he would recognize limits here.
1256
This analysis of ?the Rest? showed most clearly where our focus had to be: on the Conservatives. To win this case, we had to crack open these five and get at least a majority to go our way. Thus, the single overriding argument that animated our claim rested on the Conservatives? most important jurisprudential innovation?the argument that Judge Sentelle had relied upon in the Court of Appeals, that Congress's power must be interpreted so that its enumerated powers have limits.
1257
This then was the core of our strategy?a strategy for which I am responsible. We would get the Court to see that just as with the Lopez case, under the government's argument here, Congress would always have unlimited power to extend existing terms. If anything was plain about Congress's power under the Progress Clause, it was that this power was supposed to be ?limited.? Our aim would be to get the Court to reconcile Eldred with Lopez: If Congress's power to regulate commerce was limited, then so, too, must Congress's power to regulate copyright be limited.
1258
The argument on the government's side came down to this: Congress has done it before. It should be allowed to do it again. The government claimed that from the very beginning, Congress has been extending the term of existing copyrights. So, the government argued, the Court should not now say that practice is unconstitutional.
1259
There was some truth to the government's claim, but not much. We certainly agreed that Congress had extended existing terms in 1831 and in 1909. And of course, in 1962, Congress began extending existing terms regularly?eleven times in forty years.
1260
But this ?consistency? should be kept in perspective. Congress extended existing terms once in the first hundred years of the Republic.
1261
It then extended existing terms once again in the next fifty. Those rare extensions are in contrast to the now regular practice of extending existing terms. Whatever restraint Congress had had in the past, that restraint was now gone. Congress was now in a cycle of extensions; there was no reason to expect that cycle would end. This Court had not hesitated to intervene where Congress was in a similar cycle of extension.
1262
There was no reason it couldn't intervene here.
1263
Oral argument was scheduled for the first week in October. I arrived in D.C. two weeks before the argument. During those two weeks, I was repeatedly ?mooted? by lawyers who had volunteered to help in the case. Such ?moots? are basically practice rounds, where wannabe justices fire questions at wannabe winners.
1264
I was convinced that to win, I had to keep the Court focused on a single point: that if this extension is permitted, then there is no limit to the power to set terms. Going with the government would mean that terms would be effectively unlimited; going with us would give Congress a clear line to follow: Don't extend existing terms. The moots were an effective practice; I found ways to take every question back to this central idea.
1265
One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had served in the Reagan Justice Department with Solicitor General Charles Fried. He had argued many cases before the Supreme Court. And in his review of the moot, he let his concern speak:
1266
?I'm just afraid that unless they really see the harm, they won't be willing to upset this practice that the government says has been a consistent practice for two hundred years. You have to make them see the harm?passionately get them to see the harm. For if they don't see that, then we haven't any chance of winning.? He may have argued many cases before this Court, I thought, but he didn't understand its soul. As a clerk, I had seen the Justices do the right thing?not because of politics but because it was right. As a law professor, I had spent my life teaching my students that this Court does the right thing?not because of politics but because it is right. As I listened to Ayer's plea for passion in pressing politics, I understood his point, and I rejected it. Our argument was right. That was enough.
1267
Let the politicians learn to see that it was also good.
1268
The night before the argument, a line of people began to form in front of the Supreme Court. The case had become a focus of the press and of the movement to free culture. Hundreds stood in line for the chance to see the proceedings. Scores spent the night on the Supreme Court steps so that they would be assured a seat.
1269
Not everyone has to wait in line. People who know the Justices can ask for seats they control. (I asked Justice Scalia's chambers for seats for my parents, for example.) Members of the Supreme Court bar can get a seat in a special section reserved for them. And senators and congressmen have a special place where they get to sit, too. And finally, of course, the press has a gallery, as do clerks working for the Justices on the Court. As we entered that morning, there was no place that was not taken. This was an argument about intellectual property law, yet the halls were filled. As I walked in to take my seat at the front of the Court, I saw my parents sitting on the left. As I sat down at the table, I saw Jack Valenti sitting in the special section ordinarily reserved for family of the Justices.
1270
When the Chief Justice called me to begin my argument, I began where I intended to stay: on the question of the limits on Congress?s power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit.
1271
Justice O?Connor stopped me within one minute of my opening.
1272
The history was bothering her.
1273
justice o?connor:Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act.
1274
She was quite willing to concede ?that this flies directly in the face of what the framers had in mind.? But my response again and again was to emphasize limits on Congress's power.
1275
mr. lessig:Well, if it flies in the face of what the framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes.
1276
There were two points in this argument when I should have seen where the Court was going. The first was a question by Justice Kennedy, who observed,
1277
justice kennedy:Well, I suppose implicit in the argument that the ?76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts.
1278
I just don't see any empirical evidence for that.
1279
Here follows my clear mistake. Like a professor correcting a student, I answered, mr. lessig: Justice, we are not making an empirical claim at all.
1280
Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.
1281
That was a correct answer, but it wasn't the right answer. The right answer was instead that there was an obvious and profound harm. Any number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss.
1282
The second came from the Chief, for whom the whole case had been crafted. For the Chief Justice had crafted the Lopez ruling, and we hoped that he would see this case as its second cousin.
1283
It was clear a second into his question that he wasn't at all sympathetic.
1284
To him, we were a bunch of anarchists. As he asked:
1285
chief justice:Well, but you want more than that. You want the right to copy verbatim other people's books, don't you?
1286
mr. lessig:We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified under ordinary First Amendment analysis or under a proper reading of the limits built into the Copyright Clause.
1287
Things went better for us when the government gave its argument; for now the Court picked up on the core of our claim. As Justice Scalia asked Solicitor General Olson,
1288
justice scalia:You say that the functional equivalent of an unlimited time would be a violation [of the Constitution], but that?s precisely the argument that's being made by petitioners here, that a limited time which is extendable is the functional equivalent of an unlimited time.
1289
When Olson was finished, it was my turn to give a closing rebuttal.
1290
Olson's flailing had revived my anger. But my anger still was directed to the academic, not the practical. The government was arguing as if this were the first case ever to consider limits on Congress's Copyright and Patent Clause power. Ever the professor and not the advocate, I closed by pointing out the long history of the Court imposing limits on Congress's power in the name of the Copyright and Patent Clause? indeed, the very first case striking a law of Congress as exceeding a specific enumerated power was based upon the Copyright and Patent Clause. All true. But it wasn't going to move the Court to my side.
1291
As I left the court that day, I knew there were a hundred points I wished I could remake. There were a hundred questions I wished I had answered differently. But one way of thinking about this case left me optimistic.
1292
The government had been asked over and over again, what is the limit? Over and over again, it had answered there is no limit. This was precisely the answer I wanted the Court to hear. For I could not imagine how the Court could understand that the government believed Congress's power was unlimited under the terms of the Copyright Clause, and sustain the government's argument. The solicitor general had made my argument for me. No matter how often I tried, Icould not understand how the Court could find that Congress?s power under the Commerce Clause was limited, but under the Copyright Clause, unlimited. In those rare moments when I let myself believe that we may have prevailed, it was because I felt this Court?in particular, the Conservatives?would feel itself constrained by the rule of law that it had established elsewhere.
1293
The morning of January 15, 2003, I was five minutes late to the office and missed the 7:00 A.M.call from the Supreme Court clerk. Listening to the message, I could tell in an instant that she had bad news to report. The Supreme Court had affirmed the decision of the Court of Appeals. Seven justices had voted in the majority. There were two dissents.
1294
A few seconds later, the opinions arrived by e-mail. I took the phone off the hook, posted an announcement to our blog, and sat down to see where I had been wrong in my reasoning.
1295
My reasoning. Here was a case that pitted all the money in the world against reasoning. And here was the last na?ve law professor, scouring the pages, looking for reasoning.
1296
I first scoured the opinion, looking for how the Court would distinguish the principle in this case from the principle in Lopez. The argument was nowhere to be found. The case was not even cited. The argument that was the core argument of our case did not even appear in the Court's opinion.
1297
Justice Ginsburg simply ignored the enumerated powers argument.
1298
Consistent with her view that Congress's power was not limited generally, she had found Congress's power not limited here.
1299
Her opinion was perfectly reasonable?for her, and for Justice Soute