Introduction
47
On December 17,1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
heavier-than-air, self-propelled vehicle could fly. The moment was electric
and its importance widely understood. Almost immediately, there
was an explosion of interest in this newfound technology of manned
flight, and a gaggle of innovators began to build upon it.
48
At the time the Wright brothers invented the airplane, American
law held that a property owner presumptively owned not just the surface
of his land, but all the land below, down to the center of the earth,
and all the space above, to "an indefinite extent, upwards."1 For many
years, scholars had puzzled about how best to interpret the idea that
rights in land ran to the heavens. Did that mean that you owned the
stars? Could you prosecute geese for their willful and regular trespass?
Then came airplanes, and for the first time, this principle of American
law"deep within the foundations of our tradition, and acknowledged
by the most important legal thinkers of our past"mattered. If
my land reaches to the heavens, what happens when United flies over
my field? Do I have the right to banish it from my property? Am I allowed
to enter into an exclusive license with Delta Airlines? Could we
set up an auction to decide how much these rights are worth?
In 1945, these questions became a federal case. When North Carolina
farmers Thomas Lee and Tinie Causby started losing chickens
because of low-flying military aircraft (the terrified chickens apparently
flew into the barn walls and died), the Causbys filed a lawsuit saying
that the government was trespassing on their land. The airplanes,
of course, never touched the surface of the Causbys' land. But if, as
Blackstone, Kent, and Coke had said, their land reached to "an indefinite
extent, upwards," then the government was trespassing on their
property, and the Causbys wanted it to stop.
49
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
heavens, then Congress's declaration could well have been an unconstitutional
"taking" of property without compensation. The Court acknowledged
that "it is ancient doctrine that common law ownership of
the land extended to the periphery of the universe." But Justice Douglas
had no patience for ancient doctrine. In a single paragraph, hundreds of
years of property law were erased. As he wrote for the Court,
[The] doctrine has no place in the modern world. The air is a
public highway, as Congress has declared. Were that not true,
every transcontinental flight would subject the operator to countless
trespass suits. Common sense revolts at the idea. To recognize
such private claims to the airspace would clog these highways, seriously
interfere with their control and development in the public
interest, and transfer into private ownership that to which only
the public has a just claim.2
50
"Common sense revolts at the idea."
51
This is how the law usually works. Not often this abruptly or impatiently,
but eventually, this is how it works. It was Douglas's style not to
dither. Other justices would have blathered on for pages to reach the
conclusion that Douglas holds in a single line: "Common sense revolts
at the idea." But whether it takes pages or a few words, it is the special
genius of a common law system, as ours is, that the law adjusts to the
technologies of the time. And as it adjusts, it changes. Ideas that were
as solid as rock in one age crumble in another.
52
Or at least, this is how things happen when there's no one powerful
on the other side of the change. The Causbys were just farmers. And
though there were no doubt many like them who were upset by the
growing traffic in the air (though one hopes not many chickens flew
themselves into walls), the Causbys of the world would find it very
hard to unite and stop the idea, and the technology, that the Wright
brothers had birthed. The Wright brothers spat airplanes into the
technological meme pool; the idea then spread like a virus in a chicken
coop; farmers like the Causbys found themselves surrounded by "what
seemed reasonable" given the technology that the Wrights had produced.
53
They could stand on their farms, dead chickens in hand, and
shake their fists at these newfangled technologies all they wanted.
54
They could call their representatives or even file a lawsuit. But in the
end, the force of what seems "obvious" to everyone else"the power of
"common sense"?would prevail. Their "private interest" would not be
allowed to defeat an obvious public gain.
55
Edwin Howard Armstrong is one of America's forgotten inventor
geniuses. He came to the great American inventor scene just after the
titans Thomas Edison and Alexander Graham Bell. But his work in
the area of radio technology was perhaps the most important of any
single inventor in the first fifty years of radio. He was better educated
than Michael Faraday, who as a bookbinder's apprentice had discovered
electric induction in 1831. But he had the same intuition about
how the world of radio worked, and on at least three occasions, Armstrong
invented profoundly important technologies that advanced our
understanding of radio.
56
On the day after Christmas, 1933, four patents were issued to Armstrong
for his most significant invention?FM radio. Until then, consumer
radio had been amplitude-modulated (AM) radio. The theorists
of the day had said that frequency-modulated (FM) radio could never
work. They were right about FM radio in a narrow band of spectrum.
57
But Armstrong discovered that frequency-modulated radio in a wide
band of spectrum would deliver an astonishing fidelity of sound, with
much less transmitter power and static.
58
On November 5, 1935, he demonstrated the technology at a meeting
of the Institute of Radio Engineers at the Empire State Building in
New York City. He tuned his radio dial across a range of AM stations,
until the radio locked on a broadcast that he had arranged from seventeen
miles away. The radio fell totally silent, as if dead, and then with a
clarity no one else in that room had ever heard from an electrical device,
it produced the sound of an announcer's voice: "This is amateur
station W2AG at Yonkers, New York, operating on frequency modulation
at two and a half meters."
59
The audience was hearing something no one had thought possible:
60
A glass of water was poured before the microphone in Yonkers; it
sounded like a glass of water being poured. ...A paper was
crumpled and torn; it sounded like paper and not like a crackling
forest fire. ...Sousa marches were played from records and a piano
solo and guitar number were performed. ... The music was
projected with a live-ness rarely if ever heard before from a radio
"music box."3
61
As our own common sense tells us, Armstrong had discovered a
vastly superior radio technology. But at the time of his invention, Armstrong
was working for RCA. RCA was the dominant player in the
then dominant AM radio market. By 1935, there were a thousand radio
stations across the United States, but the stations in large cities were all
owned by a handful of networks.
62
RCA's president, David Sarnoff, a friend of Armstrong's, was eager
that Armstrong discover a way to remove static from AM radio. So
Sarnoff was quite excited when Armstrong told him he had a device
that removed static from "radio." But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
63
I thought Armstrong would invent some kind of a filter to remove
static from our AM radio. I didn't think he?d start a revolution?
start up a whole damn new industry to compete with RCA.4
64
Armstrong's invention threatened RCA's AM empire, so the company
launched a campaign to smother FM radio. While FM may have
been a superior technology, Sarnoff was a superior tactician. As one author
described,
The forces for FM, largely engineering, could not overcome the
weight of strategy devised by the sales, patent, and legal offices
to subdue this threat to corporate position. For FM, if allowed to
develop unrestrained, posed ...a complete reordering of radio
power . . . and the eventual overthrow of the carefully restricted
AM system on which RCA had grown to power.5
65
RCA at first kept the technology in house, insisting that further
tests were needed. When, after two years of testing, Armstrong grew
impatient, RCA began to use its power with the government to stall
FM radio's deployment generally. In 1936, RCA hired the former head
of the FCC and assigned him the task of assuring that the FCC assign
spectrum in a way that would castrate FM?principally by moving FM
radio to a different band of spectrum. At first, these efforts failed. But
when Armstrong and the nation were distracted by World War II,
RCA's work began to be more successful. Soon after the war ended, the
FCC announced a set of policies that would have one clear effect: FM
radio would be crippled. As Lawrence Lessing described it,
The series of body blows that FM radio received right after the
war, in a series of rulings manipulated through the FCC by the
big radio interests, were almost incredible in their force and devi-
ousness.6
66
To make room in the spectrum for RCA's latest gamble, television,
FM radio users were to be moved to a totally new spectrum band. The
power of FM radio stations was also cut, meaning FM could no longer
be used to beam programs from one part of the country to another.
67
(This change was strongly supported by AT&T, because the loss of
FM relaying stations would mean radio stations would have to buy
wired links from AT&T.) The spread of FM radio was thus choked, at
least temporarily.
68
Armstrong resisted RCA's efforts. In response, RCA resisted Arm-
strong's patents. After incorporating FM technology into the emerging
standard for television, RCA declared the patents invalid?baselessly,
and almost fifteen years after they were issued. It thus refused to pay
him royalties. For six years, Armstrong fought an expensive war of litigation
to defend the patents. Finally, just as the patents expired, RCA
offered a settlement so low that it would not even cover Armstrong?s
lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong
wrote a short note to his wife and then stepped out of a thirteenthstory
window to his death.
69
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From the
beginning, government and government agencies have been subject
to capture. They are more likely captured when a powerful interest is
threatened by either a legal or technical change. That powerful interest
too often exerts its influence within the government to get the government
to protect it. The rhetoric of this protection is of course always
public spirited; the reality is something different. Ideas that were as
solid as rock in one age, but that, left to themselves, would crumble in
another, are sustained through this subtle corruption of our political
process. RCA had what the Causbys did not: the power to stifle the effect
of technological change.
70
There's no single inventor of the Internet. Nor is there any good
date upon which to mark its birth. Yet in a very short time, the Internet
has become part of ordinary American life. According to the Pew
Internet and American Life Project, 58 percent of Americans had access
to the Internet in 2002, up from 49 percent two years before.7
That number could well exceed two thirds of the nation by the end
of 2004.
71
As the Internet has been integrated into ordinary life, it has
changed things. Some of these changes are technical?the Internet has
made communication faster, it has lowered the cost of gathering data,
and so on. These technical changes are not the focus of this book. They
are important. They are not well understood. But they are the sort of
thing that would simply go away if we all just switched the Internet off.
72
They don't affect people who don't use the Internet, or at least they
don't affect them directly. They are the proper subject of a book about
the Internet. But this is not a book about the Internet.
73
Instead, this book is about an effect of the Internet beyond the Internet
itself: an effect upon how culture is made. My claim is that the
Internet has induced an important and unrecognized change in that
process. That change will radically transform a tradition that is as old as
the Republic itself. Most, if they recognized this change, would reject
it. Yet most don't even see the change that the Internet has introduced.
74
We can glimpse a sense of this change by distinguishing between
commercial and noncommercial culture, and by mapping the law's regulation
of each. By "commercial culture" I mean that part of our culture
that is produced and sold or produced to be sold. By "noncommercial
culture" I mean all the rest. When old men sat around parks or on
street corners telling stories that kids and others consumed, that was
noncommercial culture. When Noah Webster published his "Reader,"
or Joel Barlow his poetry, that was commercial culture.
75
At the beginning of our history, and for just about the whole of our
tradition, noncommercial culture was essentially unregulated. Of
course, if your stories were lewd, or if your song disturbed the peace,
then the law might intervene. But the law was never directly concerned
with the creation or spread of this form of culture, and it left this culture
"free." The ordinary ways in which ordinary individuals shared and
transformed their culture?telling stories, reenacting scenes from plays
or TV, participating in fan clubs, sharing music, making tapes?were
left alone by the law.
76
The focus of the law was on commercial creativity. At first slightly,
then quite extensively, the law protected the incentives of creators by
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial marketplace.8 This is also, of
course, an important part of creativity and culture, and it has become
an increasingly important part in America. But in no sense was it dominant
within our tradition. It was instead just one part, a controlled
part, balanced with the free.
77
This rough divide between the free and the controlled has now
been erased.9 The Internet has set the stage for this erasure and,
pushed by big media, the law has now affected it. For the first time in
our tradition, the ordinary ways in which individuals create and share
culture fall within the reach of the regulation of the law, which has expanded
to draw within its control a vast amount of culture and creativity
that it never reached before. The technology that preserved the
balance of our history"between uses of our culture that were free and
uses of our culture that were only upon permission"has been undone.
78
The consequence is that we are less and less a free culture, more and
more a permission culture.
79
This change gets justified as necessary to protect commercial creativity.
80
And indeed, protectionism is precisely its motivation. But the
protectionism that justifies the changes that I will describe below is not
the limited and balanced sort that has defined the law in the past. This
is not a protectionism to protect artists. It is instead a protectionism
to protect certain forms of business. Corporations threatened by the
potential of the Internet to change the way both commercial and
noncommercial culture are made and shared have united to induce
lawmakers to use the law to protect them. It is the story of RCA and
Armstrong; it is the dream of the Causbys.
81
For the Internet has unleashed an extraordinary possibility for many
to participate in the process of building and cultivating a culture that
reaches far beyond local boundaries. That power has changed the marketplace
for making and cultivating culture generally, and that change
in turn threatens established content industries. The Internet is thus to
the industries that built and distributed content in the twentieth century
what FM radio was to AM radio, or what the truck was to the
railroad industry of the nineteenth century: the beginning of the end,
or at least a substantial transformation. Digital technologies, tied to the
Internet, could produce a vastly more competitive and vibrant market
for building and cultivating culture; that market could include a much
wider and more diverse range of creators; those creators could produce
and distribute a much more vibrant range of creativity; and depending
upon a few important factors, those creators could earn more on average
from this system than creators do today?all so long as the RCAs of our
day don't use the law to protect themselves against this competition.
82
Yet, as I argue in the pages that follow, that is precisely what is happening
in our culture today. These modern-day equivalents of the early
twentieth-century radio or nineteenth-century railroads are using their
power to get the law to protect them against this new, more efficient,
more vibrant technology for building culture. They are succeeding in
their plan to remake the Internet before the Internet remakes them.
83
It doesn't seem this way to many. The battles over copyright and the
Internet seem remote to most. To the few who follow them, they seem
mainly about a much simpler brace of questions?whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
has been waged against the technologies of the Internet?what Motion
Picture Association of America (MPAA) president Jack Valenti
calls his "own terrorist war"10?has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
war, most think that we need only decide whether we?re for property or
against it.
84
If those really were the choices, then I would be with Jack Valenti
and the content industry. I, too, am a believer in property, and especially
in the importance of what Mr. Valenti nicely calls "creative property."
I believe that "piracy" is wrong, and that the law, properly tuned,
should punish "piracy," whether on or off the Internet.
85
But those simple beliefs mask a much more fundamental question
and a much more dramatic change. My fear is that unless we come to see
this change, the war to rid the world of Internet "pirates" will also rid our
culture of values that have been integral to our tradition from the start.
86
These values built a tradition that, for at least the first 180 years of
our Republic, guaranteed creators the right to build freely upon their
past, and protected creators and innovators from either state or private
control. The First Amendment protected creators against state control.
87
And as Professor Neil Netanel powerfully argues,11 copyright law, properly
balanced, protected creators against private control. Our tradition
was thus neither Soviet nor the tradition of patrons. It instead carved out
a wide berth within which creators could cultivate and extend our culture.
88
Yet the law's response to the Internet, when tied to changes in the
technology of the Internet itself, has massively increased the effective
regulation of creativity in America. To build upon or critique the culture
around us one must ask, Oliver Twist?like, for permission first.
89
Permission is, of course, often granted?but it is not often granted to
the critical or the independent. We have built a kind of cultural nobility;
those within the noble class live easily; those outside it don?t. But it
is nobility of any form that is alien to our tradition.
90
The story that follows is about this war. Is it not about the "centrality
of technology" to ordinary life. I don't believe in gods, digital or
otherwise. Nor is it an effort to demonize any individual or group, for
neither do I believe in a devil, corporate or otherwise. It is not a morality
tale. Nor is it a call to jihad against an industry.
91
It is instead an effort to understand a hopelessly destructive war inspired
by the technologies of the Internet but reaching far beyond its
code. And by understanding this battle, it is an effort to map peace.
92
There is no good reason for the current struggle around Internet technologies
to continue. There will be great harm to our tradition and
culture if it is allowed to continue unchecked. We must come to understand
the source of this war. We must resolve it soon.
93
Like the Causbys' battle, this war is, in part, about "property."
The property of this war is not as tangible as the Causbys?, and no
innocent chicken has yet to lose its life. Yet the ideas surrounding this
"property" are as obvious to most as the Causbys' claim about the sacredness
of their farm was to them. We are the Causbys. Most of us
take for granted the extraordinarily powerful claims that the owners of
"intellectual property" now assert. Most of us, like the Causbys, treat
these claims as obvious. And hence we, like the Causbys, object when
a new technology interferes with this property. It is as plain to us as it
was to them that the new technologies of the Internet are "trespassing"
upon legitimate claims of "property." It is as plain to us as it was to
them that the law should intervene to stop this trespass.
94
And thus, when geeks and technologists defend their Armstrong or
Wright brothers technology, most of us are simply unsympathetic. Common
sense does not revolt. Unlike in the case of the unlucky Causbys,
common sense is on the side of the property owners in this war. Unlike
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
95
My hope is to push this common sense along. I have become increasingly
amazed by the power of this idea of intellectual property
and, more importantly, its power to disable critical thought by policy
makers and citizens. There has never been a time in our history when
more of our "culture" was as "owned" as it is now. And yet there has
never been a time when the concentration of power to control the uses
of culture has been as unquestioningly accepted as it is now.
96
The puzzle is, Why?
97
Is it because we have come to understand a truth about the value
and importance of absolute property over ideas and culture? Is it because
we have discovered that our tradition of rejecting such an absolute
claim was wrong?
98
Or is it because the idea of absolute property over ideas and culture
benefits the RCAs of our time and fits our own unreflective intuitions?
Is the radical shift away from our tradition of free culture an instance
of America correcting a mistake from its past, as we did after a bloody
war with slavery, and as we are slowly doing with inequality? Or is the
radical shift away from our tradition of free culture yet another example
of a political system captured by a few powerful special interests?
Does common sense lead to the extremes on this question because
common sense actually believes in these extremes? Or does common
sense stand silent in the face of these extremes because, as with Armstrong
versus RCA, the more powerful side has ensured that it has the
more powerful view?
99
I don't mean to be mysterious. My own views are resolved. I believe
it was right for common sense to revolt against the extremism of the
Causbys. I believe it would be right for common sense to revolt against
the extreme claims made today on behalf of "intellectual property."
What the law demands today is increasingly as silly as a sheriff arresting
an airplane for trespass. But the consequences of this silliness will
be much more profound.
100
The struggle that rages just now centers on two ideas: "piracy" and
"property." My aim in this book's next two parts is to explore these two
ideas.
101
My method is not the usual method of an academic. I don't want to
plunge you into a complex argument, buttressed with references to obscure
French theorists?however natural that is for the weird sort we
academics have become. Instead I begin in each part with a collection
of stories that set a context within which these apparently simple ideas
can be more fully understood.
102
The two sections set up the core claim of this book: that while the
Internet has indeed produced something fantastic and new, our government,
pushed by big media to respond to this "something new," is
destroying something very old. Rather than understanding the changes
the Internet might permit, and rather than taking time to let "common
sense" resolve how best to respond, we are allowing those most threatened
by the changes to use their power to change the law?and more
importantly, to use their power to change something fundamental about
who we have always been.
103
We allow this, I believe, not because it is right, and not because
most of us really believe in these changes. We allow it because the interests
most threatened are among the most powerful players in our
depressingly compromised process of making law. This book is the
story of one more consequence of this form of corruption?a consequence
to which most of us remain oblivious.
piracy
104
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.
105
As Lord Mansfield wrote in a case that extended the reach of
English copyright law to include sheet music,
106
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
107
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.
108
This efficiency does not respect the traditional lines of copyright.
109
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!
110
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.
111
The idea goes something like this:
112
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.
113
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.
114
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.
115
It has never taken hold within our law.
116
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.
117
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.
118
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.
119
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.
120
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
121
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.
122
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.
123
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.
124
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.
125
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.
126
The synchronization was pretty close.
127
The effect on our little audience was nothing less than electric.
128
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
129
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."
130
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.
131
And quite often, Disney's great genius, his spark of creativity, was built
upon the work of others.
132
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.
133
That genius was Buster Keaton. The film was Steamboat Bill, Jr.
134
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.
135
The film was classic Keaton?wildly popular and among the best of its
genre.
136
Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
137
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.
138
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.
139
Disney added to the work of others before him, creating something
new out of something just barely old.
140
Sometimes this borrowing was slight. Sometimes it was significant.
141
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.
142
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.
143
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.
144
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.
145
At the end of a copyright term, a work passes into the public domain.
146
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.
147
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.
148
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.
149
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.
150
Consider, for example, a form of creativity that seems strange to
many Americans but that is inescapable within Japanese culture:
151
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.
152
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.
153
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.
154
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.
155
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.
156
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.
157
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
158
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."
159
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
160
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."
161
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?
162
Let's pause for a moment.
163
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.
164
We live in a world that celebrates "property." I am one of those celebrants.
165
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.
166
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.
167
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.
168
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.
169
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.
170
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.
171
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.
172
Creators here and everywhere are always and at all times building
upon the creativity that went before and that surrounds them now.
173
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.
174
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?
175
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
176
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.)
177
Yet despite high prices, the demand for daguerreotypes was strong.
178
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.
179
The technological change that made mass photography possible
didn't happen until 1888, and was the creation of a single man. George
180
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.
181
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:
182
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
183
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.
184
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
185
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
186
In this way, the Kodak camera and film were technologies of expression.
187
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.
188
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.
189
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
190
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.
191
On the other side was an argument that should be familiar, as well.
192
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.
193
(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.
194
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.
195
(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)
196
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.
197
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.
198
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.
199
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.
200
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.
201
By doing, they think. By tinkering, they learn.
202
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.
203
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."
204
"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."
205
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.
206
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.
207
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.
208
It took filmmaking a generation before it could do these things well.
209
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.
210
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.
211
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
212
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.
213
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.
214
The aim is not to improve the profession of filmmaking at all.
215
Instead, as Daley explained,
216
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.
217
?Read-only.? Passive recipients of culture produced elsewhere.
218
Couch potatoes. Consumers. This is the world of media from the
twentieth century.
219
The twenty-first century could be different. This is the crucial point:
220
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
221
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.
222
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.
223
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.
224
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.
225
?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.
226
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.?
227
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
228
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.
229
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.?
230
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.
231
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.
232
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.
233
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.
234
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.
235
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.
236
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.
237
But in the United States, blogs have taken on a very different character.
238
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.
239
They are arguably the most important form of unchoreographed public
discourse that we have.
240
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.
241
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.
242
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.
243
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.
244
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
245
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.
246
More bizarrely, there is generally not even permission for it to occur.
247
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.
248
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.
249
But beyond architecture, blogs also have solved the problem of
norms. There's no norm (yet) in blog space not to talk about politics.
250
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.
251
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.
252
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
253
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.
254
If they lose readers, they lose revenue. Like sharks, they must move on.
255
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.
256
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.
257
?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.?
258
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.?)
259
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.
260
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.
261
There is a lot that must mature before this space has its mature effect.
262
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.?
263
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.
264
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.
265
The writing of ideas, arguments, and criticism improves democracy.
266
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.
267
John Seely Brown is the chief scientist of the Xerox Corporation.
268
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.
269
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.
270
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.
271
This opportunity creates a ?completely new kind of learning platform,?
as Brown describes. ?As soon as you start doing that, you . . .
272
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.?
273
In this process, ?the concrete things you tinker with are abstract.
274
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.
275
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.?
276
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.
277
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.
278
The law and, increasingly, technology interfere with a freedom that
technology, and curiosity, would otherwise ensure.
279
These restrictions have become the focus of researchers and scholars.
280
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.
281
?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.?
282
?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.?
283
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.
284
?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
285
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled
as a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
286
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.
287
RPI is one of America's foremost technological research institutions.
288
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.
289
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.
290
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.
291
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.
292
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.
293
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.
294
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.
295
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.
296
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.
297
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.
298
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.
299
A few hours later, Jesse was served with papers from the suit.
300
As he read these papers and watched the news reports about them, he
was increasingly astonished.
301
?It was absurd,? he told me. ?I don't think I did anything wrong....
302
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.
303
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.
304
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:
305
huge demands for ?damages? that the RIAA claimed it was entitled to.
306
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
307
Jesse called his parents. They were supportive but a bit frightened.
308
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.
309
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.
310
Jesse's family was outraged at these claims. They wanted to fight.
311
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.
312
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
313
The recording industry insists this is a matter of law and morality.
314
Let's put the law aside for a moment and think about the morality.
315
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.
316
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
317
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:
318
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.
319
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"
320
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
321
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.
322
Edison formed the MPPC to exercise the rights this creative property
gave him, and the MPPC was serious about the control it demanded.
323
As one commentator tells one part of the story,
324
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.
325
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
326
The Napsters of those days, the ?independents,? were companies like
Fox. And no less than today, these independents were vigorously resisted.
327
?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.
328
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
329
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.
330
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.
331
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.
332
But it wasn't total