Intellectual property legislation and other resources are listed and linked below.
Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS)
Berne Convention for the Protection of Literary and Artistic Works (Bahamas, July 10, 1973)
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) (summary)
Universal Copyright Convention as revised at Paris on 24 July 1971
WIPO Copyright Treaty
WIPO Performances and Phonograms Treaty (WPPT)
Copyright Act of 1998 (Chapter 323)
International Intellectual Property Alliance – 2003 Special 301 Report (Bahamas)
Registrar General’s Department, Ministry of Financial Services and Investment, Government of the Bahamas (Nassau)
New Copyright Act Has Vast Potential Economic Impact, from the Fig Tree
Supplemental Materials – Additional Resources
World Intellectual Property Organization (WIPO), Copyright FAQs
Association of University Technology Managers (AUTM), Technology Transfer FAQs
Harvard Medical School Authorship Guidelines
Harvard Medical School Office of Technology Licensing & Industry Sponsored Research, Statement of Policy in Regards to Inventions, Patents and Copyright
The Future of CopyrightFree Culture
Copyright (c) 2005 Texas Law Review
Texas Law Review
83 Tex. L. Rev. 1137
LENGTH: 18438 words
BOOK REVIEW: The Future of CopyrightFree Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. By Lawrence Lessig.+
SEC-NOTE-1: New York: The Penguin Press, 2004. Pp. xvii, 346. $ 24.95.
+ C. Wendell and Edith M. Carlsmith Professor of Law, Stanford Law School.
NAME: Reviewed by Lawrence B. Solum*
* Copyright © 2005 Lawrence A. Solum. Professor of Law, University of San Diego. Readers familiar with my traditional academic work are likely to notice that this Review is just a little bit unusual, departing in ways large and small from the rather plodding, methodical, and analytic stuff that I usually write. I am grateful to the editors of the Texas Law Review for convincing me to turn a series of blog (or weblog) posts on Legal Theory Blog into this Review. For the originals, see Lawrence B. Solum, Legal Theory Bookclub: Free Culture by Lawrence Lessig, http://lsolum.blogspot.com (including link on sidebar, “Legal Theory Bookclub: Lessig’s Free Culture,” with hyperlink to first of eight posts). Permission is hereby granted for noncommercial reproduction of this Review in whole or in part for educational or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation to this publication of the Review, and this copyright notice and grant of permission be included in the copies.
… Peer-to-peer (P2P) filesharing systems – Napster, Gnutella, KaZaA, Grokster, and Freenet – are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. … Part III takes a look at Lessig’s indictment of the big media companies and the power that copyright law gives them over public culture. … Free Culture recounts the tale of Armstrong’s battle with RCA, which attempted to suppress Armstrong’s superior technology in order to protect its market position in AM radio. … From the fact that copying is not the moral equivalent of piracy, it does not follow that copyright laws are unjustified. … D. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. … For works under copyright, the copyright owner certainly does have the power – up to the limits of the copyright law. …
HIGHLIGHT: Somebody once said: “Information wants to be free.” n1 – Roger Clarke There’s no such thing as a free lunch. n2 – Alvin Hansen
I. Introduction: Idea Slingers and Norm Entrepreneurs
Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems – Napster, Gnutella, KaZaA, Grokster, and Freenet n3 – are mere [*1138] symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony “substantial noninfringing use” defense. n4 The digital cassette recorder begat the Audio Home Recording Act. n5 The internet begat the Digital Millennium Copyright Act. n6 Napster begat Napster. n7 We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures n8 shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away.
In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights. n9 Neil Netanel, n10 William Fisher, n11 and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time. n12 Mark Lemley is debunking ex post justifications for intellectual property. n13 No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the “Induce Act,” targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content. n14
[*1139] In a very real sense, we are in the midst of an intellectual, moral, and legal struggle over the future of copyright. Intellectually, the “copyfight,” n15 the struggle over the future of the rights to duplicate and transform information, takes place in the realm of ideas – between the covers of law reviews, in position papers, on editorial pages, and online in the blogosphere. n16 Legally, major skirmishes have already occurred in the federal courts, from the United States Supreme Court’s decision to uphold the Sonny Bono Copyright Term Extension Act (CTEA) n17 in Eldred v. Ashcroft n18 to the recent split between the Seventh n19 and Ninth Circuits n20 over the question whether P2P filesharing services are contributory copyright infringers. Heated copyfighting takes place in the back rooms of Congress and elsewhere inside the beltway, where the consumer electronic industry recently refused to come to terms with the RIAA and the MPAA over the terms of the Induce Act. n21 Last, but not least, the copyfight includes a moral and ideological battle for the hearts and minds of an increasingly global public. The RIAA and the MPAA labor (mostly without success) to convince a generation that has grown up ripping, burning, and downloading that the use of a P2P filesharing program is the moral equivalent of shoplifting a CD. n22
No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred’s failed challenge to the CTEA’s retroactive twenty-year extension of copyright terms – effectively a [*1140] twenty-year moratorium on new works entering the public domain. n23 (Just getting Eldred to the Supreme Court was no mean accomplishment; getting votes to strike down the CTEA was truly remarkable.) Lessig is an idea slinger par excellance, the author of Code and Other Laws of Cyberspace n24 and The Future of Ideas n25 – enormously influential books. And now the litigator and idea slinger has remade himself as a “norm entrepreneur” n26 – a public figure with the towering ambition of reshaping “copynorms” n27 – the fundamental set of social norms that shape perceptions of the morality of filesharing and the legitimacy of legislation that shrinks the public domain.
Lessig’s most sustained attempt to reshape copynorms is his most recent book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. n28 The title gives it away. Free Culture is no academic exercise. And Lessig is remarkably frank about this:
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. n29
Free Culture wants to win hearts and minds for a great cause – a radical paradigm shift from corporate culture to free culture, from selling to sharing, and from intellectual property to intellectual commons. Just when it looked like our copyfuture would be dominated by a few giant media conglomerates – vast integrated empires of publishing, music distribution, and motion picture production – Lessig announces a future modeled on the open-source software movement, a future in which small-scale enterprises and individuals build a vast intellectual commons dedicated to the propositions that information shall be free and ideas shall not be owned.
[*1141] Because Lessig’s method of exposition is unusual for the kind of book usually reviewed in these pages, so shall be the approach of this Review. Lessig tells stories. The Review will nudge, worry, and pick at the stories that Lessig tells. Along the way, I hope to illuminate Lessig’s themes and raise some questions about his conclusions. Of the stories that Lessig tells, some work and some don’t. Of the conclusions that Lessig draws from his stories, some follow and some don’t. In the end, I hope to draw out some large implications from Lessig’s tales of free culture. Like Lessig, I will adopt a somewhat breezy tone, but unlike Lessig, I shall be aiming at academic rigor.
This Review is about Free Culture, the book and the ideas for which it stands. In Part II, we will take a look at the phrase “free culture” itself, attempting to glean the central idea of Free Culture, the book. Part III takes a look at Lessig’s indictment of the big media companies and the power that copyright law gives them over public culture. In Part IV, we look at Lessig’s arguments that “piracy” can actually be a good thing, and, in Part V, we see how he applies those ideas to P2P filesharing. Part VI investigates Lessig’s arguments about the social costs of intellectual property rights; Part VII adumbrates his four-part typology of laws, markets, norms, and architecture as the modalities of regulation. In Part VIII, we look at Lessig’s discussion of the relationship between copyrights and copynorms, and in Part IX, we examine Lessig’s postmortem on the Eldred v. Ashcroft case. In Part X, we take a brief look at Lessig’s proposals for the future of copyright. Part XI concludes. Free Culture is a sprawling book, and this is a sprawling Review.
II. Just Another Word for Nothing Left to Lose
What does the phrase “Free Culture” – the dominant motif of Lessig’s book – really mean? In the preface, Lessig gives a hint about what is to come:
We come from a tradition of “free culture” – not “free” as in “free beer” (to borrow a phrase from the founder of the freesoftware movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture” – a culture in which [*1142] creators get to create only with the permission of the powerful, or of creators from the past. n30
And he clarifies his position:
An argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which artists don’t get paid. A culture without property, or in which creators can’t get paid, is anarchy, not freedom. Anarchy is not what I advance here.
Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written. n31
These passages reveal something important about the aim of Free Culture. Rhetoric and not rigorous argument is the currency of the norm entrepreneur. And quite naturally, academic readers will get a bit antsy about the looseness of Lessig’s arguments and the imprecision of his language. “Free will” and “free markets” aren’t really “free” in the same sense. n32 “A balance between anarchy and control” – that’s a nice phrase, but what does it really mean?
Let me be clear. Academic standards are surely not the only valid standards. Fine rhetoric can play an important social role – opening minds and hearts to new possibilities. If Free Culture succeeds as a political tract, it will be a success on its own terms. If Free Culture does more – if it is a political tract that advances important and enduring new ideas – then it will be in proud company with Cato’s Letters and the Federalist Papers, to name just two exemplars of persuasive writing that transcend the pejorative phrase “mere rhetoric.”
Another important clue to the meaning and method of Free Culture comes in its Introduction. Free Culture persuades by telling stories, and Lessig’s first story is a doozy that vividly illustrates the connection between technological change and legal change. The story is about the Wright brothers and the invention of the airplane. n33 The advent of the airplane [*1143] created a new problem for property law. The Latin maxim “cujus est solum ejus est usque ad coelum et ad inferos” means, “To whomsoever the soil belongs, he owns also to the sky and to the depths.” n34 A mechanical application of this doctrine would create a “tragedy of the anticommons” n35 for air travel: Airplanes would be trespassers and, given the huge number of individual property owners from whom permissions would need to be obtained, air travel would be practically impossible. n36 But this rule gave way in the face of the new technology of air travel in United States v. Causby, n37 in which Justice Douglas wrote:
[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. n38
Lessig uses Causby to tell a story about the relationship between technological change and legal change. He claims that the quoted passage from Causby shows how technological change is translated into legal change by instrumentalist judging:
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 [*1144] changes. Ideas that were as solid as rock in one age crumble in another. n39
One might quibble at this point. First, the passage that Lessig cites was not actually the basis for the decision in Causby. The very next sentences in the opinion read, “But that general principle does not control the present case. For the United States conceded on oral argument that if the flights over respondents’ property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment.” n40 Justice Douglas’s neat turn of phrase was obiter dicta and not part of the reasoning in support of Causby’s holding.
Second, and more fundamentally, this is not “how the law usually works” – not even close. Justice Douglas was the ber-realist – a Supreme Court justice who cared not a whit for what the law required and everything for his own ideas about what the law should be. n41 Courts rarely reverse centuries of precedent simply because the judges who sit on the court believe that the rules are contrary to their own preferences about what the law ought to say. There is a relationship between technological change and legal change, but it is a more complex relationship than suggested by the story that Lessig tells about Causby.
But I said “quibble,” and I meant it. Let’s not miss the forest for the trees. Lessig’s Causby story is designed to “pump” certain intuitions n42 – to put us in the right frame of mind for what is to come. Technological changes – digitization, the internet, P2P filesharing, and the rest – bear a relationship to copyright law that is similar to the relationship that air travel bore to the cujus est solum doctrine in property law. Lessig’s story is designed to soften us up, to prepare us for the possibility that intellectual property will need to give way to a new technological reality if the public interest is to be served. Law must be responsive to the needs of technology and progress if our culture is to be free.
III. The Big Bad Media Companies
Early in the book, Lessig tells another marvelous story – the illuminating tale of Edwin Howard Armstrong, who invented FM radio. n43 Free Culture recounts the tale of Armstrong’s battle with RCA, which attempted to suppress Armstrong’s superior technology in order to protect its [*1145] market position in AM radio. Another good story, and again Lessig is making vivid a general point about law and technology. Stakeholders in the status quo will use the law – both fairly and unfairly – to protect their interests, even at the expense of progress that is manifestly in the public interest.
Lessig ties some of these ideas together towards the end of the Introduction:
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.
The puzzle is, Why?
Is it because we have come to understand a truth about the value and importance of absolute property over ideas and culture? Is it because we have discovered that our tradition of rejecting such an absolute claim was wrong?
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? n44
Maybe. Maybe Lessig is right and we are simply bewitched by the idea of intellectual property or manipulated by media giants into accepting strong copyright laws. But maybe not. Stories are not arguments. Large corporations are easy targets: They are hardly warm and fuzzy. But one story does not an argument make. Big companies, big governments, and even “little guys” – history is full of villainous behavior by actors of all sorts, big and small, public and private. Not every story about a big company and an individual has the big company as the villain and the individual as the hero. From the fact that RCA attempted to suppress FM radio to the detriment of the public interest, it does not follow that the RIAA and the MPAA are wrong to combat P2P filesharing.
IV. Larry and the Pirates n45
Free Culture is divided into parts, and the first five chapters are lumped together in a part titled Piracy. Piracy is an important rhetorical trope in debates about P2P filesharing. If the rights created by copyright were just [*1146] like rights in tangible property, then unauthorized copying would be like theft. And if the internet were like the high seas, a zone outside the territory of any nation state, then P2P filesharers could be analogized to modern-day pirates – a common enemy of all civilized peoples. In the piracy chapters, Lessig succeeds in undermining the piracy trope. Piracy does not create new value, but borrowing from copyrighted works is a time honored method of creating things that are new and valuable. Lessig’s success is largely a function of the stories that he tells, and this Part of the Review will take a careful look at the conclusion that Lessig draws from the tales he tells.
In the introductory interlude that begins the chapters on piracy, Lessig takes aim at the rhetoric of those who campaign against P2P filesharing in order to protect copyright. Of course, we are familiar with the rhetorical moves. P2P users are thieves and pirates. But Lessig thinks that this rhetoric is built on an implausible assumption:
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. n46
Lessig then makes a crucial move. This move has been made before, but Lessig makes it deftly and clearly. He distinguishes reproduction from transformation:
[There 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.
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.
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. n47
Of course, self-publishing predates the internet. The cassette tape recorder empowered everyone with modest means to create their own new works – compilation tapes. The photocopy machine empowered ordinary instructors to produce their own new works – course materials. P2P [*1147] filesharing goes one giant step further – it empowers everyone to distribute works in digital form. If I made a compilation tape, I could make copies for a few friends. If I were a fanatic, I could make and distribute copies to a few hundred friends and strangers at a substantial cost in time and materials. P2P distribution, however, reaches the whole world, and the copies that are distributed can be recopied and redistributed with almost zero loss of fidelity to the original. Through computer applications such as KaZaA or Grokster, my ability to share is limited only by the processing capacity of my computer and the bandwidth of my connection to the internet.
These are truly revolutionary changes – transformations that upset the basic premises upon which copyright law and copynorms are predicated. Traditional copyright law is premised on the idea that copying technologies are expensive and centralized. The historical paradigm of copying technology is the printing press – a big piece of machinery that might be acquired by a small business but not by an ordinary household. The law is pretty good at finding and controlling a relatively small number of big machines. The combination of the personal computer and the internet changes that paradigm profoundly. A typical household now has a set of devices that equal the printing press, a record stamping plant, and film production facility, connected to a low-cost worldwide distribution network. We all have a set of “burglary tools” for intellectual property “theft” on a massive scale. But is the unauthorized copying of a copyrighted work really theft? And even if it is theft as a matter of law, should it be?
In Chapter 1, Lessig tells two very compelling stories about the value created by copying. The first story is about Walt Disney. Lessig argues that the early history of Disney’s creative output was based on derivative works. n48 Early Disney cartoons borrowed from, parodied, and mimicked a variety of works. Some were in the public domain like Snow White, while others were relatively new works, still in copyright – for example, Steamboat Willie ripped off Steamboat Bill, Jr., a Buster Keaton film. n49
The second story is about doujinshi – a form of Japanese comic book in which a source comic is reworked and transformed. n50 Japanese copyright law is not so different than the copyright laws of the United States. n51 So, quite naturally, Lessig asks why the owners of the originals don’t sue:
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 [*1148] 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.” n52
I think that something else is going on. If just some of the producers of doujinshi comic books were sued or prosecuted, this might have a deterrent effect. You don’t have to bring a suit against each and every infringer to enforce the law. I suspect that the doujinshi phenomenon is better explained by copynorms – the informal social attitudes that create expectations about what is “okay” and what is socially unacceptable. Doujinshi are permitted by Japanese copynorms. Because these norms are internalized, the question that Lessig asked – “Why don’t you sue?” – is not a question that even arises from within the culture.
Copynorms are the sea we swim in when we think about copyright law. We don’t see them, except when they begin to break down or change. Doujinshi are okay: they are within the accepted bounds of behavior. P2P filesharing is a bit different. P2P filesharing did not creep up on us, altering norms as it went. P2P filesharing exploded, creating a big-bang transformation of copybehavior. In one segment of the culture, college dorms and teenage bedrooms, the copynorms went one way: This is just sharing; it’s like swapping compilation cassette tapes. In the IP industry, not unexpectedly, copynorms went another way: This is just theft; it’s like running a pirate CD pressing plant. Which version of copynorms will prevail? The norms embraced by the Napster generation or the norms pushed by the MPAA and the RIAA? This battle over copynorms is paramount to the shape of copybehavior and copyright law in the future.
Lessig offers yet another story, designed to elicit libertarian copynorms. Chapter 2 of Free Culture is called Mere Copyists, and it begins with another doozy of a story – George Eastman’s development of the roll-film camera. n53 Lessig’s important point is about the legal environment that was an essential prerequisite for photography to flourish:
What was required for this technology to flourish? Obviously, Eastman’s genius was an important part. But also important was the legal environment within which Eastman’s invention grew. For early in the history of photography, there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, [*1149] required permission before he could capture and print whatever image he wanted. Their answer was no. n54
The Coase Theorem predicts that in an environment of zero transaction costs, the initial allocation of entitlements will not affect how resources are used. n55 In the photography case and in the case of P2P copying of music or video, the zero transaction costs assumption does not hold. n56 And hence the choice of entitlement-assigning rules may determine whether the efficient outcomes are reached.
Photography is a very clever example for Lessig. Copynorms concerning photography are well established. Everyone “knows” that photographing a building that belongs to someone else is okay, in the deep sense that widely held social norms permit and protect the practice of photography. Photographers, professionals and amateurs alike, may rightfully photograph people, places, and things without obtaining permission from the subject or owner. n57 Law and social norms could have branded photographers as “pirates,” but they didn’t.
Rhetorically, then, the photography story is effective, but it doesn’t really work as an argument. There is a very real difference between photography and filesharing. The subjects of photography are not (usually) created for the purpose of being photographed. That is not to say that the subjects are not created. Buildings are built, and you don’t have to be a supermodel to choose your ensemble with care. But buildings are not built for the purpose of being photographed. We don’t choose our outfits on the off chance that someone might take a snapshot in which we might appear. But music is often recorded so that copies can be sold. Films are made so that they can be exhibited and sold on DVD. Books are written so that they will be purchased in bookshops. There is a fundamental disanalogy between photographing someone else’s property and ripping and uploading someone else’s song. That disanalogy may be quite relevant to the question whether the label “pirate” should be applied to photographers or filesharers. Indeed, the photography story can be turned around because, as Lessig understands, photographers don’t just copy information, they create it: Each photograph brings new information into the world. And if photographs themselves were not protected by copyright law, the effect might be a diminished production [*1150] of fine photography – a result that would make the world less aesthetically rich.
Lessig’s next story goes to exactly this point of disanalogy – what we might call the question of incentives to produce information. Are strong copyright law and strong copynorms necessary in order to provide adequate incentives to produce information? The next story is about the “free software” (FS) (or “open-source software” (OSS)) movement. And this story is really the master story of Free Culture:
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.
This opportunity creates a “completely new kind of learning platform,” as Brown describes. “As soon as you start doing that, you … unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it.” Each effort is a kind of apprenticeship. “Open source becomes a major apprenticeship platform.” n58
Linux is, of course, the prime example – the rock star of the free-software movement. Linux prospers even though the Linux kernel is free – downloadable at no charge. n59
One point of this story is that free copying is not inimical to the creation of open-source software. Of course, this does not suggest that there is a free lunch when it comes to software. After all, someone pays for all that Linux programming in foregone leisure time, foregone company time, or in some other way. The point, rather, is that as long as someone is willing to pay for lunch, not everyone needs to pay.
The larger lesson of Chapter 2 is that copying (and remixing) content can be a powerful engine of creativity. Lessig ends the chapter, however, with a note of pessimism: “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.” n60 What law does Lessig have in mind? The most likely candidate is the Digital Millennium Copyright Act, n61 but because Lessig doesn’t try for the precision of scholarly writing, we may never know exactly what he meant.
[*1151] Lessig offers yet another story on the theme of piracy. And it is a spectacular story! Lessig tells the tale of Jesse Jordan, a student at Rensselaer Polytechnic Institute (RPI), who developed a very effective search engine for the files on RPI’s network. n62 The search engine listed all of the hundreds of thousands of files on the network – including MP3-format and other types of music files. n63 The catalog of files included lots of other stuff – about seventy-five percent other stuff – but nonetheless the RIAA was not amused. n64 Jesse Jordan was served with a complaint, and the RIAA demanded all of his savings in exchange for dropping the suit against him. n65
The story of Jesse Jordan is an example of the filesharing phenomenon, where all of the equities and most of our moral intuitions are on the side of the defendant. Jesse Jordan looks like an innocent victim of the big bad media companies. If you are knowledgeable about copyright doctrine, you are likely to agree that Jordan has a compelling legal defense to the lawsuit filed against him – he wasn’t filesharing. He just created a search engine – the kind of software that we use all the time for many different purposes. If anyone deserves a Sony “substantial noninfringing uses” defense, n66 surely it is Jordan. His story engages all of our sympathy on the side of the filesharers and against the content owners.
But precisely because Jordan’s story is so compelling, it can be used to illustrate many points – not all of which serve the agenda of Free Culture. In particular, as Lessig tells the tale, it is first and foremost a story about the distorting effects of litigation costs on the system of civil litigation. Ultimately, Jordan lost because he could not afford the $ 250,000 it might have cost to successfully assert his defenses. n67 The distorting influence of litigation costs on the effects of copyright law ought to be taken seriously. But many readers will draw a different lesson from the story – the lesson that the RIAA is a bad actor. Pumping that intuition may be effective rhetoric, but it is not a necessarily rigorous argument for an obvious reason: Just because the RIAA goes over the top does not mean that the policies the RIAA defends are not in the public interest. Ad hominem arguments are usually bad ones.
Ad hominem argument plays a role in Lessig’s next point about piracy:
If “piracy” means using the creative property of others without their permission – if “if value, then right” is true – then the history of the [*1152] 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. n68
He begins with film, telling the story of motion-picture production companies that fled the East Coast for California in order to avoid Thomas Edison’s patents. n69 He moves next to the more complicated story of the sound-recording industry. Lessig points out that in the early days of the technology, it wasn’t clear whether sound recordings infringed sheet-music copyrights. A battle over the content of the law ensued, pitting content proprietors against the purveyors of the new technology:
The innovators who developed the technology to record other people’s works were “sponging upon the toil, the work, the talent, and genius of American composers,” and the “music publishing industry” was thereby “at the complete mercy of this one pirate.” As John Philip Sousa put it, in as direct a way as possible, “When they make money out of my pieces, I want a share of it.” n70
We know how the conflict was resolved – the Copyright Act was amended, extending protection to sound recordings – but this protection was limited in a way that is extremely important to Lessig’s argument against a permission-based system of intellectual property:
But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. n71
And this precedent has been appropriated by a variety of scholars as the basis for proposals to set up a similar scheme for P2P filesharing. Neil Netanel, for example, has argued that the benefits of P2P filesharing can be preserved by establishing a tax on hardware (such as MP3 players and computers) and then paying out the proceeds to the copyright owners based on their pro rata share of downloads (which would be sampled or monitored). n72
These stories about piracy by the ancestors of the RIAA and the MPAA certainly pump a set of intuitions. n73 “That’s not fair” – the reader is likely to [*1153] think – if piracy was allowed for film, recorded music, radio, and cable, then it ought to be allowed for P2P filesharing. But why? Two wrongs don’t make a right. We might use the same stories to pump quite a different intuition. Copyright owners have been wronged before – by the recording industry, the broadcast industry, and the cable television industry – and the time has come to put this pattern of piracy to an end! In a more consequentialist vein, we might ask Lessig the counterfactual question: What would have happened if copyright had been respected (or extended at an earlier stage) in each of these prior eras of piracy? I don’t know whether Lessig is claiming that our history of piracy has made us better off, but we are entitled to be worried that he is implying this without offering evidence.
The tale of Larry and the Pirates ends with an important and interesting move by Lessig. Lessig distinguishes two forms of piracy: commercial and noncommercial. n74 If I may be permitted to simplify Lessig’s point, the idea is that commercial piracy – the wholesale illegal duplication and sale of DVDs and CDs – is bad piracy, whereas noncommercial piracy is good piracy, or at least “not bad.” Although Lessig consistently insists that commercial piracy is wrong, he can’t seem to resist making arguments that undermine his own conclusion:
We could, for example, remind ourselves that for the first one hundred years of the American Republic, America did not honor foreign copyrights. We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right.
That excuse isn’t terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule. The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well. n75
Lessig doesn’t ask the next logical question. Even if foreign commercial copying is legally wrong, is it really morally wrong? Less developed countries (LDCs) prohibit copying of U.S. works in large part because of the enormous economic pressure the United States can place on them – through the WTO and other mechanisms. The fact that LDCs have formally acquiesced to these pressures doesn’t really answer the double-standards argument – that the United States is asking LDCs to meet a [*1154] standard that the United States itself did not meet. Moreover, Lessig’s history-of-piracy arguments from Chapter 4 seem to be based on a similar sort of double-standard argument.
The main point of Lessig’s discussion of piracy is to deprive the opponents of P2P filesharing of a rhetorical weapon – the metaphoric equation of piracy and copying. For the most part, Lessig’s stories succeed in the task that he sets for them. Copying is not the moral equivalent of piracy, because copying can and does bring new things of value into the world. Stories are not arguments, however, and the implications of Lessig’s stories are not entirely clear. From the fact that copying is not the moral equivalent of piracy, it does not follow that copyright laws are unjustified. Of course, Lessig concedes this, but the story-driven structure of Free Culture makes it difficult for us to discern just what lesson we are supposed to have learned from Larry and the Pirates.
V. I Want My MP3 n76
All of this history is leading somewhere, and we all know where. The future of copyright is deeply entwined with the future of P2P filesharing. We associate P2P filesharing with Napster and its successors, but these programs are really just surface manifestations of the internet itself:
Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet (and, arguably, off the Internet as well), Shawn Fanning and crew had simply put together components that had been developed independently.
The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the system. Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It boasts over 100 million members.) These services’ systems are different architecturally, though not very different in function: Each enables users to make content available to any number of other users. With a p2p system, you can share your favorite songs with your best friend – or your 20,000 best friends. n77
Lessig’s next move is to divide the world of P2P users into four categories, which can be summarized as follows:
A. There are some who use sharing networks as substitutes for purchasing content… .
B. There are some who use sharing networks to sample music before purchasing it… .
C. There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high… .
D. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. n78
Take a close look at type C. Lessig lumps together two different groups: (i) those who use sharing networks to get access to copyrighted content that is no longer sold and (ii) those who would not have purchased because the transaction costs off the Net are too high. Given that Lessig defines type A as those who would have purchased the downloaded music if it were not available for free online, this categorization implies that type C(ii) and type A exhaust the possibilities not covered by categories B, C(i), and D. But that isn’t the case.
Both type A and type C(ii) are defined counterfactually. Type A consists of those who would purchase music offline, if they could not get the content for free through P2P filesharing. n79 Type C(ii) consists of those who would purchase music offline, if the off-internet transaction costs were the same as or less than the on-internet transaction costs. But this leaves another logical possibility: Type E (added to Lessig’s A through D) consists of those who would not purchase music offline or online even with zero transaction costs, so long as the price includes the royalty charged by the copyright owner. Roughly speaking, type E consists of those who will not even pay $ 1 to download from iTunes (or perhaps fifty cents, if half of the iTunes price is transaction costs).
With this distinction in mind, let’s return to Lessig’s argument:
From the perspective of economics, only type A sharing is clearly harmful. Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, yet good for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise available). So how sharing matters on balance is a hard question to answer – and certainly much more difficult than the current rhetoric around the issue suggests. n80
This is one of the most important passages in Free Culture, but Lessig makes this crucial argument with breathtaking speed. To assess its validity, we need to unpack it. Notice that in describing type C in the argument, [*1156] Lessig says “since the work is not otherwise available.” That statement is accurate for type C(i), but not for type C(ii). Type C(ii) works are available, but the P2P filesharer is simply not willing to pay the transaction costs. Type E works (not included in Lessig’s typology) are available, but the P2P filesharer would be unwilling to pay the monopoly rent (royalty), even if the transaction costs were zero.
Now things get really interesting. What is the optimal policy for P2P filesharers of type A, type C(ii), and type E? Type A consists of P2P filesharers who would pay for a CD if a free copy were not available via filesharing. The choice of legal regimes to govern P2P filesharing will not determine whether type A users will actually get the content (the music). In the jargon of economists, the only effect of allowing P2P filesharing for type A users is a “wealth transfer effect.”
Type C(ii) users are those who would purchase music but for transaction costs. The choice of legal regimes to govern P2P filesharing will determine whether type C(ii) users actually consume music. If they must choose between paying and going without, they will go without. Type E consists of P2P filesharers who would not pay for music, even with zero transaction costs, so long as the owner of the copyright charges a profit-maximizing royalty. Like type C(ii) users, if type E users must choose between paying and going without, they will go without; unlike type C(ii) users, type E users would forgo content even if transaction costs were zero.
Lessig’s essential point is that there is a dead welfare loss if we allocate entitlement to the music to the copyright holder as against type C(ii) and type E filesharers. Copyright owners do not benefit from holding the entitlement against users of either type because these users won’t pay for CDs. Type C(ii) and Type E users lose (if the entitlement is assigned to the copyright owner) because they forgo consumption of music that they would enjoy.
So far, so good, but Lessig’s version of the argument is incomplete. I’ve been going along with Lessig and treating types A, C(ii), and E as if they were distinct categories, but this is misleading. A more illuminating story would make it clear that we all are willing to pay different amounts for different content. If I am type A with respect to a given song (or collection of songs), this means that the price that I am willing to pay for the content exceeds the market price of the CD. If I am type C(ii), then the price that I am willing to pay is below the market price of the CD but above the zero transaction cost price. If I am type E, then the price that I am willing to pay is below the zero-transaction-cost royalty. We might add type F, comprising those who would accept the music file only if they were paid to do so. Any given song (or content file, more generally) will likely have consumers of types A, C(ii), E, and F.
The fact that different consumers are willing to pay different prices for any given good does not create a problem for the allocation of tangible [*1157] resources. The market establishes a price for the tangible resource, and those who derive the greatest utility from the resource purchase it. (I am setting the problem of wealth effects to the side.) But with intangible information (such as the pattern of bits that make up the MP3-encoded music file), there is no need to get the file to the consumers who will derive the greatest benefit. That’s because consumption of information is nonrivalrous. Everyone can have a copy. So, in the best of all possible worlds, everyone who derives any positive utility from the content would have a copy.
But we do not live in the best of all possible worlds. Our world has the defect that price and enforcement discrimination on the basis of demand curves is not feasible. In an ideal world, copyright owners would sell copies to each potential buyer at a price the buyer was willing to pay. If I am willing to pay $ 50 for a copy of the Furtwngler recording of Bruckner’s Seventh Symphony, I would be charged $ 50 or less. But if you were only willing to pay $ 1 for the same recording, your price would be $ 1 or less. That is, the owner of the copyright in the recording would be able to engage in price discrimination on the basis of our demand curves – our willingness to purchase at different prices.
In the actual world, however, this kind of price discrimination is difficult or impossible for two reasons. First, the owner of the copyright doesn’t know how much you or I are willing to pay, so the owner doesn’t know to charge you a lower price than she charges me. Second, even if the owner somehow did know how much we were willing to pay, it would be difficult for her to prevent you from selling your copy to me at a price that was higher than you were charged but lower than the price that I would be charged.
The same point could be made about enforcement. In a better world, we could enforce the copyright laws against type A users, but not against type C(ii) or E users. But the legal system, like the copyright owner, lacks the information as to which users are which. And even if the legal system had this information, it would be difficult to prevent type E users from selling their free copies to type A users.
So the impossibility of price and enforcement discrimination means that we must choose between giving the copyright owner the entitlement (the right to prevent copying) as against type A, C(ii), and E filesharers and giving all P2P filesharers the entitlement to copy.
There is one more wrinkle that we need to add to Lessig’s story. If P2P filesharing were eliminated by some legal regime, then the economics of for-pay downloading services would change. Demand would increase, economies of scale would kick in, and we would expect the price per download to fall. In other words, some users who are type C(ii) or E given the availability of free P2P filesharing would become type A users if lower cost, for-pay downloading were available. This is not a criticism of Lessig’s argument but simply a supplement to it.
[*1158] Now that we’ve filled in the gaps, we can see that Lessig’s version of the argument, although highly compressed, was essentially correct. Free P2P filesharing has both costs and benefits. When we ask ourselves how entitlements should be allocated, we need to look at both sides of the ledger:
The question we should be asking about file sharing is how best to preserve its benefits while minimizing (to the extent possible) the wrongful harm it causes artists. The question is one of balance. The law should seek that balance, and that balance will be found only with time. n81
Of course, we all know where Lessig will go next. He will argue that the benefits of filesharing exceed the costs. He begins with the argument that filesharing actually stimulates demand for CDs. Type B users sample new songs, and buy more music:
We start to answer this question by focusing on the net harm, from the standpoint of the industry as a whole, that sharing networks cause. The “net harm” to the industry as a whole is the amount by which type A sharing exceeds type B. If the record companies sold more records through sampling than they lost through substitution, then sharing networks would actually benefit music companies on balance. n82
And Lessig identifies other benefits of P2P filesharing. Type C(i) involves the P2P filesharing of music that is no longer for sale. Lessig argues that all of type C(i) filesharing should be counted as a benefit. I think Lessig is wrong about this. Why? Because in the absence of free P2P filesharing, it is highly likely that for-pay downloading services for out-of-print records and CDs would have emerged. These services could not get off the ground given that they had to compete with free P2P filesharing. (Free is better than cheap.) But cheap for-pay downloads would likely have competed quite effectively with relatively expensive (and increasingly scarce) used copies of out-of-print records and CDs.
Continuing, Lessig reinforces his argument that type C(i) filesharing is a benefit of free P2P filesharing by asking this rhetorical question: “If you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well?” n83 This question is partially illuminating and partially misleading. Yes, it is true that type C(i) filesharing is like the used book and record market in some respects, but there is an important difference. Gearing up record plants or printing presses involves relatively high fixed costs. So, the effective choice is between a used record or book and no copy at all. Gearing up a download site for out-of-print CDs and records involves very low fixed costs – so low that people are willing to [*1159] do it for no compensation at all. In the absence of free P2P filesharing, used CDs of out-of-print records would compete with low-cost downloads. So one might well believe that type C sharing should be stopped but that libraries and used book stores should remain open.
Lessig then turns to type D filesharing. n84 Type D works are either in the public domain or are works of which the owner of the copyright has consented to free copying. In either case, the elimination of type D copying should count as a cost of the legal prohibition of P2P filesharing.
So what is Lessig’s point? Given the arguments that he has made, one might think that Lessig would come out for the legalization of P2P filesharing. Even with all my quibbles and qualifications, it seems to me that two of Lessig’s arguments (if correct on the facts) are compelling. If P2P filesharing actually increases demand for CDs, then there is no reason to restrict it – unless one could show that the optimal level of investment in music production requires an even greater monopoly rent from music and sound recording copyrights than was afforded by the pre-P2P regimes. (That seems doubtful.) And, independently, if Lessig is correct that the net welfare gains from free P2P sharing to type A, C(ii), and E users far exceed the costs to copyright owners, then it seems highly likely that we should simply legalize P2P filesharing. If both arguments are correct, then the case for legalization is overwhelming.
But this does not seem to be the direction in which Lessig is heading. After making a compelling case for legalization, Lessig seems to be preparing the way for some sort of compromise solution. He ends the chapter by noting that we have a “tradition” of compromise between the interests of copyright owners and consumers. n85 When the courts ruled that cable television operators had no obligation to pay for free broadcast signals, Congress created a mandatory license scheme. n86 When courts ruled that the music recording industry had no obligation to pay sheet music copyright owners a royalty, Congress created a mandatory licensing scheme. n87
VI. Rights Are Wrongs
After his quite analytic discussion of P2P filesharing, Lessig turns back to storytelling. Particularly compelling is the story of Jon Else’s attempt to get clearance for 4.5 seconds of an episode of The Simpsons that appeared on a television set in one scene of a documentary about stagehands working on a production of Wagner’s Ring Cycle in San Francisco. n88 Else considered it a [*1160] small but significant touch of irony that stagehands working on Wagner’s epic opera were watching a middle-brow cartoon backstage, and as such he wanted to leave the detail in the final cut of his film. In the end, Else was told that it would cost $ 10,000 to use the four seconds. Of course, these four seconds were almost undoubtedly fair use. n89 But if Else were sued, it would cost even more than $ 10,000 to successfully assert the fair use defense. So Else had to use special effects to replace The Simpsons in the 4.5 seconds of his documentary.
The Else story is compelling. As was the case with the story of Jesse Jordan, the Else story is really a story about imperfections in the litigation system. There very well may be a case for fee-shifting for successful fair use defenses – perhaps with a bonus to give adequate incentives for contingency fair use defense representation. Else had another option, of course – a declaratory relief action. This has a nifty advantage over asserting fair use from a defensive posture. If you lose the declaratory relief action, then the party that is unreasonably contesting fair use cannot recover anything against you – because you haven’t yet copied.
Lessig makes it clear what he thinks the point of the Else story is:
In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But in practice, fair use functions very differently. The fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight. The law has the right aim; practice has defeated the aim. n90
Chapter 10 is titled Property, and it begins with the story of Jack Valenti’s relentless and successful lobbying effort to give copyright holders property rights that are the equal of property rights in tangible resources. Lessig quotes Valenti, and the quotation is worth repeating:
No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the [*1161] question. And that is the rostrum on which this entire hearing and the debates to follow must rest. n91
Lessig calls this position “extremist,” n92 but I would make a different point. Valenti (and many other IP absolutists) simply ignore the crucial differences between information and tangible resources. Consumption of tangible resources is rivalrous – when I drink a glass of Ridge Zinfandel, you cannot drink that same glass of wine. Consumption of information is nonrivalrous – my copy of an MP3 file does not make yours disappear. With tangible resources, property rights need to be thick and perpetual or the resource will fail to go to its highest and best use. With information, thick and perpetual property rights prevent the resource from going to its highest and best use.
Lessig’s strategy is different. He focuses on history, not economics. He wants to convince us that thick and perpetual property rights in information are outside our tradition – they would be new, radical, a break with history, an innovation, outside the norm, unusual, and unprecedented. The first piece of evidence that Lessig offers is the Constitution:
In the clause granting Congress the power to create “creative property,” the Constitution requires that after a “limited time,” Congress take back the rights that it has granted and set the “creative property” free to the public domain. Yet when Congress does this, when the expiration of a copyright term “takes” your copyright and turns it over to the public domain, Congress does not have any obligation to pay “just compensation” for this “taking.” n93
So, Lessig concludes, Valenti’s call for thick and perpetual property rights in information goes against our constitutional tradition:
The Constitution thus on its face states that these two forms of property are not to be accorded the same rights. They are plainly to be treated differently. Valenti is therefore not just asking for a change in our tradition when he argues that creative-property owners should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself. n94
Lessig is right. Perpetual intellectual property rights would require a constitutional change. Of course, that doesn’t settle the question of whether perpetual copyright would be a good idea. Recall that Lessig himself took a rather cavalier attitude towards tradition in his discussion of the cujus est [*1162] solum doctrine in property law. n95 If common sense revolted at the idea of limited copyright terms, then Lessig would presumably admit that the Constitution should be changed.
VII. Laws, Markets, Norms, and Architecture
At this point, Lessig shifts gears and pulls out a model. There are, he says, four modalities of regulation:
1. Law – the constitution, statutes, regulations, and common law. n96
2. Market – the operation of property and pricing. n97
3. Norms – social attitudes enforced through informal sanctions and rewards. n98
4. Architecture – the software or hardware that determines what is technologically possible (speed pumps and the layered nature of the Internet are both “architecture” in this sense). n99
Lessig then deploys the model to explain how the internet has affected the way law, market, norms, and architecture interact to regulate copying:
The law limits the ability to copy and share content, by imposing penalties on those who copy and share content. Those penalties are reinforced by technologies that make it hard to copy and share content (architecture) and expensive to copy and share content (market). Finally, those penalties are mitigated by norms we all recognize – kids, for example, taping other kids’ records. These uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement. n100
And Lessig argues that, pre-internet, the four modalities were in some sort of rough balance, but that the internet upset that balance:
Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The happy balance (for the [copyright] warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet. n101
[*1163] So it is not surprising that the content industries argued that all four modalities should be brought to bear to reinforce copyright in response to the internet:
In response to the changes the Internet had effected, the White Paper [prepared by the Commerce Department] argued (1) Congress should strengthen intellectual property law, (2) businesses should adopt innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright. n102
Lessig argues that the architecture of the internet (or digitization, because the same effect would have occurred without the internet) changes the relationship between use and copying. Pre-internet “use” did not require copying, but after the internet, Lessig claims, using information requires copying the information:
Before the Internet, if you purchased a book and read it ten times, there would be no plausible copyright-related argument that the copyright owner could make to control that use of her book. Copyright law would have nothing to say about whether you read the book once, ten times, or every night before you went to bed. None of those instances of use – reading – could be regulated by copyright law because none of those uses produced a copy.
But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner’s wish. n103
If you are reading this Review on Westlaw or Lexis or on the internet, you are reading a new copy. And if you download the Review to disk, you make another copy. If you open that copy, your computer creates yet another copy. Digitization multiplies copies. Every time a digital copy is used, another digital copy (or two or three) is produced. And digitization creates the possibility that the creators of digital works can build control into the work itself. Lessig gives the frightening example of the permissions that can be built into an Adobe eBook:
The Adobe eBook Reader calls these controls “permissions” – as if the publisher has the power to control how you use these works. For [*1164] works under copyright, the copyright owner certainly does have the power – up to the limits of the copyright law. But for work not under copyright, there is no such copyright power. When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the publisher to control how I use the book on my computer, far beyond the control that the law would enable. n104
Encryption and digital rights management added to the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) n105 give the proprietors of digital works the power to control fair use – to make fair use impossible without the deployment of illegal circumvention technologies. This point, while familiar to copyright scholars, has not yet sunk in with the public. Lessig does a fabulous job of making this point vivid and real. The architectural and legal changes made in response to P2P filesharing and the threat posed by digitization to copyright are like DDT in the ecology of creativity. Digital rights management plus the DMCA plus media concentration threatens the vibrancy of our culture.
VIII. Copyrights and Copynorms
One of the most important points that Lessig makes in Free Culture concerns the mismatch between copyrights and copynorms. Copyright law says that the unauthorized P2P filesharing of copyrighted works is illegal. Copynorms say that using P2P technologies is just fine. We might call this the “normalization” of illegality. Here is how Lessig puts it:
As my colleague Charlie Nesson told a class at Stanford, each year law schools admit thousands of students who have illegally downloaded music, illegally consumed alcohol and sometimes drugs, illegally worked without paying taxes, illegally driven cars. These are kids for whom behaving illegally is increasingly the norm. And then we, as law professors, are supposed to teach them how to behave ethically – how to say no to bribes, or keep client funds separate, or honor a demand to disclose a document that will mean that your case is over. Generations of Americans – more significantly in some parts of America than in others, but still, everywhere in America today – can’t live their lives both normally and legally, since “normally” entails a certain degree of illegality. n106
[*1165] This point is incredibly important. As Lessig says, it gives us a choice: Either get tough and really enforce the laws or change them. Although I am attracted to Lessig’s argument, I also see some weaknesses. In particular, it is difficult to prove or predict the complex causal chains that result when there is a mismatch between norms and laws. Yes, it seems plausible that turning millions of citizens into criminals would undermine respect for the law, but is this really the case? Perhaps ordinary citizens are capable of distinguishing between those laws that cohere with social norms and those that don’t. Thus, criminalizing P2P filesharing might actually sensitize millions of Americans to the phenomenon of overcriminalization – using the law to criminalize behavior that is accepted by prevailing social norms. Is it necessarily the case that this is a bad thing? I believe it is, but I don’t know how to prove that thesis.
Copynorms are important for another reason, which Free Culture barely touches upon. When there is a mismatch between social norms and legal norms, then the enforcement of legal norms may become difficult or impossible. Nearly two-thirds of P2P users report that they simply do not care that P2P filesharing is unlawful. n107 Of course, the law can deter copyright violations by threats of financial penalties or imprisonment, but contrary social norms have a way of undermining such enforcement efforts. Prosecutors are unlikely to view prosecution of teenagers and college students as a high priority – given the social perception that their use of P2P filesharing is normal and acceptable behavior. Even civil actions may be undermined by judges or juries who simply do not believe that P2P filesharing is a serious wrong. One of the great virtues of Lessig’s norm entrepreneurship is that it explicitly focuses our attention on the crucial importance of copynorms to the future of copyright law.
IX. Eldred v. Ashcroft
Lessig argued Eldred v. Ashcroft n108 in the Supreme Court. He lost, but many readers will be intrigued by Free Culture because it contains an extensive postmortem on the case. Eldred was about the Copyright Term Extension Act (CTEA), n109 the eleventh extension of copyright terms in forty years. Because of the CTEA, virtually no works will pass into the public domain until the year 2019. That’s because when Congress extends [*1166] copyright terms, it usually does so both prospectively to works not yet created, and retroactively, to works that are already in existence. Since Congress has done this multiple times, Lessig argues that Congress has violated the constitutional requirement that copyright terms be for “limited times”: n110 “If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids – perpetual terms “on the installment plan,’ as Professor Peter Jaszi so nicely put it.” n111
Lessig then turns back the clock and takes us inside the reasoning that led him to argue Eldred as he did. Lessig believed that the Rehnquist Court might well strike the CTEA down. His reasoning was based in part on the so-called New Federalism cases in which the Court struck down the Gun Free School Zones Act and the Violence Against Women Act on the basis that these statutes exceeded Congress’s power under the Commerce Clause of the Constitution. n112 Lessig argued that the CTEA similarly exceeded Congress’s power under Article I, Section 8, Clause 8, and that it should therefore be found unconstitutional. n113
And there certainly was a connection between the issue in Eldred and the New Federalism cases, but there were differences as well. When the Supreme Court struck down the federal statutes at issue in Lopez and Morrison, states were free to fill in the gap. But the states would not have been free to act in the gap left open if Lessig had persuaded the Court in Eldred. States could not extend copyright terms, either prospectively or retrospectively. The New Federalism cases are about limiting congressional power, but they are also about enhancing state power. In other words, there are principled distinctions between the New Federalism cases and Eldred.
Lessig then makes an important point about commercial value and the public domain. Lessig states that retroactive copyright extension applies to all works, whether they are being exploited commercially or not and that most of the works that would now be entering the public domain have no commercial value. n114 In fact, that’s a massive understatement. Only a tiny fraction of the works that are covered by the CTEA have any commercial value at all. Almost all of the films, novels, magazines, newspapers, sound recordings, and other works from the 1920s are entirely dormant. Indeed, [*1167] many of these properties now have fragmented or untraceable ownership. n115 But the CTEA effectively prevents these commercially worthless works from being digitized and stored for posterity. Lessig doesn’t use this phrase, but I will: This is a crime against human culture. It is shocking and even evil.
Lessig then arrives at the great obstacle to his challenge to retroactive extensions of copyright – historical practice:
The argument on the government’s side came down to this: Congress has done it before. It should be allowed to do it again. The government claimed that from the very beginning, Congress has been extending the term of existing copyrights. So, the government argued, the Court should not now say that practice is unconstitutional.
There was some truth to the government’s claim, but not much. We certainly agreed that Congress had extended existing terms in 1831 and in 1909. And of course, in 1962, Congress began extending existing terms regularly – eleven times in forty years.
But this “consistency” should be kept in perspective. Congress extended existing terms once in the first hundred years of the Republic. It then extended existing terms once again in the next fifty. Those rare extensions are in contrast to the now regular practice of extending existing terms. Whatever restraint Congress had had in the past, that restraint was now gone. Congress was now in a cycle of extensions; there was no reason to expect that cycle would end. This Court had not hesitated to intervene where Congress was in a similar cycle of extension. There was no reason it couldn’t intervene here. n116
Lessig underestimates the power of the historical practice argument. The role of precedent and practice in constitutional theory is much disputed. Some believe that historical practice is of virtually no relevance to constitutional meaning. We must do what the Constitution says – it is argued – and the fact that the Constitution has been violated for a very long time is no excuse for continuing violations. Intellectually, that is a powerful position. Of course, many constitutional theorists disregard historical practice for a quite different reason. If you are a constitutional progressive and believe that the living Constitution should be an instrument for the promotion of social progress, then you won’t care much for historical practice. But the Supreme Court does care about historical practice. Given that retroactive extensions have been around for more than 170 years, the Court would be very unlikely to strike them down, so long as the Constitution could be reasonably construed to permit them. And Lessig’s problem was that the Constitution could be construed to permit retroactive [*1168] extensions – so long as there is some enforceable upper limit beyond which Congress cannot go, retroactive extensions are consistent with the notion of “limited times.” I think that Lessig’s litigation strategy was brilliant, and I think that he had a chance to win. But with the benefit of hindsight, I now believe that the focus on retroactivity and the short shrift given to historical practice was a mistake. n117
Lessig had another option available. He could have argued that Congress had done something unprecedented; it had, for the very first time, exceeded the constitutional requirement that copyright be granted for limited times. But isn’t 120 years or the author’s life plus 70 years a “limited time?” n118 I don’t think so. I believe that the phrase “limited times” must be interpreted in context, that is, in the context of granting rights to authors. Authors are humans; they live for decades, not centuries. Terms that are in excess of the longest human lives are not “limited times” in this context. n119
X. Back to the Future
After telling the tale of Eric Eldred, Lessig actually has a proposal to make. He suggests that we might require a $ 1 registration fee to continue a copyright after fifty years. n120 This is a terrific idea, although given Lessig’s arguments, it is surprisingly modest. First, it is unclear why Lessig would allow a fifty-year period before requiring reregistration. Reregistration could be required periodically – perhaps as frequently as every ten years starting ten years after the initial registration, and the fee could be nontrivial (perhaps $ 100 indexed for inflation in $ 25 increments).
Perhaps the reason for Lessig’s modesty was his realization that even a very modest proposal faced tremendous political obstacles. Lessig’s proposal got quite a bit of attention, n121 but the MPAA squashed it like a bug. n122 The MPAA offered a variety of reasons for their opposition to the reregistration requirement, n123 but the real reason is quite simple. Inevitably, someone will screw up, and a valuable motion picture will pass into the [*1169] public domain when the fifty-year period expires. Lessig’s proposal offered nothing to the film industry, and it imposed a small (but not insignificant) cost. So it went down in flames.
The rest of Lessig’s positive program is contained in the afterword of Free Culture. His vision of the future begins with the model offered by the open-source software movement:
In 1984, [Richard] Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds’s “Linux” kernel was added to produce the GNU/Linux operating system.
Stallman’s technique was to use copyright law to build a world of software that must be kept free. Software licensed under the Free Software Foundation’s GPL cannot be modified and distributed unless the source code for that software is made available as well. Thus, anyone building upon GPL’d software would have to make their buildings free as well. This would assure, Stallman believed, that an ecology of code would develop that remained free for others to build upon. His fundamental goal was freedom; innovative creative code was a byproduct.
Stallman was thus doing for software what privacy advocates now do for privacy. He was seeking a way to rebuild a kind of freedom that was taken for granted before. Through the affirmative use of licenses that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed. n124
The open-source software movement is the model for Lessig’s Creative Commons:
The same strategy could be applied to culture, as a response to the increasing control effected through law and technology.
Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at Stanford University. Its aim is to build a layer of reasonable copyright on top of the extremes that now reign. It does this by making it easy for people to build upon other people’s work, by making it simple for creators to express the freedom for others to take and build upon their work. Simple tags, tied to human-readable descriptions, tied to bulletproof licenses, make this possible. n125
Why will for-profit publishers, the recording industry, and the motion picture industry give away their product? Lessig suggests that the free [*1170] downloads might stimulate sales enough to actually increase the profits of publishers, but he offers only anecdotal evidence in support of this conclusion. n126 While it seems quite likely that free digital giveaways might play some role in the promotion of motion pictures, music, and books, it also seems unlikely that the giveaway will become the norm.
Lessig makes a variety of other proposals, including, importantly, shorter copyright terms. Lessig also proposes some kind of mandatory licensing scheme for content that is no longer “in print.” And what about the P2P problem? Lessig endorses the kind of scheme suggested in various forms by Neil Netanel, William Fisher, and others:
The idea would be a modification of a proposal that has been floated by Harvard law professor William Fisher. Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission would (1) be marked with a digital watermark (don’t worry about how easy it is to evade these marks; as you’ll see, there’s no incentive to evade them). Once the content is marked, then entrepreneurs would develop (2) systems to monitor how many items of each content were distributed. On the basis of those numbers, then (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax. n127
Lessig believes that if adopted this system would eventually fade away, replaced by some form of the iTunes model, with prices driven down by competition. Why use iTunes when P2P filesharing is free? Because iTunes is easier to use. If prices go down – to fifty cents or twenty-five cents or even ten cents per song – then the incentive to use the for-pay systems, rather than P2P systems, will grow. In this regard, it is very important to remember that price competition does work for copyrighted works. In the days before P2P filesharing, if the latest CD by the most popular group cost too much, consumers would simply purchase another CD. In the new world of for-pay online music, there will be price competition because there is substantial cross-elasticity of demand between and among various musical recordings.
XI. And in the End
Free Culture is an easy read but not an easy book to understand in a deep way. Lessig tells lots of stories, some of which I have recounted, but most of which I’ve passed over in this Review. The stories are well told and moving, but it is not always easy to be sure about their morals. The moral of a story is the argument for which it stands, and unless the moral is spelled out [*1171] with precision, it will usually be ambiguous. Free Culture is a deeply ambiguous book. It is very clear what Lessig is against. He is against the big media companies. He is against the expansion of copyright. He is against digital lockup of content through encryption backed by the anticircumvention provisions of the Digital Millennium Copyright Act. Lessig’s stories are designed to move us to be against those things as well.
What Lessig opposes is clear, but why and what he favors instead are much murkier. There are paragraphs and even chapters in Free Culture that make interesting claims, but Lessig does not attempt to build a sustained, precise argument to compliment his stories. Lessig does make lots of proposals, but they come at the very end of the book and they are underdeveloped (and perhaps more importantly, they are not analyzed and supported by the kinds of arguments that economists, legal scholars, or policymakers need).
Books are aimed at audiences. As a norm entrepreneur, Lessig has aimed Free Culture at a very broad audience. While Free Culture is a sophisticated book, aimed at an educated and literate elite, it is not an academic book or even the equivalent of a serious policy paper aimed at Congress. He is arguing his case to the jury and not the judge. So Free Culture needs to be assessed on its own terms. It would be grossly unfair to judge Free Culture by the standards of the academy when the book was not written for academics.
Does Free Culture succeed on its own terms? Lessig is right, I think, to believe that stories are the keys to persuasion. And Free Culture offers up a brilliant collection of stories that engage our passions and pluck at our heartstrings. The broad rhetorical strategy of Free Culture has three elements. First and foremost, Lessig wants to show how an excess of intellectual property can lead to results that seem silly, pernicious, or wrong. Second, Lessig wants to argue that our legal traditions actually sanction unauthorized copying. Third, Lessig wants to show that the social forces that are pushing for further expansion of copyright, the big media companies, are the bad guys. Lessig’s stories drive each of these three points home. When read by its intended audience, Free Culture is likely to score points for its cause.
Free Culture largely accomplishes the task that it set for itself, but that is not the end of the story. There is a distinction between effective rhetoric and responsible rhetoric. One can persuade with good arguments and with bad arguments. Does Free Culture achieve its rhetorical effects using stories and arguments that illuminate the future of copyright? Or did Lessig go over the top and take the cheap shots? As much as I admire Lessig and his book, the answer to these questions must be, “A little bit of both.” Free Culture tells stories that are deeply illuminating, but it also avails itself of stories that seem calculated to drive home ad hominem attacks. The struggle over the [*1172] future of copyright can be painted as the good guys versus the bad guys, but that way of framing the issues does little to enlighten and much to obscure the real and very tough questions that need to be answered.
Yet the rhetoric of Free Culture does not exist in a vacuum. This Review is obviously not the place for a careful examination of the rhetoric employed on both sides of the copyfight, but I can offer my own opinion. And it is my opinion that there have been plenty of rhetorical excesses on all sides of the copyright debates. In this context, Free Culture is actually a model of restraint. Lessig manages to present an account that, while opinionated, is nuanced, fair, and balanced given the overheated rhetoric that, in my judgment, is typical.
Read Free Culture. If you are an intellectual property scholar or lawyer, you may be frustrated by the gaps and leaps in Lessig’s arguments, but you will be enlightened and entertained. If you are not an intellectual property specialist, then you are in for a wild ride. Lessig has written an intelligent, entertaining, and moving book. Oh, and by the way, you can download it for free. n128
n1. Roger Clarke, Information Wants to be Free … , at http://www.anu.edu.au/people/Roger.Clarke/II/IWtbF.html (last modified Aug. 28, 2001). The origin of the phrase is obscure. A precursor, “Information should be free,” has been attributed to Peter Samson, a member of the MIT Tech Model Railroad Club. “Information wants to be free” is usually attributed to Stewart Brand. Id.
n2. See Contributing to the History of Words and Ideas, JStorNews para. 3, at http://www.jstor.org/news/2000.11/words.link.html (Nov. 2000) (noting a “1952 article in the journal Ethics [that] attributes the saying to “Professor Alvin Hansen in his famous TINSTAAFL formula – “There’s no such thing as a free lunch”‘”); see also Robert Heinlein, The Moon is a Harsh Mistress (Tor 1996) (1966); Milton Friedman, There’s No Such Thing as a Free Lunch (1975). The origin of the phrase is obscure.
n3. See Peer-to-Peer, at http://en.wikipedia.org/wiki/peer-to-peer (last visited Nov. 13, 2004) (listing those five systems as implementing P2P filesharing).
n4. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 428 (1984) (holding that the sale of tape recorders and photocopying machines does not constitute contributory infringement because they are “capable of substantial noninfringing uses,” and “have substantial benefit for some purposes”).
n5. Audio Home Recording Act, Pub. L. No. 102-563, 106 Stat. 4242 (1992) (codified at 17 U.S.C. 1001-1010 (2000)).
n6. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U.S.C.).
n7. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
n8. By copyfutures, I mean to refer to the possible future states of copyright law. For the neologism “copyfutures,” see Copyfutures, at http://lsolum.typepad.com/copyfutures (last visited Nov. 13, 2004) (pointing to a blog on the future of copyright).
n9. See William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. Chi. L. Rev. 471 (2003); see also William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 210-49 (2003).
n10. See Neil Weinstock Netanel, Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing, 17 Harv. J.L. & Tech. 1 (2003).
n11. See William W. Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment 199-258 (2004) (proposing a system in which the government would pay copyright holders a share of such tax revenues based on the relative popularity of their creations).
n12. See Joseph P. Liu, Copyright and Time: A Proposal, 101 Mich. L. Rev. 409 (2002).
n13. Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129, 132 (2004).
n14. Inducing Infringement of Copyrights Act of 2004, S. 2560, 108th Cong. (2004).
n15. See Copyfight, at http://www.corante.com/copyfight/ (last visited Nov. 13, 2004) (pointing to a blog focusing on copyright issues); A Copyfighter’s Musings, at http://blogs.law.harvard.edu/cmusings/ (last visited Nov. 13, 2004) (same).
n16. The blogosphere is the interconnected world of blogs. See Blogosphere, at http://en.wikipedia.org/wiki/blogosphere (last visited Nov. 13, 2004) (defining the term).
n17. See Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (amending 17 U.S.C. 302, 304 (1994)). The Act was passed by both the House and Senate on October 7, 1998 and signed by President Clinton on October 27, 1998.
n18. 537 U.S. 186, 194 (2003).
n19. In re Aimster Copyright Litig., 334 F.3d 643, 651-63 (7th Cir. 2003) (concluding that sufficient evidence existed for a preliminary injunction against Aimster, the internet provider of a P2P filesharing service, due to a likely finding of contributory copyright infringement).
n20. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154 (9th Cir. 2004), cert. granted, 125 S. Ct. 686 (2004) (affirming a district court holding that the distributors of P2P filesharing software were not contributory copyright infringers because they did not have knowledge of the copyright infringement and did not materially contribute to the copyright infringement).
n21. Katie Dean, Senate Shelves Induce Review, Wired News, at http://www.wired.com/news/politics/0,1283,65255,00.html (Oct. 7, 2004).
n22. See Privacy & Piracy: The Paradox of Illegal File-Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry: Hearing Before the Permanent Subcomm. on Investigations of the Senate Comm. on Gov’t Affairs, 108th Cong. 82 (Sept. 30, 2003) (statement of Mitch Bainwol, Chairman & CEO, RIAA) (“The music industry has, for a number of years, undertaken a massive campaign to educate consumers regarding the illegality of the unauthorized distribution of copyrighted music online.”).
n23. See Eldred, 537 U.S. at 186.
n24. Lawrence Lessig, Code and Other Laws of Cyberspace (1999).
n25. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (2002).
n26. See Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 909 (1996) (originating the phrase “norm entrepreneur”); see also Dorothea Kbler, On the Regulation of Social Norms, 17 J.L. Econ. & Org. 449, 449-50 (2001) (developing a model analyzing how norms are influenced by “”norm entrepreneurs’ such as lawmakers, government agencies, [and] unions”), available at http://www.wiwi.hu-berlin.de/wt1/papers/2001/norms.pdf. I am grateful to David McGowan for discussion on this point.
n27. For the definition of the term “copynorm,” see Copynorms, at http://en.wikipedia.org/wiki/Copynorms (last visited Feb. 24, 2005).
n28. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004) [hereinafter Lessig, Free Culture].
n29. Id. at 13.
n30. Id. at xiv (footnote omitted).
n31. Id. at xvi.
n32. The phrase “free will” comes from the free-will/determinism debate in the philosophy of mind. The term “free” in “free will” means something like “not casually determined.” The term “free” in “free markets” means something like “not regulated.” Unregulated and undetermined are two quite different ideas.
n33. Lessig, Free Culture, supra note 28, at 1-2.
n34. Drummond v. White Oak Fuel, 140 S.E. 57, 59-61 (1927); see also 2 William Blackstone, Commentaries on the Law of England 18 (William Draper Lewis ed., 1902) (discussing the cujus est solum doctrine); 1 Edwardo Coke, Institutes of the Laws of England; Or, a Commentary upon Littleton ch. 1, 1(4)(a) (Charles Butler ed., 1832) (same); 3 James Kent, Commentaries on American Law 621 (John M. Gould ed., 14th ed. 1896) (asserting that “land” as one’s property “has an indefinite extent, upwards as well as downwards, so as to include everything terrestrial, under or over it”).
n35. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998); see also Frank I. Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1214-18 (1967) (discussing the ethical considerations that justify waiving “just compensation” for Congress’s legislating “navigable airspace” into the public domain).
n36. Of course, Congress might have created mandatory easements and then compensated property owners. Or, common law courts might have defined “sky” in a way that excluded the flyable airspace above the usable airspace.
n37. 328 U.S. 256 (1946).
n38. Id. at 261.
n39. Lessig, Free Culture, supra note 28, at 2-3.
n40. Causby, 328 U.S. at 261.
n41. See generally Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (2004).
n42. On “pumping intuitions,” see generally Daniel C. Dennett, Elbow Room: The Varieties of Free Will Worth Wanting 12 (1984) (describing the abuse by some authors of intuition pumps, which serve to focus the reader’s attention on the big picture at the expense of hard-to-follow details).
n43. Lessig, Free Culture, supra note 28, at 3-6.
n44. Id. at 12.
n45. With apologies to Terry and the Pirates, the beloved cartoon strip. For a brief introduction to the cartoon, see generally James F. Widner, Terry and the Pirates, at http://www.otr.com/terry_pirate.html (last modified Dec. 7, 2003).
n46. Lessig, Free Culture, supra note 28, at 18.
n47. Id. at 19.
n48. Id. at 21-25.
n50. Id. at 25-26.
n51. Id. at 26.
n52. Id. at 27.
n53. Id. at 31-32.
n54. Id. at 33.
n55. See generally R. H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).
n56. The real world is almost always characterized by positive transaction costs, to the profit of transactional lawyers everywhere.
n57. See Restatement (Second) of Torts 652B cmt. c (1977) (stating that there is no tort for photographing a person in public because “his appearance is public and open to the public eye”); 17 U.S.C. 120(a) (2000) (“The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”).
n58. Lessig, Free Culture, supra note 28, at 46.
n59. For a brief history of Linux, see the Linux website at http://www.linux.org/info/index.html (last visited Jan. 11, 2005).
n60. Lessig, Free Culture, supra note 28, at 47.
n61. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U.S.C.).
n62. Lessig, Free Culture, supra note 28, at 48-52.
n63. Id. at 49-50.
n64. Id. at 50.
n65. Id. at 50-52 (noting that the RIAA’s initial demand of at least $ 15 million in damages was lowered to Jordan’s life savings, $ 12 thousand, to dismiss the case).
n66. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984) (holding that the sale of copying equipment does not constitute contributory infringement if it is “capable of substantial noninfringing uses”).
n67. Lessig, Free Culture, supra note 28, at 51-52.
n68. Id. at 53.
n69. Id. at 53-55.
n70. Id. at 56 (footnotes omitted).
n71. Id. at 56-57.
n72. Netanel, supra note 10, at 4-7.
n73. See generally Dennett, supra note 42, at 12 (explaining “pumping of intuitions”).
n74. Lessig, Free Culture, supra note 28, at 63.
n76. Cf. Dire Straits, Money for Nothing, on Brothers in Arms (Warner Bros. 1985).
n77. Lessig, Free Culture, supra note 28, at 67.
n78. Id. at 68-69.
n79. Id. at 68.
n80. Id. at 69 (footnote omitted).
n81. Id. at 73.
n82. Id. at 70.
n83. Id. at 72.
n85. Id. at 74-78 (“The history of American law has been a process of balance… . In this adjustment, the law sought to ensure the legitimate rights of creators while protecting innovation.”).
n86. Id. at 74-75.
n87. Id. at 55-57.
n88. Id. at 95-99.
n89. See, e.g., Sandoval v. New Line Cinema Corp., 147 F.3d 215, 218 (2d Cir. 1998) (holding that the use of 35.6 seconds of artwork displayed in a motion picture was de minimis use because it appeared fleetingly, was obscured, and was severely out of focus); Elsmere Music, Inc. v. Nat’l Broad. Co., 482 F. Supp. 741, 747 (S.D.N.Y. 1980) (holding that the copying of four notes and two words from 100 musical measures and 45 words was fair use). But cf. Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 78-81 (2d Cir. 1997) (holding that the appearance of an artistic work in a set decoration in several brief clips of a television program totaling 26.75 seconds was not a protected de minimus use).
n90. Lessig, Free Culture, supra note 28, at 99.
n91. Id. at 117 (quoting Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 97th Cong. 65 (1982) (testimony of Jack Valenti)).
n92. Id. at 118.
n93. Id. at 119-20.
n94. Id. at 120.
n95. Id. at 1-3; see supra notes 33-42 and accompanying text.
n96. Lessig, Free Culture, supra note 28, at 121.
n97. Id. at 122.
n100. Id. at 125.
n102. Id. at 126.
n103. Id. at 143-44.
n104. Id. at 151 (footnote omitted).
n105. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U.S.C.).
n106. Lessig, Free Culture, supra note 28, at 201.
n107. Memoranda from Mary Madden & Amanda Lenhart, Music Downloading, File-Sharing and Copyright, Pew Internet & American Life Project (July 2003) (“Data gathered from Pew Internet & American Life Project surveys fielded during March – May of 2003 show that a striking 67% of Internet users who download music say they do not care about whether the music they have downloaded is copyrighted.”), available at http://www.pewinternet.org/pdfs/PIP_Copyright_Memo.pdf.
n108. 537 U.S. 186 (2003).
n109. Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (codified as amended in scattered sections of 17 U.S.C.).
n110. U.S. Const. art. I, 8, cl. 8.
n111. Lessig, Free Culture, supra note 28, at 215-16.
n112. United States v. Morrison, 529 U.S. 598 (2000) (striking down the Gun Free School Zones Act); United States v. Lopez, 514 U.S. 549 (1995) (striking down the Violence Against Women Act).
n113. Lessig, Free Culture, supra note 28, at 219-20.
n114. Id. at 221.
n115. Id. at 221-22 (recognizing that only 2% of copyrighted work produced between 1923 and 1943 has any commercial value and attributing the difficulty of determining the ownership of these works to the lack of a coherent list of copyright owners from this time).
n116. Id. at 236.
n117. There is an irony here. In Eldred, Lessig gave tradition and historical practice short shrift. In Free Culture, Lessig overplays the role of tradition and historical practice.
n118. Congress has provided that a copyright shall “endure for a term consisting of the life of the author and 70 years after the author’s death.” 17 U.S.C. 302(a) (2000).
n119. Cf. Lawrence B. Solum, Congress’s Power to Promote the Progress of Science: Eldred v. Ashcroft, 36 Loy. L.A. L. Rev. 1, 27-38 (2002).
n120. Lessig, Free Culture, supra note 28, at 248-49.
n121. See, e.g., Brian Krebs, Bill Seeks to Loosen Copyright Law’s Grip, WashingtonPost.com, at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A32488-2003Jun25 (June 25, 2003); Steve Forbes, Fact and Comment, Forbes, Mar. 31, 2003, at 27-28 (praising Lessig’s proposal as a “patently good idea”), available at http://www.forbes.com/global/2003/0331/009.html.
n122. See Lessig, Free Culture, supra note 28, at 253-54 (explaining that after a draft bill of Lessig’s proposal was submitted, the MPAA lobbied successfully against it).
n124. Id. at 280.
n125. Id. at 282.
n126. See, e.g., id. at 112 (providing an example of a for-profit stock-movie company that, after making “a significant chunk [of the movie clips] available for free,” saw its “stock footage sales [go] up dramatically”).
n127. Id. at 301 (footnote omitted).
n128. Larry Lessig, Free Content, at http://www.free-culture.cc/freecontent/ (last visited Feb. 21, 2005).