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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.
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Free Culture
Lawrence Lessig
This version of Free Culture is licensed under a Creative Commons license. This license permits
non-commercial use of this work, so long as attribution is given.
visit http://creativecommons.org/licenses/by-nc/1.0/
FREE CULTURE
PREFACE
FREE CULTURE
INTRODUCTION
“PIRACY”
CHAPTER ONE: Creators
CHAPTER TWO: “Mere Copyists”
CHAPTER THREE: Catalogs
CHAPTER FOUR: “Pirates”
CHAPTER FIVE: “Piracy”
“PROPERTY”
CHAPTER SIX: Founders
CHAPTER SEVEN: Recorders
CHAPTER EIGHT: Transformers
CHAPTER NINE: Collectors
CHAPTER TEN: “Property”
PUZZLES
CHAPTER ELEVEN: Chimera
CHAPTER TWELVE: Harms
BALANCES
CHAPTER THIRTEEN: Eldred
CHAPTER FOURTEEN: Eldred II
CONCLUSION
AFTERWORD
NOTES
ACKNOWLEDGMENTS
INDEX
ABOUT THE AUTHOR
This version of Free Culture is licensed under a Creative Commons license. This license permits
non-commercial use of this work, so long as attribution is given.
visit http://creativecommons.org/licenses/by-nc/1.0/
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This version of Free Culture is licensed under a Creative Commons license. This license permits
non-commercial use of this work, so long as attribution is given.
For more information about the license, visit http://creativecommons.org/licenses/by-nc/1.0/.
FREE CULTURE
ALSO BY LAWRENCE LESSIG
The Future of Ideas: The Fate of the Commons in a Connected World
Code: And Other Laws of Cyberspace
THE PENGUIN PRESS
NEW YORK 2004
FREE CULTURE
HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL
CREATIVITY
LAWRENCE LESSIG
THE PENGUIN PRESS
a member of
Penguin Group (USA) Inc. 375 Hudson Street
New York, New York 10014
Copyright © Lawrence Lessig, 2004
All rights reserved
Excerpt from an editorial titled “The Coming of Copyright Perpetuity,” The New York Times, January 16, 2003.
Copyright © 2003 by The New York Times Co. Reprinted with permission.
Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
All rights reserved. Reprinted with permission.
Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
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Library of Congress Cataloging-in-Publication Data
Lessig, Lawrence.
Free culture : how big media uses technology and the law to lock down culture and control creativity / Lawrence
Lessig.
p. cm.
Includes index.
ISBN 1-59420-006-8 (hardcover)
1. Intellectual property—United States. 2. Mass media—United States.
3. Technological innovations—United States. 4. Art—United States. I. Title.
KF2979.L47 2004 343.7309'9—dc22 2003063276
This book is printed on acid-free paper.
Printed in the United States of America 1 3 5 7 9 10 8 6 4 2
Designed by Marysarah Quinn
Without limiting the rights under copyright reserved above, no part of this publication may be reproduced,
stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic,
mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright
owner and the above publisher of this book.
The scanning, uploading, and distribution of this book via the Internet or via any other means without the
permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions
and do not participate in or encourage electronic piracy of copyrighted materials. Your support of the author's
rights is appreciated.
To Eric Eldred—whose work first drew me to this cause, and for whom it continues still.
CONTENTS
PREFACE xiii
INTRODUCTION 1
“PIRACY” 15
CHAPTER ONE: Creators 21
CHAPTER TWO: “Mere Copyists” 31
CHAPTER THREE: Catalogs 48
CHAPTER FOUR: “Pirates” 53
Film 53
Recorded Music 55 Radio 58
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Cable TV 59
CHAPTER FIVE: “Piracy” 62
Piracy I 63
Piracy II 66
“PROPERTY” 81
CHAPTER SIX: Founders 85
CHAPTER SEVEN: Recorders 95
CHAPTER EIGHT: Transformers 100
CHAPTER NINE: Collectors 108
CHAPTER TEN: “Property” 116
Why Hollywood Is Right 124
Beginnings 130
Law: Duration 133
Law: Scope 136
Law and Architecture: Reach 139
Architecture and Law: Force 147
Market: Concentration 161
Together 168
PUZZLES 175
CHAPTER ELEVEN: Chimera 177
CHAPTER TWELVE: Harms 183
Constraining Creators 184
Constraining Innovators 188 Corrupting Citizens 199
BALANCES 209
CHAPTER THIRTEEN: Eldred 213
CHAPTER FOURTEEN: Eldred II 248
CONCLUSION 257
AFTERWORD 273
Us, Now 276
Rebuilding Freedoms Previously Presumed:
Examples 277
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Rebuilding Free Culture: One Idea 282
Them, Soon 287
1. More Formalities 287
Registration and Renewal 289 Marking 290
2. Shorter Terms 292
3. Free Use Vs. Fair Use 294
4. Liberate the Music—Again 296
5. Fire Lots of Lawyers 304
NOTES 307
ACKNOWLEDGMENTS 331
INDEX 333
PREFACE
At the end of his review of my first book, Code: And Other Laws of Cyberspace, David Pogue, a brilliant writer
and author of countless technical and computer-related texts, wrote this:
Unlike actual law, Internet software has no capacity to punish. It doesn't affect people who aren't online (and
only a tiny minority of the world population is). And if you don't like the Internet's system, you can always flip
off the modem.
1
Pogue was skeptical of the core argument of the book—that software, or “code,” functioned as a kind of
law—and his review suggested the happy thought that if life in cyberspace got bad, we could always “drizzle,
drazzle, druzzle, drome"-like simply flip a switch and be back home. Turn off the modem, unplug the computer,
and any troubles that exist in that space wouldn't “affect” us anymore.
Pogue might have been right in 1999—I'm skeptical, but maybe. But even if he was right then, the point is not
right now: Free Culture is about the troubles the Internet causes even after the modem is turned off. It is an
argument about how the battles that now rage regarding life on-line have fundamentally affected “people who
aren't online.” There is no switch that will insulate us from the Internet's effect.
But unlike Code, the argument here is not much about the Internet itself. It is instead about the consequence of
the Internet to a part of our tradition that is much more fundamental, and, as hard as this is for a geek-wanna-be
to admit, much more important.
That tradition is the way our culture gets made. As I explain in the pages that follow, we come from a tradition
of “free culture”—not “free” as in “free beer” (to borrow a phrase from the founder of the free- software
movement
2
), but “free” as in “free speech,”
“free markets,”
“free trade,”
“free enterprise,”
“free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this
directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to
guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free
culture is not a culture without property, just as a free market is not a market in which everything is free. The
opposite of a free culture is a “permission culture”—a culture in which creators get to create only with the
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permission of the powerful, or of creators from the past.
If we understood this change, I believe we would resist it. Not “we" on the Left or “you” on the Right, but we
who have no stake in the particular industries of culture that defined the twentieth century. Whether you are on
the Left or the Right, if you are in this sense disinterested, then the story I tell here will trouble you. For the
changes I describe affect values that both sides of our political culture deem fundamental.
We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC considered changes in
media ownership rules that would relax limits on media concentration, an extraordinary coalition generated
more than 700,000 letters to the FCC opposing the change. As William Safire described marching
“uncomfortably alongside CodePink Women for Peace and the National Rifle Association, between liberal
Olympia Snowe and conservative Ted Stevens,” he formulated perhaps most simply just what was at stake: the
concentration of power. And as he asked,
Does that sound unconservative? Not to me. The concentration of power—political, corporate, media,
cultural—should be anathema to conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and the greatest expression of
democracy.
3
This idea is an element of the argument of Free Culture, though my focus is not just on the concentration of
power produced by concentrations in ownership, but more importantly, if because less visibly, on the
concentration of power produced by a radical change in the effective scope of the law. The law is changing; that
change is altering the way our culture gets made; that change should worry you—whether or not you care about
the Internet, and whether you're on Safire's left or on his right.
The inspiration for the title and for much of the argument of this book comes from the work of Richard
Stallman and the Free Software Foundation. Indeed, as I reread Stallman's own work, especially the essays in
Free Software, Free Society, I realize that all of the theoretical insights I develop here are insights Stallman
described decades ago. One could thus well argue that this work is “merely" derivative.
I accept that criticism, if indeed it is a criticism. The work of a lawyer is always derivative, and I mean to do
nothing more in this book than to remind a culture about a tradition that has always been its own. Like Stallman,
I defend that tradition on the basis of values. Like Stallman, I believe those are the values of freedom. And like
Stallman, I believe those are values of our past that will need to be defended in our future. A free culture has
been our past, but it will only be our future if we change the path we are on right now.
Like Stallman's arguments for free software, an argument for free culture stumbles on a confusion that is hard to
avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which
artists don't get paid. A culture without property, or in which creators can't get paid, is anarchy, not freedom.
Anarchy is not what I advance here.
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.
FREE CULTURE
INTRODUCTION
On December 17, 1903, on a windy North Carolina beach for just shy of one hundred seconds, the Wright
brothers demonstrated that a heavier-than-air, self-propelled vehicle could fly. The moment was electric and its
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importance widely understood. Almost immediately, there was an explosion of interest in this newfound
technology of manned flight, and a gaggle of innovators began to build upon it.
At the time the Wright brothers invented the airplane, American law held that a property owner presumptively
owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space
above, to “an indefinite extent, upwards.”
1
For many years, scholars had puzzled about how best to interpret the
idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese
for their willful and regular trespass?
Then came airplanes, and for the first time, this principle of American law—deep within the foundations of our
tradition, and acknowledged by the most important legal thinkers of our past—mattered. If my land reaches to
the heavens, what happens when United flies over my field? Do I have the right to banish it from my property?
Am I allowed to enter into an exclusive license with Delta Airlines? Could we set up an auction to decide how
much these rights are worth?
In 1945, these questions became a federal case. When North Carolina farmers Thomas Lee and Tinie Causby
started losing chickens because of low-flying military aircraft (the terrified chickens apparently flew into the
barn walls and died), the Causbys filed a lawsuit saying that the government was trespassing on their land. The
airplanes, of course, never touched the surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had
said, their land reached to “an indefinite extent, upwards,” then the government was trespassing on their
property, and the Causbys wanted it to stop.
The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's
property really extended to the heavens, then Congress's declaration could well have been an unconstitutional
“taking” of property without compensation. The Court acknowledged that “it is ancient doctrine that common
law ownership of the land extended to the periphery of the universe.” But Justice Douglas had no patience for
ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the
Court,
[The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared.
Were that not true, every transcontinental flight would subject the operator to countless trespass suits.
Common sense revolts at the idea. To recognize such private claims to the airspace would clog these
highways, seriously interfere with their control and development in the public interest, and transfer into
private ownership that to which only the public has a just claim.
2
“Common sense revolts at the idea.
This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It
was Douglas's style not to dither. Other justices would have blathered on for pages to reach the conclusion that
Douglas holds in a single line: “Common sense revolts at the idea.” But whether it takes pages or a few words, it
is the special genius of a common law system, as ours is, that the law adjusts to the technologies of the time.
And as it adjusts, it changes. Ideas that were as solid as rock in one age crumble in another.
Or at least, this is how things happen when there's no one powerful on the other side of the change. The Causbys
were just farmers. And though there were no doubt many like them who were upset by the growing traffic in the
air (though one hopes not many chickens flew themselves into walls), the Causbys of the world would find it
very hard to unite and stop the idea, and the technology, that the Wright brothers had birthed. The Wright
brothers spat airplanes into the technological meme pool; the idea then spread like a virus in a chicken coop;
farmers like the Causbys found themselves surrounded by “what seemed reasonable" given the technology that
the Wrights had produced. They could stand on their farms, dead chickens in hand, and shake their fists at these
newfangled technologies all they wanted. They could call their representatives or even file a lawsuit. But in the
end, the force of what seems “obvious” to everyone else—the power of “common sense”—would prevail. Their
“private interest” would not be allowed to defeat an obvious public gain.
Edwin Howard Armstrong
is one of America's forgotten inventor geniuses. He came to the great American inventor scene just after the
titans Thomas Edison and Alexander Graham Bell. But his work in the area of radio technology was perhaps the
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most important of any single inventor in the first fifty years of radio. He was better educated than Michael
Faraday, who as a bookbinder's apprentice had discovered electric induction in 1831. But he had the same
intuition about how the world of radio worked, and on at least three occasions, Armstrong invented profoundly
important technologies that advanced our understanding of radio.
On the day after Christmas, 1933, four patents were issued to Armstrong for his most significant invention—FM
radio. Until then, consumer radio had been amplitude-modulated (AM) radio. The theorists of the day had said
that frequency-modulated (FM) radio could never work. They were right about FM radio in a narrow band of
spectrum. But Armstrong discovered that frequency-modulated radio in a wide band of spectrum would deliver
an astonishing fidelity of sound, with much less transmitter power and static.
On November 5, 1935, he demonstrated the technology at a meeting of the Institute of Radio Engineers at the
Empire State Building in New York City. He tuned his radio dial across a range of AM stations, until the radio
locked on a broadcast that he had arranged from seventeen miles away. The radio fell totally silent, as if dead,
and then with a clarity no one else in that room had ever heard from an electrical device, it produced the sound
of an announcer's voice: “This is amateur station W2AG at Yonkers, New York, operating on frequency
modulation at two and a half meters.”
The audience was hearing something no one had thought possible:
A glass of water was poured before the microphone in Yonkers; it sounded like a glass of water being
poured. . . . A paper was crumpled and torn; it sounded like paper and not like a crackling forest fire. . . .
Sousa marches were played from records and a piano solo and guitar number were performed. . . . The
music was projected with a live-ness rarely if ever heard before from a radio “music box.”
3
As our own common sense tells us, Armstrong had discovered a vastly superior radio technology. But at the
time of his invention, Armstrong was working for RCA. RCA was the dominant player in the then dominant
AM radio market. By 1935, there were a thousand radio stations across the United States, but the stations in
large cities were all owned by a handful of networks.
RCA's president, David Sarnoff, a friend of Armstrong's, was eager that Armstrong discover a way to remove
static from AM radio. So Sarnoff was quite excited when Armstrong told him he had a device that removed
static from “radio.” But when Armstrong demonstrated his invention, Sarnoff was not pleased.
I thought Armstrong would invent some kind of a filter to remove static from our AM radio. I didn't think he'd
start a revolution— start up a whole damn new industry to compete with RCA.
4
Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM
radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author
described,
The forces for FM, largely engineering, could not overcome the weight of strategy devised by the sales,
patent, and legal offices to subdue this threat to corporate position. For FM, if allowed to develop
unrestrained, posed . . . a complete reordering of radio power . . . and the eventual overthrow of the
carefully restricted AM system on which RCA had grown to power.
5
RCA at first kept the technology in house, insisting that further tests were needed. When, after two years of
testing, Armstrong grew impatient, RCA began to use its power with the government to stall FM radio's
deployment generally. In 1936, RCA hired the former head of the FCC and assigned him the task of assuring
that the FCC assign spectrum in a way that would castrate FM—principally by moving FM radio to a different
band of spectrum. At first, these efforts failed. But when Armstrong and the nation were distracted by World
War II, RCA's work began to be more successful. Soon after the war ended, the FCC announced a set of policies
that would have one clear effect: FM radio would be crippled. As Lawrence Lessing described it,
The series of body blows that FM radio received right after the war, in a series of rulings manipulated
through the FCC by the big radio interests, were almost incredible in their force and deviousness.
6
To make room in the spectrum for RCA's latest gamble, television, FM radio users were to be moved to a totally
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new spectrum band. The power of FM radio stations was also cut, meaning FM could no longer be used to beam
programs from one part of the country to another. (This change was strongly supported by AT&T, because the
loss of FM relaying stations would mean radio stations would have to buy wired links from AT&T.) The spread
of FM radio was thus choked, at least temporarily.
Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's patents. After incorporating FM
technology into the emerging standard for television, RCA declared the patents invalid—baselessly, and almost
fifteen years after they were issued. It thus refused to pay him royalties. For six years, Armstrong fought an
expensive war of litigation to defend the patents. Finally, just as the patents expired, RCA offered a settlement
so low that it would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954
Armstrong wrote a short note to his wife and then stepped out of a thirteenth- story window to his death.
This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes,
this is how it works. From the beginning, government and government agencies have been subject to capture.
They are more likely captured when a powerful interest is threatened by either a legal or technical change. That
powerful interest too often exerts its influence within the government to get the government to protect it. The
rhetoric of this protection is of course always public spirited; the reality is something different. Ideas that were
as solid as rock in one age, but that, left to themselves, would crumble in another, are sustained through this
subtle corruption of our political process. RCA had what the Causbys did not: the power to stifle the effect of
technological change.
There's no single inventor of the Internet. Nor is there any good date upon which to mark its birth. Yet in a very
short time, the Internet has become part of ordinary American life. According to the Pew Internet and American
Life Project, 58 percent of Americans had access to the Internet in 2002, up from 49 percent two years before.
7
That number could well exceed two thirds of the nation by the end of 2004.
As the Internet has been integrated into ordinary life, it has changed things. Some of these changes are
technical—the Internet has made communication faster, it has lowered the cost of gathering data, and so on.
These technical changes are not the focus of this book. They are important. They are not well understood. But
they are the sort of thing that would simply go away if we all just switched the Internet off. They don't affect
people who don't use the Internet, or at least they don't affect them directly. They are the proper subject of a
book about the Internet. But this is not a book about the Internet.
Instead, this book is about an effect of the Internet beyond the Internet itself: an effect upon how culture is
made. My claim is that the Internet has induced an important and unrecognized change in that process. That
change will radically transform a tradition that is as old as the Republic itself. Most, if they recognized this
change, would reject it. Yet most don't even see the change that the Internet has introduced.
We can glimpse a sense of this change by distinguishing between commercial and noncommercial culture, and
by mapping the law's regulation of each. By “commercial culture” I mean that part of our culture that is
produced and sold or produced to be sold. By noncommercial culture” I mean all the rest. When old men sat
around parks or on street corners telling stories that kids and others consumed, that was noncommercial culture.
When Noah Webster published his “Reader,” or Joel Barlow his poetry, that was commercial culture.
At the beginning of our history, and for just about the whole of our tradition, noncommercial culture was
essentially unregulated. Of course, if your stories were lewd, or if your song disturbed the peace, then the law
might intervene. But the law was never directly concerned with the creation or spread of this form of culture,
and it left this culture “free.” The ordinary ways in which ordinary individuals shared and transformed their
culture—telling stories, reenacting scenes from plays or TV, participating in fan clubs, sharing music, making
tapes—were left alone by the law.
The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the
incentives of creators by granting them exclusive rights to their creative work, so that they could sell those
exclusive rights in a commercial marketplace.
8
This is also, of course, an important part of creativity and
culture, and it has become an increasingly important part in America. But in no sense was it dominant within our
tradition. It was instead just one part, a controlled part, balanced with the free.
This rough divide between the free and the controlled has now been erased.
9
The Internet has set the stage for
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this erasure and, pushed by big media, the law has now affected it. For the first time in our tradition, the
ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law,
which has expanded to draw within its control a vast amount of culture and creativity that it never reached
before. The technology that preserved the balance of our history—between uses of our culture that were free and
uses of our culture that were only upon permission—has been undone. The consequence is that we are less and
less a free culture, more and more a permission culture.
This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely
its motivation. But the protectionism that justifies the changes that I will describe below is not the limited and
balanced sort that has defined the law in the past. This is not a protectionism to protect artists. It is instead a
protectionism to protect certain forms of business. Corporations threatened by the potential of the Internet to
change the way both commercial and noncommercial culture are made and shared have united to induce
lawmakers to use the law to protect them. It is the story of RCA and Armstrong; it is the dream of the Causbys.
For the Internet has unleashed an extraordinary possibility for many to participate in the process of building and
cultivating a culture that reaches far beyond local boundaries. That power has changed the marketplace for
making and cultivating culture generally, and that change in turn threatens established content industries. The
Internet is thus to the industries that built and distributed content in the twentieth century what FM radio was to
AM radio, or what the truck was to the railroad industry of the nineteenth century: the beginning of the end, or at
least a substantial transformation. Digital technologies, tied to the Internet, could produce a vastly more
competitive and vibrant market for building and cultivating culture; that market could include a much wider and
more diverse range of creators; those creators could produce and distribute a much more vibrant range of
creativity; and depending upon a few important factors, those creators could earn more on average from this
system than creators do today—all so long as the RCAs of our day don't use the law to protect themselves
against this competition.
Yet, as I argue in the pages that follow, that is precisely what is happening in our culture today. These
modern-day equivalents of the early twentieth-century radio or nineteenth-century railroads are using their
power to get the law to protect them against this new, more efficient, more vibrant technology for building
culture. They are succeeding in their plan to remake the Internet before the Internet remakes them.
It doesn't seem this way to many. The battles over copyright and the Internet seem remote to most. To the few
who follow them, they seem mainly about a much simpler brace of questions—whether “piracy” will be
permitted, and whether “property” will be protected. The “war” that has been waged against the technologies of
the Internet—what Motion Picture Association of America (MPAA) president Jack Valenti calls his “own
terrorist war”
10
—has been framed as a battle about the rule of law and respect for property. To know which side
to take in this war, most think that we need only decide whether we're for property or against it.
If those really were the choices, then I would be with Jack Valenti and the content industry. I, too, am a believer
in property, and especially in the importance of what Mr. Valenti nicely calls “creative property.” I believe that
“piracy” is wrong, and that the law, properly tuned, should punish “piracy,” whether on or off the Internet.
But those simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is
that unless we come to see this change, the war to rid the world of Internet “pirates” will also rid our culture of
values that have been integral to our tradition from the start.
These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to
build freely upon their past, and protected creators and innovators from either state or private control. The First
Amendment protected creators against state control. And as Professor Neil Netanel powerfully argues,
11
copyright law, properly balanced, protected creators against private control. Our tradition was thus neither
Soviet nor the tradition of patrons. It instead carved out a wide berth within which creators could cultivate and
extend our culture.
Yet the law's response to the Internet, when tied to changes in the technology of the Internet itself, has massively
increased the effective regulation of creativity in America. To build upon or critique the culture around us one
must ask, Oliver Twist-like, for permission first. Permission is, of course, often granted—but it is not often
granted to the critical or the independent. We have built a kind of cultural nobility; those within the noble class
live easily; those outside it don't. But it is nobility of any form that is alien to our tradition.
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The story that follows is about this war. Is it not about the “centrality of technology” to ordinary life. I don't
believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group, for neither do I
believe in a devil, corporate or otherwise. It is not a morality tale. Nor is it a call to jihad against an industry.
It is instead an effort to understand a hopelessly destructive war inspired by the technologies of the Internet but
reaching far beyond its code. And by understanding this battle, it is an effort to map peace. There is no good
reason for the current struggle around Internet technologies to continue. There will be great harm to our tradition
and culture if it is allowed to continue unchecked. We must come to understand the source of this war. We must
resolve it soon.
Like the Causbys'
battle, this war is, in part, about “property.” The property of this war is not as tangible as the Causbys', and no
innocent chicken has yet to lose its life. Yet the ideas surrounding this “property” are as obvious to most as the
Causbys' claim about the sacredness of their farm was to them. We are the Causbys. Most of us take for granted
the extraordinarily powerful claims that the owners of “intellectual property” now assert. Most of us, like the
Causbys, treat these claims as obvious. And hence we, like the Causbys, object when a new technology
interferes with this property. It is as plain to us as it was to them that the new technologies of the Internet are
“trespassing" upon legitimate claims of “property.” It is as plain to us as it was to them that the law should
intervene to stop this trespass.
And thus, when geeks and technologists defend their Armstrong or Wright brothers technology, most of us are
simply unsympathetic. Common sense does not revolt. Unlike in the case of the unlucky Causbys, common
sense is on the side of the property owners in this war. Unlike the lucky Wright brothers, the Internet has not
inspired a revolution on its side.
My hope is to push this common sense along. I have become increasingly amazed by the power of this idea of
intellectual property and, more importantly, its power to disable critical thought by policy makers and citizens.
There has never been a time in our history when more of our “culture” was as “owned” as it is now. And yet
there has never been a time when the concentration of power to control the uses of culture has been as
unquestioningly accepted as it is now.
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?
Is the radical shift away from our tradition of free culture an instance of America correcting a mistake from its
past, as we did after a bloody war with slavery, and as we are slowly doing with inequality? Or is the radical
shift away from our tradition of free culture yet another example of a political system captured by a few
powerful special interests?
Does common sense lead to the extremes on this question because common sense actually believes in these
extremes? Or does common sense stand silent in the face of these extremes because, as with Armstrong versus
RCA, the more powerful side has ensured that it has the more powerful view?
I don't mean to be mysterious. My own views are resolved. I believe it was right for common sense to revolt
against the extremism of the Causbys. I believe it would be right for common sense to revolt against the extreme
claims made today on behalf of “intellectual property.” What the law demands today is increasingly as silly as a
sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound.
The struggle that rages just now centers on two ideas: “piracy” and “property.” My aim in this book's next two
parts is to explore these two ideas.
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
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apparently simple ideas can be more fully understood.
The two sections set up the core claim of this book: that while the Internet has indeed produced something
fantastic and new, our government, pushed by big media to respond to this “something new,” is destroying
something very old. Rather than understanding the changes the Internet might permit, and rather than taking
time to let “common sense” resolve how best to respond, we are allowing those most threatened by the changes
to use their power to change the law—and more importantly, to use their power to change something
fundamental about who we have always been.
We allow this, I believe, not because it is right, and not because most of us really believe in these changes. We
allow it because the interests most threatened are among the most powerful players in our depressingly
compromised process of making law. This book is the story of one more consequence of this form of
corruption—a consequence to which most of us remain oblivious.
“PIRACY”
Since the inception of the law regulating creative property, there has been a war against “piracy.” The precise
contours of this concept, “piracy,” are hard to sketch, but the animating injustice is easy to capture. As Lord
Mansfield wrote in a case that extended the reach of English copyright law to include sheet music,
A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying
copies and disposing of them for his own use.
1
Today we are in the middle of another “war” against “piracy.” The Internet has provoked this war. The Internet
makes possible the efficient spread of content. Peer-to-peer (p2p) file sharing is among the most efficient of the
efficient technologies the Internet enables. Using distributed intelligence, p2p systems facilitate the easy spread
of content in a way unimagined a generation ago.
This efficiency does not respect the traditional lines of copyright. The network doesn't discriminate between the
sharing of copyrighted and uncopyrighted content. Thus has there been a vast amount of sharing of copyrighted
content. That sharing in turn has excited the war, as copyright owners fear the sharing will “rob the author of the
profit.”
The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their
“property” against this “piracy.” A generation of Americans, the warriors warn, is being raised to believe that
“property” should be “free.” Forget tattoos, never mind body piercing—our kids are becoming thieves!
There's no doubt that “piracy” is wrong, and that pirates should be punished. But before we summon the
executioners, we should put this notion of “piracy” in some context. For as the concept is increasingly used, at
its core is an extraordinary idea that is almost certainly wrong.
The idea goes something like this:
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.
This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the
“if value, then right" theory of creative property
2
—if there is value, then someone must have a right to that
value. It is the perspective that led a composers' rights organization, ASCAP, to sue the Girl Scouts for failing to
pay for the songs that girls sang around Girl Scout campfires.
3
There was “value” (the songs) so there must have
been a “right”—even against the Girl Scouts.
This idea is certainly a possible understanding of how creative property should work. It might well be a possible
design for a system of law protecting creative property. But the “if value, then right" theory of creative property
has never been America's theory of creative property. It has never taken hold within our law.
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Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative
society but remains subservient to the value of creativity. The current debate has this turned around. We have
become so concerned with protecting the instrument that we are losing sight of the value.
The source of this confusion is a distinction that the law no longer takes care to draw—the distinction between
republishing someone's work on the one hand and building upon or transforming that work on the other.
Copyright law at its birth had only publishing as its concern; copyright law today regulates both.
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. Although that expansion would not
matter much if copyright law regulated only “copying,” when the law regulates as broadly and obscurely as it
does, the extension matters a lot. The burden of this law now vastly outweighs any original benefit—certainly as
it affects noncommercial creativity, and increasingly as it affects commercial creativity as well. Thus, as we'll
see more clearly in the chapters below, the law's role is less and less to support creativity, and more and more to
protect certain industries against competition. Just at the time digital technology could unleash an extraordinary
range of commercial and noncommercial creativity, the law burdens this creativity with insanely complex and
vague rules and with the threat of obscenely severe penalties. We may be seeing, as Richard Florida writes, the
“Rise of the Creative Class.”
4
Unfortunately, we are also seeing an extraordinary rise of regulation of this
creative class.
These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and
by placing in their proper context the current battles about behavior labeled “piracy.”
CHAPTER ONE: Creators
In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent
flop called Plane Crazy. In November, in New York City's Colony Theater, in the first widely distributed
cartoon synchronized with sound, Steamboat Willie brought to life the character that would become Mickey
Mouse.
Synchronized sound had been introduced to film a year earlier in the movie The Jazz Singer. That success led
Walt Disney to copy the technique and mix sound with cartoons. No one knew whether it would work or, if it
did work, whether it would win an audience. But when Disney ran a test in the summer of 1928, the results were
unambiguous. As Disney describes that first experiment,
A couple of my boys could read music, and one of them could play a mouth organ. We put them in a room
where they could not see the screen and arranged to pipe their sound into the room where our wives and
friends were going to see the picture.
The boys worked from a music and sound-effects score. After several false starts, sound and action got off
with the gun. The mouth organist played the tune, the rest of us in the sound department bammed tin pans
and blew slide whistles on the beat. The synchronization was pretty close.
The effect on our little audience was nothing less than electric. They responded almost instinctively to this
union of sound and motion. I thought they were kidding me. So they put me in the audience and ran the
action again. It was terrible, but it was wonderful! And it was something new!
1
Disney's then partner, and one of animation's most extraordinary talents, Ub Iwerks, put it more strongly: “I
have never been so thrilled in my life. Nothing since has ever equaled it.”
Disney had created something very new, based upon something relatively new. Synchronized sound brought life
to a form of creativity that had rarely—except in Disney's hands—been anything more than filler for other films.
Throughout animation's early history, it was Disney's invention that set the standard that others struggled to
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match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others.
This much is familiar. What you might not know is that 1928 also marks another important transition. In that
year, a comic (as opposed to cartoon) genius created his last independently produced silent film. That genius
was Buster Keaton. The film was Steamboat Bill, Jr.
Keaton was born into a vaudeville family in 1895. In the era of silent film, he had mastered using broad physical
comedy as a way to spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was a classic of this
form, famous among film buffs for its incredible stunts. The film was classic Keaton—wildly popular and
among the best of its genre.
Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The coincidence of titles is not
coincidental. Steamboat Willie is a direct cartoon parody of Steamboat Bill,
2
and both are built upon a common
song as a source. It is not just from the invention of synchronized sound in The Jazz Singer that we get
Steamboat Willie. It is also from Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the song
“Steamboat Bill,” that we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse.
This “borrowing” was nothing unique, either for Disney or for the industry. Disney was always parroting the
feature-length mainstream films of his day.
3
So did many others. Early cartoons are filled with
knockoffs—slight variations on winning themes; retellings of ancient stories. The key to success was the
brilliance of the differences. With Disney, it was sound that gave his animation its spark. Later, it was the
quality of his work relative to the production-line cartoons with which he competed. Yet these additions were
built upon a base that was borrowed. Disney added to the work of others before him, creating something new
out of something just barely old.
Sometimes this borrowing was slight. Sometimes it was significant. Think about the fairy tales of the Brothers
Grimm. If you're as oblivious as I was, you're likely to think that these tales are happy, sweet stories, appropriate
for any child at bedtime. In fact, the Grimm fairy tales are, well, for us, grim. It is a rare and perhaps overly
ambitious parent who would dare to read these bloody, moralistic stories to his or her child, at bedtime or
anytime.
Disney took these stories and retold them in a way that carried them into a new age. He animated the stories,
with both characters and light. Without removing the elements of fear and danger altogether, he made funny
what was dark and injected a genuine emotion of compassion where before there was fear. And not just with the
work of the Brothers Grimm. Indeed, the catalog of Disney work drawing upon the work of others is astonishing
when set together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song
of the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin Hood (1952), Peter Pan (1953),
Lady and the Tramp (1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the
Stone (1963), and The Jungle Book (1967)—not to mention a recent example that we should perhaps quickly
forget, Treasure Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity from the culture
around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his
culture. Rip, mix, and burn.
This is a kind of creativity. It is a creativity that we should remember and celebrate. There are some who would
say that there is no creativity except this kind. We don't need to go that far to recognize its importance. We
could call this “Disney creativity,” though that would be a bit misleading. It is, more precisely, “Walt Disney
creativity”—a form of expression and genius that builds upon the culture around us and makes it something
different.
In 1928, the culture that Disney was free to draw upon was relatively fresh. The public domain in 1928 was not
very old and was therefore quite vibrant. The average term of copyright was just around thirty years—for that
minority of creative work that was in fact copyrighted.
4
That means that for thirty years, on average, the authors
or copyright holders of a creative work had an “exclusive right” to control certain uses of the work. To use this
copyrighted work in limited ways required the permission of the copyright owner.
At the end of a copyright term, a work passes into the public domain. No permission is then needed to draw
upon or use that work. No permission and, hence, no lawyers. The public domain is a “lawyer-free zone.” Thus,
most of the content from the nineteenth century was free for Disney to use and build upon in 1928. It was free
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for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon.
This is the ways things always were—until quite recently. For most of our history, the public domain was just
over the horizon. From 1790 until 1978, the average copyright term was never more than thirty-two years,
meaning that most culture just a generation and a half old was free for anyone to build upon without the
permission of anyone else. Today's equivalent would be for creative work from the 1960s and 1970s to now be
free for the next Walt Disney to build upon without permission. Yet today, the public domain is presumptive
only for content from before the Great Depression.
Of course, Walt Disney had no monopoly on “Walt Disney creativity.” Nor does America. The norm of free
culture has, until recently, and except within totalitarian nations, been broadly exploited and quite universal.
Consider, for example, a form of creativity that seems strange to many Americans but that is inescapable within
Japanese culture: manga, or comics. The Japanese are fanatics about comics. Some 40 percent of publications
are comics, and 30 percent of publication revenue derives from comics. They are everywhere in Japanese
society, at every magazine stand, carried by a large proportion of commuters on Japan's extraordinary system of
public transportation.
Americans tend to look down upon this form of culture. That's an unattractive characteristic of ours. We're likely
to misunderstand much about manga, because few of us have ever read anything close to the stories that these
“graphic novels” tell. For the Japanese, manga cover every aspect of social life. For us, comics are “men in
tights.” And anyway, it's not as if the New York subways are filled with readers of Joyce or even Hemingway.
People of different cultures distract themselves in different ways, the Japanese in this interestingly different
way.
But my purpose here is not to understand manga. It is to describe a variant on manga that from a lawyer's
perspective is quite odd, but from a Disney perspective is quite familiar.
This is the phenomenon of doujinshi. Doujinshi are also comics, but they are a kind of copycat comic. A rich
ethic governs the creation of doujinshi. It is not doujinshi if it is just a copy; the artist must make a contribution
to the art he copies, by transforming it either subtly or significantly. A doujinshi comic can thus take a
mainstream comic and develop it differently—with a different story line. Or the comic can keep the character in
character but change its look slightly. There is no formula for what makes the doujinshi sufficiently “different.”
But they must be different if they are to be considered true doujinshi. Indeed, there are committees that review
doujinshi for inclusion within shows and reject any copycat comic that is merely a copy.
These copycat comics are not a tiny part of the manga market. They are huge. More than 33,000 “circles” of
creators from across Japan produce these bits of Walt Disney creativity. More than 450,000 Japanese come
together twice a year, in the largest public gathering in the country, to exchange and sell them. This market
exists in parallel to the mainstream commercial manga market. In some ways, it obviously competes with that
market, but there is no sustained effort by those who control the commercial manga market to shut the doujinshi
market down. It flourishes, despite the competition and despite the law.
The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to
exist at all. Under Japanese copyright law, which in this respect (on paper) mirrors American copyright law, the
doujinshi market is an illegal one. Doujinshi are plainly “derivative works.” There is no general practice by
doujinshi artists of securing the permission of the manga creators. Instead, the practice is simply to take and
modify the creations of others, as Walt Disney did with Steamboat Bill, Jr. Under both Japanese and American
law, that “taking” without the permission of the original copyright owner is illegal. It is an infringement of the
original copyright to make a copy or a derivative work without the original copyright owner's permission.
Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it
exists that Japanese manga flourish. As American graphic novelist Judd Winick said to me, “The early days of
comics in America are very much like what's going on in Japan now. . . . American comics were born out of
copying each other. . . . That's how [the artists] learn to draw—by going into comic books and not tracing them,
but looking at them and copying them” and building from them.
5
American comics now are quite different, Winick explains, in part because of the legal difficulty of adapting
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comics the way doujinshi are allowed. Speaking of Superman, Winick told me, “there are these rules and you
have to stick to them.” There are things Superman “cannot” do. “As a creator, it's frustrating having to stick to
some parameters which are fifty years old.”
The norm in Japan mitigates this legal difficulty. Some say it is precisely the benefit accruing to the Japanese
manga market that explains the mitigation. Temple University law professor Salil Mehra, for example,
hypothesizes that the manga market accepts these technical violations because they spur the manga market to be
more wealthy and productive. Everyone would be worse off if doujinshi were banned, so the law does not ban
doujinshi.
6
The problem with this story, however, as Mehra plainly acknowledges, is that the mechanism producing this
laissez faire response is not clear. It may well be that the market as a whole is better off if doujinshi are
permitted rather than banned, but that doesn't explain why individual copyright owners don't sue nonetheless. If
the law has no general exception for doujinshi, and indeed in some cases individual manga artists have sued
doujinshi artists, why is there not a more general pattern of blocking this “free taking” by the doujinshi culture?
I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in
the end was offered by a friend from a major Japanese law firm. “We don't have enough lawyers,” he told me
one afternoon. There “just aren't enough resources to prosecute cases like this.”
This is a theme to which we will return: that regulation by law is a function of both the words on the books and
the costs of making those words have effect. For now, focus on the obvious question that is begged: Would
Japan be better off with more lawyers? Would manga be richer if doujinshi artists were regularly prosecuted?
Would the Japanese gain something important if they could end this practice of uncompensated sharing? Does
piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help their
clients or hurt them?
Let's pause for a moment.
If you're like I was a decade ago, or like most people are when they first start thinking about these issues, then
just about now you should be puzzled about something you hadn't thought through before.
We live in a world that celebrates “property.” I am one of those celebrants. I believe in the value of property in
general, and I also believe in the value of that weird form of property that lawyers call “intellectual property.”
7
A large, diverse society cannot survive without property; a large, diverse, and modern society cannot flourish
without intellectual property.
But it takes just a second's reflection to realize that there is plenty of value out there that “property” doesn't
capture. I don't mean “money can't buy you love,” but rather, value that is plainly part of a process of
production, including commercial as well as noncommercial production. If Disney animators had stolen a set of
pencils to draw Steamboat Willie, we'd have no hesitation in condemning that taking as wrong— even though
trivial, even if unnoticed. Yet there was nothing wrong, at least under the law of the day, with Disney's taking
from Buster Keaton or from the Brothers Grimm. There was nothing wrong with the taking from Keaton
because Disney's use would have been considered “fair.” There was nothing wrong with the taking from the
Grimms because the Grimms' work was in the public domain.
Thus, even though the things that Disney took—or more generally, the things taken by anyone exercising Walt
Disney creativity—are valuable, our tradition does not treat those takings as wrong. Some things remain free for
the taking within a free culture, and that freedom is good.
The same with the doujinshi culture. If a doujinshi artist broke into a publisher's office and ran off with a
thousand copies of his latest work—or even one copy—without paying, we'd have no hesitation in saying the
artist was wrong. In addition to having trespassed, he would have stolen something of value. The law bans that
stealing in whatever form, whether large or small.
Yet there is an obvious reluctance, even among Japanese lawyers, to say that the copycat comic artists are
“stealing.” This form of Walt Disney creativity is seen as fair and right, even if lawyers in particular find it hard
to say why.
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It's the same with a thousand examples that appear everywhere once you begin to look. Scientists build upon the
work of other scientists without asking or paying for the privilege. (“Excuse me, Professor Einstein, but may I
have permission to use your theory of relativity to show that you were wrong about quantum physics?”) Acting
companies perform adaptations of the works of Shakespeare without securing permission from anyone. (Does
anyone believe Shakespeare would be better spread within our culture if there were a central Shakespeare rights
clearinghouse that all productions of Shakespeare must appeal to first?) And Hollywood goes through cycles
with a certain kind of movie: five asteroid films in the late 1990s; two volcano disaster films in 1997.
Creators here and everywhere are always and at all times building upon the creativity that went before and that
surrounds them now. That building is always and everywhere at least partially done without permission and
without compensating the original creator. No society, free or controlled, has ever demanded that every use be
paid for or that permission for Walt Disney creativity must always be sought. Instead, every society has left a
certain bit of its culture free for the taking—free societies more fully than unfree, perhaps, but all societies to
some degree.
The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard
question instead is “ How free is this culture?” How much, and how broadly, is the culture free for others to take
and build upon? Is that freedom limited to party members? To members of the royal family? To the top ten
corporations on the New York Stock Exchange? Or is that freedom spread broadly? To artists generally,
whether affiliated with the Met or not? To musicians generally, whether white or not? To filmmakers generally,
whether affiliated with a studio or not?
Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures
leave much less. Ours was a free culture. It is becoming much less so.
CHAPTER TWO: “Mere Copyists”
In 1839, Louis Daguerre invented the first practical technology for producing what we would call
“photographs.” Appropriately enough, they were called “daguerreotypes.” The process was complicated and
expensive, and the field was thus limited to professionals and a few zealous and wealthy amateurs. (There was
even an American Daguerre Association that helped regulate the industry, as do all such associations, by
keeping competition down so as to keep prices up.)
Yet despite high prices, the demand for daguerreotypes was strong. This pushed inventors to find simpler and
cheaper ways to make “automatic pictures.” William Talbot soon discovered a process for making “negatives.”
But because the negatives were glass, and had to be kept wet, the process still remained expensive and
cumbersome. In the 1870s, dry plates were developed, making it easier to separate the taking of a picture from
its developing. These were still plates of glass, and thus it was still not a process within reach of most amateurs.
The technological change that made mass photography possible didn't happen until 1888, and was the creation
of a single man. George Eastman, himself an amateur photographer, was frustrated by the technology of
photographs made with plates. In a flash of insight (so to speak), Eastman saw that if the film could be made to
be flexible, it could be held on a single spindle. That roll could then be sent to a developer, driving the costs of
photography down substantially. By lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
Eastman developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the
Kodak. The device was marketed on the basis of its simplicity. “You press the button and we do the rest.”
1
As
he described in The Kodak Primer:
The principle of the Kodak system is the separation of the work that any person whomsoever can do in
making a photograph, from the work that only an expert can do. . . . We furnish anybody, man, woman or
child, who has sufficient intelligence to point a box straight and press a button, with an instrument which
altogether removes from the practice of photography the necessity for exceptional facilities or, in fact, any
special knowledge of the art. It can be employed without preliminary study, without a darkroom and without
chemicals.
2
For $25, anyone could make pictures. The camera came preloaded with film, and when it had been used, the
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camera was returned to an Eastman factory, where the film was developed. Over time, of course, the cost of the
camera and the ease with which it could be used both improved. Roll film thus became the basis for the
explosive growth of popular photography. Eastman's camera first went on sale in 1888; one year later, Kodak
was printing more than six thousand negatives a day. From 1888 through 1909, while industrial production was
rising by 4.7 percent, photographic equipment and material sales increased by 11 percent.
3
Eastman Kodak's
sales during the same period experienced an average annual increase of over 17 percent.
4
The real significance of Eastman's invention, however, was not economic. It was social. Professional
photography gave individuals a glimpse of places they would never otherwise see. Amateur photography gave
them the ability to record their own lives in a way they had never been able to do before. As author Brian Coe
notes, “For the first time the snapshot album provided the man on the street with a permanent record of his
family and its activities. . . . For the first time in history there exists an authentic visual record of the appearance
and activities of the common man made without [literary] interpretation or bias.”
5
In this way, the Kodak camera and film were technologies of expression. The pencil or paintbrush was also a
technology of expression, of course. But it took years of training before they could be deployed by amateurs in
any useful or effective way. With the Kodak, expression was possible much sooner and more simply. The
barrier to expression was lowered. Snobs would sneer at its “quality”; professionals would discount it as
irrelevant. But watch a child study how best to frame a picture and you get a sense of the experience of
creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more
easily than any tools could have before.
What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also
important was the legal environment within which Eastman's invention grew. For early in the history of
photography, there was a series of judicial decisions that could well have changed the course of photography
substantially. Courts were asked whether the photographer, amateur or professional, required permission before
he could capture and print whatever image he wanted. Their answer was no.
6
The arguments in favor of requiring permission will sound surprisingly familiar. The photographer was “taking”
something from the person or building whose photograph he shot—pirating something of value. Some even
thought he was taking the target's soul. Just as Disney was not free to take the pencils that his animators used to
draw Mickey, so, too, should these photographers not be free to take images that they thought valuable.
On the other side was an argument that should be familiar, as well. Sure, there may be something of value being
used. But citizens should have the right to capture at least those images that stand in public view. (Louis
Brandeis, who would become a Supreme Court Justice, thought the rule should be different for images from
private spaces.
7
) It may be that this means that the photographer gets something for nothing. Just as Disney
could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to
capture an image without compensating the source.
Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates.
In general, no permission would be required before an image could be captured and shared with others. Instead,
permission was presumed. Freedom was the default. (The law would eventually craft an exception for famous
people: commercial photographers who snap pictures of famous people for commercial purposes have more
restrictions than the rest of us. But in the ordinary case, the image can be captured without clearing the rights to
do the capturing.
8
)
We can only speculate about how photography would have developed had the law gone the other way. If the
presumption had been against the photographer, then the photographer would have had to demonstrate
permission. Perhaps Eastman Kodak would have had to demonstrate permission, too, before it developed the
film upon which images were captured. After all, if permission were not granted, then Eastman Kodak would be
benefiting from the “theft” committed by the photographer. Just as Napster benefited from the copyright
infringements committed by Napster users, Kodak would be benefiting from the “image-right" infringement of
its photographers. We could imagine the law then requiring that some form of permission be demonstrated
before a company developed pictures. We could imagine a system developing to demonstrate that permission.
But though we could imagine this system of permission, it would be very hard to see how photography could
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have flourished as it did if the requirement for permission had been built into the rules that govern it.
Photography would have existed. It would have grown in importance over time. Professionals would have
continued to use the technology as they did—since professionals could have more easily borne the burdens of
the permission system. But the spread of photography to ordinary people would not have occurred. Nothing like
that growth would have been realized. And certainly, nothing like that growth in a democratic technology of
expression would have been realized.
If you drive through San Francisco's Presidio, you might see two gaudy yellow school buses painted over with
colorful and striking images, and the logo “Just Think!” in place of the name of a school. But there's little that's
“just” cerebral in the projects that these busses enable. These buses are filled with technologies that teach kids to
tinker with film. Not the film of Eastman. Not even the film of your VCR. Rather the “film” of digital cameras.
Just Think! is a project that enables kids to make films, as a way to understand and critique the filmed culture
that they find all around them. Each year, these busses travel to more than thirty schools and enable three
hundred to five hundred children to learn something about media by doing something with media. By doing,
they think. By tinkering, they learn.
These buses are not cheap, but the technology they carry is increasingly so. The cost of a high-quality digital
video system has fallen dramatically. As one analyst puts it, Five years ago, a good real-time digital video
editing system cost $25,000. Today you can get professional quality for $595.”
9
These buses are filled with
technology that would have cost hundreds of thousands just ten years ago. And it is now feasible to imagine not
just buses like this, but classrooms across the country where kids are learning more and more of something
teachers call “media literacy.”
“Media literacy,” as Dave Yanofsky, the executive director of Just Think!, puts it, “is the ability . . . to
understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media
works, the way it's constructed, the way it's delivered, and the way people access it.”
This may seem like an odd way to think about “literacy.” For most people, literacy is about reading and writing.
Faulkner and Hemingway and noticing split infinitives are the things that “literate” people know about.
Maybe. But in a world where children see on average 390 hours of television commercials per year, or between
20,000 and 45,000 commercials generally,
10
it is increasingly important to understand the “grammar” of media.
For just as there is a grammar for the written word, so, too, is there one for media. And just as kids learn how to
write by writing lots of terrible prose, kids learn how to write media by constructing lots of (at least at first)
terrible media.
A growing field of academics and activists sees this form of literacy as crucial to the next generation of culture.
For though anyone who has written understands how difficult writing is—how difficult it is to sequence the
story, to keep a reader's attention, to craft language to be understandable—few of us have any real sense of how
difficult media is. Or more fundamentally, few of us have a sense of how media works, how it holds an audience
or leads it through a story, how it triggers emotion or builds suspense.
It took filmmaking a generation before it could do these things well. But even then, the knowledge was in the
filming, not in writing about the film. The skill came from experiencing the making of a film, not from reading a
book about it. One learns to write by writing and then reflecting upon what one has written. One learns to write
with images by making them and then reflecting upon what one has created.
This grammar has changed as media has changed. When it was just film, as Elizabeth Daley, executive director
of the University of Southern California's Annenberg Center for Communication and dean of the USC School of
Cinema-Television, explained to me, the grammar was about “the placement of objects, color, . . . rhythm,
pacing, and texture.”
11
But as computers open up an interactive space where a story is “played” as well as
experienced, that grammar changes. The simple control of narrative is lost, and so other techniques are
necessary. Author Michael Crichton had mastered the narrative of science fiction. But when he tried to design a
computer game based on one of his works, it was a new craft he had to learn. How to lead people through a
game without their feeling they have been led was not obvious, even to a wildly successful author.
12
This skill is precisely the craft a filmmaker learns. As Daley describes, “people are very surprised about how
they are led through a film. [I]t is perfectly constructed to keep you from seeing it, so you have no idea. If a
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filmmaker succeeds you do not know how you were led.” If you know you were led through a film, the film has
failed.
Yet the push for an expanded literacy—one that goes beyond text to include audio and visual elements—is not
about making better film directors. The aim is not to improve the profession of filmmaking at all. Instead, as
Daley explained,
From my perspective, probably the most important digital divide is not access to a box. It's the ability to be
empowered with the language that that box works in. Otherwise only a very few people can write with this
language, and all the rest of us are reduced to being read-only.
“Read-only.” Passive recipients of culture produced elsewhere. Couch potatoes. Consumers. This is the world of
media from the twentieth century.
The twenty-first century could be different. This is the crucial point: It could be both read and write. Or at least
reading and better understanding the craft of writing. Or best, reading and understanding the tools that enable the
writing to lead or mislead. The aim of any literacy, and this literacy in particular, is to “empower people to
choose the appropriate language for what they need to create or express.”
13
It is to enable students “to
communicate in the language of the twenty-first century.”
14
As with any language, this language comes more easily to some than to others. It doesn't necessarily come more
easily to those who excel in written language. Daley and Stephanie Barish, director of the Institute for
Multimedia Literacy at the Annenberg Center, describe one particularly poignant example of a project they ran
in a high school. The high school was a very poor inner-city Los Angeles school. In all the traditional measures
of success, this school was a failure. But Daley and Barish ran a program that gave kids an opportunity to use
film to express meaning about something the students know something about—gun violence.
The class was held on Friday afternoons, and it created a relatively new problem for the school. While the
challenge in most classes was getting the kids to come, the challenge in this class was keeping them away. The
“kids were showing up at 6 A.M. and leaving at 5 at night,” said Barish. They were working harder than in any
other class to do what education should be about—learning how to express themselves.
Using whatever “free web stuff they could find,” and relatively simple tools to enable the kids to mix “image,
sound, and text,” Barish said this class produced a series of projects that showed something about gun violence
that few would otherwise understand. This was an issue close to the lives of these students. The project “gave
them a tool and empowered them to be able to both understand it and talk about it,” Barish explained. That tool
succeeded in creating expression—far more successfully and powerfully than could have been created using
only text. “If you had said to these students, 'you have to do it in text,' they would've just thrown their hands up
and gone and done something else,” Barish described, in part, no doubt, because expressing themselves in text is
not something these students can do well. Yet neither is text a form in which these ideas can be expressed well.
The power of this message depended upon its connection to this form of expression.
“But isn't education about teaching kids to write?” I asked. In part, of course, it is. But why are we teaching kids
to write? Education, Daley explained, is about giving students a way of “constructing meaning.” To say that that
means just writing is like saying teaching writing is only about teaching kids how to spell. Text is one part—and
increasingly, not the most powerful part—of constructing meaning. As Daley explained in the most moving part
of our interview,
What you want is to give these students ways of constructing meaning. If all you give them is text, they're
not going to do it. Because they can't. You know, you've got Johnny who can look at a video, he can play a
video game, he can do graffiti all over your walls, he can take your car apart, and he can do all sorts of other
things. He just can't read your text. So Johnny comes to school and you say, “Johnny, you're illiterate.
Nothing you can do matters.” Well, Johnny then has two choices: He can dismiss you or he [can] dismiss
himself. If his ego is healthy at all, he's going to dismiss you. [But i]nstead, if you say, “Well, with all these
things that you can do, let's talk about this issue. Play for me music that you think reflects that, or show me
images that you think reflect that, or draw for me something that reflects that.” Not by giving a kid a video
camera and . . . saying,”Let's go have fun with the video camera and make a little movie.” But instead,
really help you take these elements that you understand, that are your language, and construct meaning
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about the topic. . . .
That empowers enormously. And then what happens, of course, is eventually, as it has happened in all these
classes, they bump up against the fact, “I need to explain this and I really need to write something.” And as
one of the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
Because they needed to. There was a reason for doing it. They needed to say something, as opposed to just
jumping through your hoops. They actually needed to use a language that they didn't speak very well. But
they had come to understand that they had a lot of power with this language.”
When two planes crashed into the World Trade Center, another into the Pentagon, and a fourth into a
Pennsylvania field, all media around the world shifted to this news. Every moment of just about every day for
that week, and for weeks after, television in particular, and media generally, retold the story of the events we
had just witnessed. The telling was a retelling, because we had seen the events that were described. The genius
of this awful act of terrorism was that the delayed second attack was perfectly timed to assure that the whole
world would be watching.
These retellings had an increasingly familiar feel. There was music scored for the intermissions, and fancy
graphics that flashed across the screen. There was a formula to interviews. There was “balance,” and
seriousness. This was news choreographed in the way we have increasingly come to expect it, “news as
entertainment,” even if the entertainment is tragedy.
But in addition to this produced news about the “tragedy of September 11,” those of us tied to the Internet came
to see a very different production as well. The Internet was filled with accounts of the same events. Yet these
Internet accounts had a very different flavor. Some people constructed photo pages that captured images from
around the world and presented them as slide shows with text. Some offered open letters. There were sound
recordings. There was anger and frustration. There were attempts to provide context. There was, in short, an
extraordinary worldwide barn raising, in the sense Mike Godwin uses the term in his book Cyber Rights, around
a news event that had captured the attention of the world. There was ABC and CBS, but there was also the
Internet.
I don't mean simply to praise the Internet—though I do think the people who supported this form of speech
should be praised. I mean instead to point to a significance in this form of speech. For like a Kodak, the Internet
enables people to capture images. And like in a movie by a student on the “Just Think!” bus, the visual images
could be mixed with sound or text.
But unlike any technology for simply capturing images, the Internet allows these creations to be shared with an
extraordinary number of people, practically instantaneously. This is something new in our tradition—not just
that culture can be captured mechanically, and obviously not just that events are commented upon critically, but
that this mix of captured images, sound, and commentary can be widely spread practically instantaneously.
September 11 was not an aberration. It was a beginning. Around the same time, a form of communication that
has grown dramatically was just beginning to come into public consciousness: the Web-log, or blog. The blog is
a kind of public diary, and within some cultures, such as in Japan, it functions very much like a diary. In those
cultures, it records private facts in a public way—it's a kind of electronic Jerry Springer, available anywhere in
the world.
But in the United States, blogs have taken on a very different character. There are some who use the space
simply to talk about their private life. But there are many who use the space to engage in public discourse.
Discussing matters of public import, criticizing others who are mistaken in their views, criticizing politicians
about the decisions they make, offering solutions to problems we all see: blogs create the sense of a virtual
public meeting, but one in which we don't all hope to be there at the same time and in which conversations are
not necessarily linked. The best of the blog entries are relatively short; they point directly to words used by
others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public
discourse that we have.
That's a strong statement. Yet it says as much about our democracy as it does about blogs. This is the part of
America that is most difficult for those of us who love America to accept: Our democracy has atrophied. Of
course we have elections, and most of the time the courts allow those elections to count. A relatively small
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number of people vote in those elections. The cycle of these elections has become totally professionalized and
routinized. Most of us think this is democracy.
But democracy has never just been about elections. Democracy means rule by the people, but rule means
something more than mere elections. In our tradition, it also means control through reasoned discourse. This was
the idea that captured the imagination of Alexis de Tocqueville, the nineteenth-century French lawyer who wrote
the most important account of early “Democracy in America.” It wasn't popular elections that fascinated him—it
was the jury, an institution that gave ordinary people the right to choose life or death for other citizens. And
most fascinating for him was that the jury didn't just vote about the outcome they would impose. They
deliberated. Members argued about the “right” result; they tried to persuade each other of the “right” result, and
in criminal cases at least, they had to agree upon a unanimous result for the process to come to an end.
15
Yet even this institution flags in American life today. And in its place, there is no systematic effort to enable
citizen deliberation. Some are pushing to create just such an institution.
16
And in some towns in New England,
something close to deliberation remains. But for most of us for most of the time, there is no time or place for
“democratic deliberation” to occur.
More bizarrely, there is generally not even permission for it to occur. We, the most powerful democracy in the
world, have developed a strong norm against talking about politics. It's fine to talk about politics with people
you agree with. But it is rude to argue about politics with people you disagree with. Political discourse becomes
isolated, and isolated discourse becomes more extreme.
17
We say what our friends want to hear, and hear very
little beyond what our friends say.
Enter the blog. The blog's very architecture solves one part of this problem. People post when they want to post,
and people read when they want to read. The most difficult time is synchronous time. Technologies that enable
asynchronous communication, such as e-mail, increase the opportunity for communication. Blogs allow for
public discourse without the public ever needing to gather in a single public place.
But beyond architecture, blogs also have solved the problem of norms. There's no norm (yet) in blog space not
to talk about politics. Indeed, the space is filled with political speech, on both the right and the left. Some of the
most popular sites are conservative or libertarian, but there are many of all political stripes. And even blogs that
are not political cover political issues when the occasion merits.
The significance of these blogs is tiny now, though not so tiny. The name Howard Dean may well have faded
from the 2004 presidential race but for blogs. Yet even if the number of readers is small, the reading is having
an effect.
One direct effect is on stories that had a different life cycle in the mainstream media. The Trent Lott affair is an
example. When Lott “misspoke” at a party for Senator Strom Thurmond, essentially praising Thurmond's
segregationist policies, he calculated correctly that this story would disappear from the mainstream press within
forty-eight hours. It did. But he didn't calculate its life cycle in blog space. The bloggers kept researching the
story. Over time, more and more instances of the same “misspeaking” emerged. Finally, the story broke back
into the mainstream press. In the end, Lott was forced to resign as senate majority leader.
18
This different cycle is possible because the same commercial pressures don't exist with blogs as with other
ventures. Television and newspapers are commercial entities. They must work to keep attention. If they lose
readers, they lose revenue. Like sharks, they must move on.
But bloggers don't have a similar constraint. They can obsess, they can focus, they can get serious. If a particular
blogger writes a particularly interesting story, more and more people link to that story. And as the number of
links to a particular story increases, it rises in the ranks of stories. People read what is popular; what is popular
has been selected by a very democratic process of peer-generated rankings.
There's a second way, as well, in which blogs have a different cycle from the mainstream press. As Dave Winer,
one of the fathers of this movement and a software author for many decades, told me, another difference is the
absence of a financial “conflict of interest.”
“I think you have to take the conflict of interest” out of journalism, Winer told me. “An amateur journalist
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simply doesn't have a conflict of interest, or the conflict of interest is so easily disclosed that you know you can
sort of get it out of the way.”
These conflicts become more important as media becomes more concentrated (more on this below). A
concentrated media can hide more from the public than an unconcentrated media can—as CNN admitted it did
after the Iraq war because it was afraid of the consequences to its own employees.
19
It also needs to sustain a
more coherent account. (In the middle of the Iraq war, I read a post on the Internet from someone who was at
that time listening to a satellite uplink with a reporter in Iraq. The New York headquarters was telling the
reporter over and over that her account of the war was too bleak: She needed to offer a more optimistic story.
When she told New York that wasn't warranted, they told her that they were writing “the story.”)
Blog space gives amateurs a way to enter the debate—“amateur” not in the sense of inexperienced, but in the
sense of an Olympic athlete, meaning not paid by anyone to give their reports. It allows for a much broader
range of input into a story, as reporting on the Columbia disaster revealed, when hundreds from across the
southwest United States turned to the Internet to retell what they had seen.
20
And it drives readers to read across
the range of accounts and “triangulate,” as Winer puts it, the truth. Blogs, Winer says, are “communicating
directly with our constituency, and the middle man is out of it”—with all the benefits, and costs, that might
entail.
Winer is optimistic about the future of journalism infected with blogs. “It's going to become an essential skill,”
Winer predicts, for public figures and increasingly for private figures as well. It's not clear that “journalism” is
happy about this—some journalists have been told to curtail their blogging.
21
But it is clear that we are still in
transition. “A lot of what we are doing now is warm-up exercises,” Winer told me. There is a lot that must
mature before this space has its mature effect. And as the inclusion of content in this space is the least infringing
use of the Internet (meaning infringing on copyright), Winer said, “we will be the last thing that gets shut
down.”
This speech affects democracy. Winer thinks that happens because “you don't have to work for somebody who
controls, [for] a gate- keeper.” That is true. But it affects democracy in another way as well. As more and more
citizens express what they think, and defend it in writing, that will change the way people understand public
issues. It is easy to be wrong and misguided in your head. It is harder when the product of your mind can be
criticized by others. Of course, it is a rare human who admits that he has been persuaded that he is wrong. But it
is even rarer for a human to ignore when he has been proven wrong. The writing of ideas, arguments, and
criticism improves democracy. Today there are probably a couple of million blogs where such writing happens.
When there are ten million, there will be something extraordinary to report.
John Seely Brown is the chief scientist of the Xerox Corporation. His work, as his Web site describes it, is
“human learning and . . . the creation of knowledge ecologies for creating . . . innovation.”
Brown thus looks at these technologies of digital creativity a bit differently from the perspectives I've sketched
so far. I'm sure he would be excited about any technology that might improve democracy. But his real
excitement comes from how these technologies affect learning.
As Brown believes, we learn by tinkering. When “a lot of us grew up,” he explains, that tinkering was done “on
motorcycle engines, lawn-mower engines, automobiles, radios, and so on. But digital technologies enable a
different kind of tinkering—with abstract ideas though in concrete form. The kids at Just Think! not only think
about how a commercial portrays a politician; using digital technology, they can take the commercial apart and
manipulate it, tinker with it to see how it does what it does. Digital technologies launch a kind of bricolage, or
“free collage,” as Brown calls it. Many get to add to or transform the tinkering of many others.
The best large-scale example of this kind of tinkering so far is free software or open-source software (FS/OSS).
FS/OSS is software whose source code is shared. Anyone can download the technology that makes a FS/OSS
program run. And anyone eager to learn how a particular bit of FS/OSS technology works can tinker with the
code.
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.
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“Open source becomes a major apprenticeship platform.”
In this process, “the concrete things you tinker with are abstract. They are code.” Kids are “shifting to the ability
to tinker in the abstract, and this tinkering is no longer an isolated activity that you're doing in your garage. You
are tinkering with a community platform. . . .
You are tinkering with other people's stuff. The more you tinker the more you improve.” The more you improve,
the more you learn.
This same thing happens with content, too. And it happens in the same collaborative way when that content is
part of the Web. As Brown puts it, “the Web [is] the first medium that truly honors multiple forms of
intelligence.” Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web
amplifies much more than text. “The Web . . . says if you are musical, if you are artistic, if you are visual, if you
are interested in film . . . [then] there is a lot you can start to do on this medium. [It] can now amplify and honor
these multiple forms of intelligence.”
Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think! teach: that this tinkering with
culture teaches as well as creates. It develops talents differently, and it builds a different kind of recognition.
Yet the freedom to tinker with these objects is not guaranteed. Indeed, as we'll see through the course of this
book, that freedom is increasingly highly contested. While there's no doubt that your father had the right to
tinker with the car engine, there's great doubt that your child will have the right to tinker with the images she
finds all around. The law and, increasingly, technology interfere with a freedom that technology, and curiosity,
would otherwise ensure.
These restrictions have become the focus of researchers and scholars. Professor Ed Felten of Princeton (whom
we'll see more of in chapter 10) has developed a powerful argument in favor of the “right to tinker” as it applies
to computer science and to knowledge in general.
22
But Brown's concern is earlier, or younger, or more
fundamental. It is about the learning that kids can do, or can't do, because of the law.
“This is where education in the twenty-first century is going,” Brown explains. We need to “understand how
kids who grow up digital think and want to learn.”
“Yet,” as Brown continued, and as the balance of this book will evince, “we are building a legal system that
completely suppresses the natural tendencies of today's digital kids. . . . We're building an architecture that
unleashes 60 percent of the brain [and] a legal system that closes down that part of the brain.”
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.
“No way to run a culture,” as Brewster Kahle, whom we'll meet in chapter 9, quipped to me in a rare moment of
despondence.
CHAPTER THREE: Catalogs
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer Polytechnic
Institute, in Troy, New York. His major at RPI was information technology. Though he is not a programmer, in
October Jesse decided to begin to tinker with search engine technology that was available on the RPI network.
RPI is one of America's foremost technological research institutions. It offers degrees in fields ranging from
architecture and engineering to information sciences. More than 65 percent of its five thousand undergraduates
finished in the top 10 percent of their high school class. The school is thus a perfect mix of talent and experience
to imagine and then build, a generation for the network age.
RPI's computer network links students, faculty, and administration to one another. It also links RPI to the
Internet. Not everything available on the RPI network is available on the Internet. But the network is designed to
enable students to get access to the Internet, as well as more intimate access to other members of the RPI
community.
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Search engines are a measure of a network's intimacy. Google brought the Internet much closer to all of us by
fantastically improving the quality of search on the network. Specialty search engines can do this even better.
The idea of “intranet” search engines, search engines that search within the network of a particular institution, is
to provide users of that institution with better access to material from that institution. Businesses do this all the
time, enabling employees to have access to material that people outside the business can't get. Universities do it
as well.
These engines are enabled by the network technology itself. Microsoft, for example, has a network file system
that makes it very easy for search engines tuned to that network to query the system for information about the
publicly (within that network) available content.
Jesse's search engine was built to take advantage of this technology. It used Microsoft's network file system to
build an index of all the files available within the RPI network.
Jesse's wasn't the first search engine built for the RPI network. Indeed, his engine was a simple modification of
engines that others had built. His single most important improvement over those engines was to fix a bug within
the Microsoft file-sharing system that could cause a user's computer to crash. With the engines that existed
before, if you tried to access a file through a Windows browser that was on a computer that was off-line, your
computer could crash. Jesse modified the system a bit to fix that problem, by adding a button that a user could
click to see if the machine holding the file was still on-line.
Jesse's engine went on-line in late October. Over the following six months, he continued to tweak it to improve
its functionality. By March, the system was functioning quite well. Jesse had more than one million files in his
directory, including every type of content that might be on users' computers.
Thus the index his search engine produced included pictures, which students could use to put on their own Web
sites; copies of notes or research; copies of information pamphlets; movie clips that students might have created;
university brochures—basically anything that users of the RPI network made available in a public folder of their
computer.
But the index also included music files. In fact, one quarter of the files that Jesse's search engine listed were
music files. But that means, of course, that three quarters were not, and—so that this point is absolutely
clear—Jesse did nothing to induce people to put music files in their public folders. He did nothing to target the
search engine to these files. He was a kid tinkering with a Google-like technology at a university where he was
studying information science, and hence, tinkering was the aim. Unlike Google, or Microsoft, for that matter, he
made no money from this tinkering; he was not connected to any business that would make any money from this
experiment. He was a kid tinkering with technology in an environment where tinkering with technology was
precisely what he was supposed to do.
On April 3, 2003, Jesse was contacted by the dean of students at RPI. The dean informed Jesse that the
Recording Industry Association of America, the RIAA, would be filing a lawsuit against him and three other
students whom he didn't even know, two of them at other universities. A few hours later, Jesse was served with
papers from the suit. As he read these papers and watched the news reports about them, he was increasingly
astonished.
“It was absurd,” he told me. “I don't think I did anything wrong. . . .
I don't think there's anything wrong with the search engine that I ran or . . . what I had done to it. I mean, I hadn't
modified it in any way that promoted or enhanced the work of pirates. I just modified the search engine in a way
that would make it easier to use”—again, a search engine, which Jesse had not himself built, using the Windows
file- sharing system, which Jesse had not himself built, to enable members of the RPI community to get access
to content, which Jesse had not himself created or posted, and the vast majority of which had nothing to do with
music.
But the RIAA branded Jesse a pirate. They claimed he operated a network and had therefore “willfully” violated
copyright laws. They demanded that he pay them the damages for his wrong. For cases of “willful
infringement,” the Copyright Act specifies something lawyers call “statutory damages.” These damages permit a
copyright owner to claim $150,000 per infringement. As the RIAA alleged more than one hundred specific
copyright infringements, they therefore demanded that Jesse pay them at least $15,000,000.
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Similar lawsuits were brought against three other students: one other student at RPI, one at Michigan Technical
University, and one at Princeton. Their situations were similar to Jesse's. Though each case was different in
detail, the bottom line in each was exactly the same: huge demands for “damages” that the RIAA claimed it was
entitled to. If you added up the claims, these four lawsuits were asking courts in the United States to award the
plaintiffs close to $100 billion—six times the total profit of the film industry in 2001.
1
Jesse called his parents. They were supportive but a bit frightened. An uncle was a lawyer. He began
negotiations with the RIAA. They demanded to know how much money Jesse had. Jesse had saved $12,000
from summer jobs and other employment. They demanded $12,000 to dismiss the case.
The RIAA wanted Jesse to admit to doing something wrong. He refused. They wanted him to agree to an
injunction that would essentially make it impossible for him to work in many fields of technology for the rest of
his life. He refused. They made him understand that this process of being sued was not going to be pleasant. (As
Jesse's father recounted to me, the chief lawyer on the case, Matt Oppenheimer, told Jesse, “You don't want to
pay another visit to a dentist like me.”) And throughout, the RIAA insisted it would not settle the case until it
took every penny Jesse had saved.
Jesse's family was outraged at these claims. They wanted to fight. But Jesse's uncle worked to educate the
family about the nature of the American legal system. Jesse could fight the RIAA. He might even win. But the
cost of fighting a lawsuit like this, Jesse was told, would be at least $250,000. If he won, he would not recover
that money. If he won, he would have a piece of paper saying he had won, and a piece of paper saying he and
his family were bankrupt.
So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement.
The recording industry insists this is a matter of law and morality.
Let's put the law aside for a moment and think about the morality. Where is the morality in a lawsuit like this?
What is the virtue in scapegoatism? The RIAA is an extraordinarily powerful lobby. The president of the RIAA
is reported to make more than $1 million a year. Artists, on the other hand, are not well paid. The average
recording artist makes $45,900.
2
There are plenty of ways for the RIAA to affect and direct policy. So where is
the morality in taking money from a student for running a search engine?
3
On June 23, Jesse wired his savings to the lawyer working for the RIAA. The case against him was then
dismissed. And with this, this kid who had tinkered a computer into a $15 million lawsuit became an activist:
I was definitely not an activist [before]. I never really meant to be an activist. . . . [But] I've been pushed
into this. In no way did I ever foresee anything like this, but I think it's just completely absurd what the
RIAA has done.
Jesse's parents betray a certain pride in their reluctant activist. As his father told me, Jesse “considers himself
very conservative, and so do I. . . . He's not a tree hugger. . . . I think it's bizarre that they would pick on him.
But he wants to let people know that they're sending the wrong message. And he wants to correct the record.”
CHAPTER FOUR: “Pirates”
If piracy” means using the creative property of others without their permission—if “if value, then right” is
true—then the history of the content industry is a history of piracy. Every important sector of “big media”
today—film, records, radio, and cable TV—was born of a kind of piracy so defined. The consistent story is how
last generation's pirates join this generation's country club—until now.
Film
The film industry of Hollywood was built by fleeing pirates.
1
Creators and directors migrated from the East
Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of
filmmaking, Thomas Edison. These controls were exercised through a monopoly “trust,” the Motion Pictures
Patents Company, and were based on Thomas Edison's creative property—patents. Edison formed the MPPC to
exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded. As
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one commentator tells one part of the story,
A January 1909 deadline was set for all companies to comply with the license. By February, unlicensed
outlaws, who referred to themselves as independents protested the trust and carried on business without
submitting to the Edison monopoly. In the summer of 1909 the independent movement was in full-swing,
with producers and theater owners using illegal equipment and imported film stock to create their own
underground market.
With the country experiencing a tremendous expansion in the number of nickelodeons, the Patents
Company reacted to the independent movement by forming a strong-arm subsidiary known as the General
Film Company to block the entry of non-licensed independents. With coercive tactics that have become
legendary, General Film confiscated unlicensed equipment, discontinued product supply to theaters which
showed unlicensed films, and effectively monopolized distribution with the acquisition of all U.S. film
exchanges, except for the one owned by the independent William Fox who defied the Trust even after his
license was revoked.
2
The Napsters of those days, the “independents,” were companies like Fox. And no less than today, these
independents were vigorously resisted. “Shooting was disrupted by machinery stolen, and 'accidents' resulting in
loss of negatives, equipment, buildings and sometimes life and limb frequently occurred.”
3
That led the
independents to flee the East Coast. California was remote enough from Edison's reach that film- makers there
could pirate his inventions without fear of the law. And the leaders of Hollywood filmmaking, Fox most
prominently, did just that.
Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But
because patents grant the patent holder a truly “limited” monopoly (just seventeen years at that time), by the
time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the
piracy of Edison's creative property.
Recorded Music
The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way
the law regulates music.
At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph,
Fourneaux the player piano), the law gave composers the exclusive right to control copies of their music and the
exclusive right to control public performances of their music. In other words, in 1900, if I wanted a copy of Phil
Russel's 1899 hit “Happy Mose,” the law said I would have to pay for the right to get a copy of the musical
score, and I would also have to pay for the right to perform it publicly.
But what if I wanted to record “Happy Mose,” using Edison's phonograph or Fourneaux's player piano? Here the
law stumbled. It was clear enough that I would have to buy any copy of the musical score that I performed in
making this recording. And it was clear enough that I would have to pay for any public performance of the work
I was recording. But it wasn't totally clear that I would have to pay for a “public performance” if I recorded the
song in my own house (even today, you don't owe the Beatles anything if you sing their songs in the shower), or
if I recorded the song from memory (copies in your brain are not—yet— regulated by copyright law). So if I
simply sang the song into a recording device in the privacy of my own home, it wasn't clear that I owed the
composer anything. And more importantly, it wasn't clear whether I owed the composer anything if I then made
copies of those recordings. Because of this gap in the law, then, I could effectively pirate someone else's song
without paying its composer anything.
The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator
Alfred Kittredge put it,
Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense
the rights to the same and copyrights it. Along come the phonographic companies and companies who cut
music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for
[their] rights.
4
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The innovators who developed the technology to record other people's works were “sponging upon the toil, the
work, the talent, and genius of American composers,”
5
and the “music publishing industry" was thereby “at the
complete mercy of this one pirate.”
6
As John Philip Sousa put it, in as direct a way as possible, “When they
make money out of my pieces, I want a share of it.”
7
These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The
innovators who developed the player piano argued that “it is perfectly demonstrable that the introduction of
automatic music players has not deprived any composer of anything he had before their introduction.” Rather,
the machines increased the sales of sheet music.
8
In any case, the innovators argued, the job of Congress was
“to consider first the interest of [the public], whom they represent, and whose servants they are.”
“All talk about 'theft,'“ the general counsel of the American Graphophone Company wrote, “is the merest
claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute.”
9
The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the law to
make sure that composers would be paid for the “mechanical reproductions” of their music. But rather than
simply granting the composer complete control over the right to make mechanical reproductions, Congress gave
recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be
recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a
recording of his song, others are free to record the same song, so long as they pay the original composer a fee set
by the law.
American law ordinarily calls this a “compulsory license,” but I will refer to it as a “statutory license.” A
statutory license is a license whose key terms are set by law. After Congress's amendment of the Copyright Act
in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or
copyright holder) the fee set by the statute.
This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to
publish that novel only if Grisham gives the publisher permission. Grisham, in turn, is free to charge whatever
he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily
says you have no permission to use Grisham's work except with permission of Grisham.
But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the
recording industry through a kind of piracy—by giving recording artists a weaker right than it otherwise gives
creative authors. The Beatles have less control over their creative work than Grisham does. And the
beneficiaries of this less control are the recording industry and the public. The recording industry gets something
of value for less than it otherwise would pay; the public gets access to a much wider range of musical creativity.
Indeed, Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of
rights holders, and that that power would stifle follow-on creativity.
10
While the recording industry has been quite coy about this recently, historically it has been quite a supporter of
the statutory license for records. As a 1967 report from the House Committee on the Judiciary relates,
the record producers argued vigorously that the compulsory license system must be retained. They asserted
that the record industry is a half-billion-dollar business of great economic importance in the United States
and throughout the world; records today are the principal means of disseminating music, and this creates
special problems, since performers need unhampered access to musical material on nondiscriminatory
terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the
1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these
rights. They argue that the result has been an outpouring of recorded music, with the public being given
lower prices, improved quality, and a greater choice.
11
By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the
public, benefit.
Radio
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Radio was also born of piracy.
When a radio station plays a record on the air, that constitutes a “public performance” of the composer's work.
12
As I described above, the law gives the composer (or copyright holder) an exclusive right to public
performances of his work. The radio station thus owes the composer money for that performance.
But when the radio station plays a record, it is not only performing a copy of the composer's work. The radio
station is also performing a copy of the recording artist's work. It's one thing to have “Happy Birthday” sung on
the radio by the local children's choir; it's quite another to have it sung by the Rolling Stones or Lyle Lovett. The
recording artist is adding to the value of the composition performed on the radio station. And if the law were
perfectly consistent, the radio station would have to pay the recording artist for his work, just as it pays the
composer of the music for his work.
But it doesn't. Under the law governing radio performances, the radio station does not have to pay the recording
artist. The radio station need only pay the composer. The radio station thus gets a bit of something for nothing. It
gets to perform the recording artist's work for free, even if it must pay the composer something for the privilege
of playing the song.
This difference can be huge. Imagine you compose a piece of music. Imagine it is your first. You own the
exclusive right to authorize public performances of that music. So if Madonna wants to sing your song in public,
she has to get your permission.
Imagine she does sing your song, and imagine she likes it a lot. She then decides to make a recording of your
song, and it becomes a top hit. Under our law, every time a radio station plays your song, you get some money.
But Madonna gets nothing, save the indirect effect on the sale of her CDs. The public performance of her
recording is not a “protected” right. The radio station thus gets to pirate the value of Madonna's work without
paying her anything.
No doubt, one might argue that, on balance, the recording artists benefit. On average, the promotion they get is
worth more than the performance rights they give up. Maybe. But even if so, the law ordinarily gives the creator
the right to make this choice. By making the choice for him or her, the law gives the radio station the right to
take something for nothing.
Cable TV
Cable TV was also born of a kind of piracy.
When cable entrepreneurs first started wiring communities with cable television in 1948, most refused to pay
broadcasters for the content that they echoed to their customers. Even when the cable companies started selling
access to television broadcasts, they refused to pay for what they sold. Cable companies were thus Napsterizing
broadcasters' content, but more egregiously than anything Napster ever did— Napster never charged for the
content it enabled others to give away.
Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the
practice as a kind of “unfair and potentially destructive competition.”
13
There may have been a “public interest”
in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association of
Broadcasters, asked Senator Quentin Burdick during testimony, “Does public interest dictate that you use
somebody else's property?”
14
As another broadcaster put it,
The extraordinary thing about the CATV business is that it is the only business I know of where the product
that is being sold is not paid for.
15
Again, the demand of the copyright holders seemed reasonable enough:
All we are asking for is a very simple thing, that people who now take our property for nothing pay for it.
We are trying to stop piracy and I don't think there is any lesser word to describe it. I think there are harsher
words which would fit it.
16
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These were “free-ride[rs],” Screen Actor's Guild president Charlton Heston said, who were “depriving actors of
compensation.”
17
But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it,
Our point here is that unlike the problem of whether you have any copyright protection at all, the problem
here is whether copyright holders who are already compensated, who already have a monopoly, should be
permitted to extend that monopoly. . . . The question here is how much compensation they should have and
how far back they should carry their right to compensation.
18
Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies
owed the copyright owners nothing.
It took Congress almost thirty years before it resolved the question of whether cable companies had to pay for
the content they “pirated.” In the end, Congress resolved this question in the same way that it resolved the
question about record players and player pianos. Yes, cable companies would have to pay for the content that
they broadcast; but the price they would have to pay was not set by the copyright owner. The price was set by
law, so that the broadcasters couldn't exercise veto power over the emerging technologies of cable. Cable
companies thus built their empire in part upon a “piracy” of the value created by broadcasters' content.
These separate stories sing a common theme. If “piracy” means using value from someone else's creative
property without permission from that creator—as it is increasingly described today
19
then every industry
affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable
TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every
generation—until now.
CHAPTER FIVE: “Piracy”
There is piracy of copyrighted material. Lots of it. This piracy comes in many forms. The most significant is
commercial piracy, the unauthorized taking of other people's content within a commercial context. Despite the
many justifications that are offered in its defense, this taking is wrong. No one should condone it, and the law
should stop it.
But as well as copy-shop piracy, there is another kind of “taking" that is more directly related to the Internet.
That taking, too, seems wrong to many, and it is wrong much of the time. Before we paint this taking “piracy,”
however, we should understand its nature a bit more. For the harm of this taking is significantly more
ambiguous than outright copying, and the law should account for that ambiguity, as it has so often done in the
past.
Piracy I
All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take
others people's copyrighted content, copy it, and sell it—all without the permission of a copyright owner. The
recording industry estimates that it loses about $4.6 billion every year to physical piracy
1
(that works out to one
in three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually worldwide to piracy.
This is piracy plain and simple. Nothing in the argument of this book, nor in the argument that most people
make when talking about the subject of this book, should draw into doubt this simple point: This piracy is
wrong.
Which is not to say that excuses and justifications couldn't be made for it. We could, for example, remind
ourselves that for the first one hundred years of the American Republic, America did not honor foreign
copyrights. We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so
strongly that other developing nations treat as wrong what we, for the first hundred years of our existence,
treated as right.
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That excuse isn't terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly
limited itself to American works. Thus the American publishers who published foreign works without the
permission of foreign authors were not violating any rule. 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.
True, these local rules have, in effect, been imposed upon these countries. No country can be part of the world
economy and choose not to protect copyright internationally. We may have been born a pirate nation, but we
will not allow any other nation to have a similar childhood.
If a country is to be treated as a sovereign, however, then its laws are its laws regardless of their source. The
international law under which these nations live gives them some opportunities to escape the burden of
intellectual property law.
2
In my view, more developing nations should take advantage of that opportunity, but
when they don't, then their laws should be respected. And under the laws of these nations, this piracy is wrong.
Alternatively, we could try to excuse this piracy by noting that in any case, it does no harm to the industry. The
Chinese who get access to American CDs at 50 cents a copy are not people who would have bought those
American CDs at $15 a copy. So no one really has any less money than they otherwise would have had.
3
This is often true (though I have friends who have purchased many thousands of pirated DVDs who certainly
have enough money to pay for the content they have taken), and it does mitigate to some degree the harm caused
by such taking. Extremists in this debate love to say, “You wouldn't go into Barnes & Noble and take a book off
of the shelf without paying; why should it be any different with on-line music?” The difference is, of course,
that when you take a book from Barnes & Noble, it has one less book to sell. By contrast, when you take an
MP3 from a computer network, there is not one less CD that can be sold. The physics of piracy of the intangible
are different from the physics of piracy of the tangible.
This argument is still very weak. However, although copyright is a property right of a very special sort, it is a
property right. Like all property rights, the copyright gives the owner the right to decide the terms under which
content is shared. If the copyright owner doesn't want to sell, she doesn't have to. There are exceptions:
important statutory licenses that apply to copyrighted content regardless of the wish of the copyright owner.
Those licenses give people the right to “take” copyrighted content whether or not the copyright owner wants to
sell. But where the law does not give people the right to take content, it is wrong to take that content even if the
wrong does no harm. If we have a property system, and that system is properly balanced to the technology of a
time, then it is wrong to take property without the permission of a property owner. That is exactly what
“property” means.
Finally, we could try to excuse this piracy with the argument that the piracy actually helps the copyright owner.
When the Chinese “steal" Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the value
of the software that was taken. But it gains users who are used to life in the Microsoft world. Over time, as the
nation grows more wealthy, more and more people will buy software rather than steal it. And hence over time,
because that buying will benefit Microsoft, Microsoft benefits from the piracy. If instead of pirating Microsoft
Windows, the Chinese used the free GNU/Linux operating system, then these Chinese users would not
eventually be buying Microsoft. Without piracy, then, Microsoft would lose.
This argument, too, is somewhat true. The addiction strategy is a good one. Many businesses practice it. Some
thrive because of it. Law students, for example, are given free access to the two largest legal databases. The
companies marketing both hope the students will become so used to their service that they will want to use it
and not the other when they become lawyers (and must pay high subscription fees).
Still, the argument is not terribly persuasive. We don't give the alcoholic a defense when he steals his first beer,
merely because that will make it more likely that he will buy the next three. Instead, we ordinarily allow
businesses to decide for themselves when it is best to give their product away. If Microsoft fears the competition
of GNU/Linux, then Microsoft can give its product away, as it did, for example, with Internet Explorer to fight
Netscape. A property right means giving the property owner the right to say who gets access to what—at least
ordinarily. And if the law properly balances the rights of the copyright owner with the rights of access, then
violating the law is still wrong.
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Thus, while I understand the pull of these justifications for piracy, and I certainly see the motivation, in my
view, in the end, these efforts at justifying commercial piracy simply don't cut it. This kind of piracy is rampant
and just plain wrong. It doesn't transform the content it steals; it doesn't transform the market it competes in. It
merely gives someone access to something that the law says he should not have. Nothing has changed to draw
that law into doubt. This form of piracy is flat out wrong.
But as the examples from the four chapters that introduced this part suggest, even if some piracy is plainly
wrong, not all “piracy” is. Or at least, not all “piracy” is wrong if that term is understood in the way it is
increasingly used today. Many kinds of “piracy” are useful and productive, to produce either new content or new
ways of doing business. Neither our tradition nor any tradition has ever banned all “piracy” in that sense of the
term.
This doesn't mean that there are no questions raised by the latest piracy concern, peer-to-peer file sharing. But it
does mean that we need to understand the harm in peer-to-peer sharing a bit more before we condemn it to the
gallows with the charge of piracy.
For (1) like the original Hollywood, p2p sharing escapes an overly controlling industry; and (2) like the original
recording industry, it simply exploits a new way to distribute content; but (3) unlike cable TV, no one is selling
the content that is shared on p2p services.
These differences distinguish p2p sharing from true piracy. They should push us to find a way to protect artists
while enabling this sharing to survive.
Piracy II
The key to the “piracy” that the law aims to quash is a use that “rob[s] the author of [his] profit.”
4
This means
we must determine whether and how much p2p sharing harms before we know how strongly the law should seek
to either prevent it or find an alternative to assure the author of his profit.
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
5
), 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.
6
Courts
quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular
p2p service. It boasts over 100 million members.) These services' systems are different architecturally, though
not very different in function: Each enables users to make content available to any number of other users. With a
p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends.
According to a number of estimates, a huge proportion of Americans have tasted file-sharing technology. A
study by Ipsos-Insight in September 2002 estimated that 60 million Americans had downloaded music—28
percent of Americans older than 12.
7
A survey by the NPD group quoted in The New York Times estimated that
43 million citizens used file-sharing networks to exchange content in May 2003.
8
The vast majority of these are
not kids. Whatever the actual figure, a massive quantity of content is being “taken” on these networks. The ease
and inexpensiveness of file-sharing networks have inspired millions to enjoy music in a way that they hadn't
before.
Some of this enjoying involves copyright infringement. Some of it does not. And even among the part that is
technically copyright infringement, calculating the actual harm to copyright owners is more complicated than
one might think. So consider—a bit more carefully than the polarized voices around this debate usually do—the
kinds of sharing that file sharing enables, and the kinds of harm it entails.
File sharers share different kinds of content. We can divide these different kinds into four types.
A. There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna
CD is released, rather than buying the CD, these users simply take it. We might quibble about whether everyone
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who takes it would actually have bought it if sharing didn't make it available for free. Most probably wouldn't
have, but clearly there are some who would. The latter are the target of category A: users who download instead
of purchasing.
B. There are some who use sharing networks to sample music before purchasing it. Thus, a friend sends another
friend an MP3 of an artist he's not heard of. The other friend then buys CDs by that artist. This is a kind of
targeted advertising, quite likely to succeed. If the friend recommending the album gains nothing from a bad
recommendation, then one could expect that the recommendations will actually be quite good. The net effect of
this sharing could increase the quantity of music purchased.
C. There are many who use sharing networks to get access to copyrighted content that is no longer sold or that
they would not have purchased because the transaction costs off the Net are too high. This use of sharing
networks is among the most rewarding for many. Songs that were part of your childhood but have long vanished
from the marketplace magically appear again on the network. (One friend told me that when she discovered
Napster, she spent a solid weekend “recalling" old songs. She was astonished at the range and mix of content
that was available.) For content not sold, this is still technically a violation of copyright, though because the
copyright owner is not selling the content anymore, the economic harm is zero—the same harm that occurs
when I sell my collection of 1960s 45-rpm records to a local collector.
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.
How do these different types of sharing balance out? Let's start with some simple but important points. From the
perspective of the law, only type D sharing is clearly legal. From the perspective of economics, only type A
sharing is clearly harmful.
9
Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, yet good
for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise
available). So how sharing matters on balance is a hard question to answer—and certainly much more difficult
than the current rhetoric around the issue suggests.
Whether on balance sharing is harmful depends importantly on how harmful type A sharing is. Just as Edison
complained about Hollywood, composers complained about piano rolls, recording artists complained about
radio, and broadcasters complained about cable TV, the music industry complains that type A sharing is a kind
of “theft” that is “devastating” the industry.
While the numbers do suggest that sharing is harmful, how harmful is harder to reckon. It has long been the
recording industry's practice to blame technology for any drop in sales. The history of cassette recording is a
good example. As a study by Cap Gemini Ernst & Young put it, “Rather than exploiting this new, popular
technology, the labels fought it.”
10
The labels claimed that every album taped was an album unsold, and when
record sales fell by 11.4 percent in 1981, the industry claimed that its point was proved. Technology was the
problem, and banning or regulating technology was the answer.
Yet soon thereafter, and before Congress was given an opportunity to enact regulation, MTV was launched, and
the industry had a record turnaround. “In the end,” Cap Gemini concludes, “the 'crisis' . . . was not the fault of
the tapers—who did not [stop after MTV came into being]—but had to a large extent resulted from stagnation in
musical innovation at the major labels.”
11
But just because the industry was wrong before does not mean it is wrong today. To evaluate the real threat that
p2p sharing presents to the industry in particular, and society in general—or at least the society that inherits the
tradition that gave us the film industry, the record industry, the radio industry, cable TV, and the VCR—the
question is not simply whether type A sharing is harmful. The question is also how harmful type A sharing is,
and how beneficial the other types of sharing are.
We start to answer this question by focusing on the net harm, from the standpoint of the industry as a whole, that
sharing networks cause. The “net harm” to the industry as a whole is the amount by which type A sharing
exceeds type B. If the record companies sold more records through sampling than they lost through substitution,
then sharing networks would actually benefit music companies on balance. They would therefore have little
static reason to resist them.
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Could that be true? Could the industry as a whole be gaining because of file sharing? Odd as that might sound,
the data about CD sales actually suggest it might be close.
In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 million to 803 million units;
revenues fell 6.7 percent.
12
This confirms a trend over the past few years. The RIAA blames Internet piracy for
the trend, though there are many other causes that could account for this drop. SoundScan, for example, reports
a more than 20 percent drop in the number of CDs released since 1999. That no doubt accounts for some of the
decrease in sales. Rising prices could account for at least some of the loss. “From 1999 to 2001, the average
price of a CD rose 7.2 percent, from $13.04 to $14.19.”
13
Competition from other forms of media could also
account for some of the decline. As Jane Black of BusinessWeek notes, “The soundtrack to the film High
Fidelity has a list price of $18.98. You could get the whole movie [on DVD] for $19.99.”
14
But let's assume the RIAA is right, and all of the decline in CD sales is because of Internet sharing. Here's the
rub: In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1
billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded
for free, sales revenue fell by just 6.7 percent.
There are too many different things happening at the same time to explain these numbers definitively, but one
conclusion is unavoidable: The recording industry constantly asks, “What's the difference between downloading
a song and stealing a CD?”—but their own numbers reveal the difference. If I steal a CD, then there is one less
CD to sell. Every taking is a lost sale. But on the basis of the numbers the RIAA provides, it is absolutely clear
that the same is not true of downloads. If every download were a lost sale—if every use of Kazaa “rob[bed] the
author of [his] profit”—then the industry would have suffered a 100 percent drop in sales last year, not a 7
percent drop. If 2.6 times the number of CDs sold were downloaded for free, and yet sales revenue dropped by
just 6.7 percent, then there is a huge difference between “downloading a song and stealing a CD.”
These are the harms—alleged and perhaps exaggerated but, let's assume, real. What of the benefits? File sharing
may impose costs on the recording industry. What value does it produce in addition to these costs?
One benefit is type C sharing—making available content that is technically still under copyright but is no longer
commercially available. This is not a small category of content. There are millions of tracks that are no longer
commercially available.
15
And while it's conceivable that some of this content is not available because the artist
producing the content doesn't want it to be made available, the vast majority of it is unavailable solely because
the publisher or the distributor has decided it no longer makes economic sense to the company to make it
available.
In real space—long before the Internet—the market had a simple response to this problem: used book and
record stores. There are thousands of used book and used record stores in America today.
16
These stores buy
content from owners, then sell the content they buy. And under American copyright law, when they buy and sell
this content, even if the content is still under copyright, the copyright owner doesn't get a dime. Used book and
record stores are commercial entities; their owners make money from the content they sell; but as with cable
companies before statutory licensing, they don't have to pay the copyright owner for the content they sell.
Type C sharing, then, is very much like used book stores or used record stores. It is different, of course, because
the person making the content available isn't making money from making the content available. It is also
different, of course, because in real space, when I sell a record, I don't have it anymore, while in cyberspace,
when someone shares my 1949 recording of Bernstein's “Two Love Songs,” I still have it. That difference would
matter economically if the owner of the 1949 copyright were selling the record in competition to my sharing.
But we're talking about the class of content that is not currently commercially available. The Internet is making
it available, through cooperative sharing, without competing with the market.
It may well be, all things considered, that it would be better if the copyright owner got something from this
trade. But just because it may well be better, it doesn't follow that it would be good to ban used book stores. Or
put differently, if you think that type C sharing should be stopped, do you think that libraries and used book
stores should be shut as well?
Finally, and perhaps most importantly, file-sharing networks enable type D sharing to occur—the sharing of
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content that copyright owners want to have shared or for which there is no continuing copyright. This sharing
clearly benefits authors and society. Science fiction author Cory Doctorow, for example, released his first novel,
Down and Out in the Magic Kingdom, both free on-line and in bookstores on the same day. His (and his
publisher's) thinking was that the on-line distribution would be a great advertisement for the “real” book. People
would read part on-line, and then decide whether they liked the book or not. If they liked it, they would be more
likely to buy it. Doctorow's content is type D content. If sharing networks enable his work to be spread, then
both he and society are better off. (Actually, much better off: It is a great book!)
Likewise for work in the public domain: This sharing benefits society with no legal harm to authors at all. If
efforts to solve the problem of type A sharing destroy the opportunity for type D sharing, then we lose
something important in order to protect type A content.
The point throughout is this: While the recording industry understandably says, “This is how much we've lost,
we must also ask, “How much has society gained from p2p sharing? What are the efficiencies? What is the
content that otherwise would be unavailable?
For unlike the piracy I described in the first section of this chapter, much of the “piracy” that file sharing enables
is plainly legal and good. And like the piracy I described in chapter 4, much of this piracy is motivated by a new
way of spreading content caused by changes in the technology of distribution. Thus, consistent with the tradition
that gave us Hollywood, radio, the recording industry, and cable TV, the question we should be asking about file
sharing is how best to preserve its benefits while minimizing (to the extent possible) the wrongful harm it causes
artists. The question is one of balance. The law should seek that balance, and that balance will be found only
with time.
“But isn't the war just a war against illegal sharing? Isn't the target just what you call type A sharing?”
You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing
alone has been felt far beyond that one class of sharing. That much is obvious from the Napster case itself.
When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of
identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough.
Napster had to push the infringements “down to zero.”
17
If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright
infringement. There is no way to assure that a p2p system is used 100 percent of the time in compliance with the
law, any more than there is a way to assure that 100 percent of VCRs or 100 percent of Xerox machines or 100
percent of handguns are used in compliance with the law. Zero tolerance means zero p2p. The court's ruling
means that we as a society must lose the benefits of p2p, even for the totally legal and beneficial uses they serve,
simply to assure that there are zero copyright infringements caused by p2p.
Zero tolerance has not been our history. It has not produced the content industry that we know today. The
history of American law has been a process of balance. As new technologies changed the way content was
distributed, the law adjusted, after some time, to the new technology. In this adjustment, the law sought to
ensure the legitimate rights of creators while protecting innovation. Sometimes this has meant more rights for
creators. Sometimes less.
So, as we've seen, when “mechanical reproduction” threatened the interests of composers, Congress balanced
the rights of composers against the interests of the recording industry. It granted rights to composers, but also to
the recording artists: Composers were to be paid, but at a price set by Congress. But when radio started
broadcasting the recordings made by these recording artists, and they complained to Congress that their
“creative property” was not being respected (since the radio station did not have to pay them for the creativity it
broadcast), Congress rejected their claim. An indirect benefit was enough.
Cable TV followed the pattern of record albums. When the courts rejected the claim that cable broadcasters had
to pay for the content they rebroadcast, Congress responded by giving broadcasters a right to compensation, but
at a level set by the law. It likewise gave cable companies the right to the content, so long as they paid the
statutory price.
This compromise, like the compromise affecting records and player pianos, served two important
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goals—indeed, the two central goals of any copyright legislation. First, the law assured that new innovators
would have the freedom to develop new ways to deliver content. Second, the law assured that copyright holders
would be paid for the content that was distributed. One fear was that if Congress simply required cable TV to
pay copyright holders whatever they demanded for their content, then copyright holders associated with
broadcasters would use their power to stifle this new technology, cable. But if Congress had permitted cable to
use broadcasters' content for free, then it would have unfairly subsidized cable. Thus Congress chose a path that
would assure compensation without giving the past (broadcasters) control over the future (cable).
In the same year that Congress struck this balance, two major producers and distributors of film content filed a
lawsuit against another technology, the video tape recorder (VTR, or as we refer to them today, VCRs) that
Sony had produced, the Betamax. Disney's and Universal's claim against Sony was relatively simple: Sony
produced a device, Disney and Universal claimed, that enabled consumers to engage in copyright infringement.
Because the device that Sony built had a “record” button, the device could be used to record copyrighted movies
and shows. Sony was therefore benefiting from the copyright infringement of its customers. It should therefore,
Disney and Universal claimed, be partially liable for that infringement.
There was something to Disney's and Universal's claim. Sony did decide to design its machine to make it very
simple to record television shows. It could have built the machine to block or inhibit any direct copying from a
television broadcast. Or possibly, it could have built the machine to copy only if there were a special “copy me"
signal on the line. It was clear that there were many television shows that did not grant anyone permission to
copy. Indeed, if anyone had asked, no doubt the majority of shows would not have authorized copying. And in
the face of this obvious preference, Sony could have designed its system to minimize the opportunity for
copyright infringement. It did not, and for that, Disney and Universal wanted to hold it responsible for the
architecture it chose.
MPAA president Jack Valenti became the studios' most vocal champion. Valenti called VCRs “tapeworms.” He
warned, “When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of
'tapeworms,' eating away at the very heart and essence of the most precious asset the copyright owner has, his
copyright.”
18
“One does not have to be trained in sophisticated marketing and creative judgment,” he told
Congress, “to understand the devastation on the after-theater marketplace caused by the hundreds of millions of
tapings that will adversely impact on the future of the creative community in this country. It is simply a question
of basic economics and plain common sense.”
19
Indeed, as surveys would later show, 45 percent of VCR
owners had movie libraries of ten videos or more
20
—a use the Court would later hold was not fair.” By
“allowing VCR owners to copy freely by the means of an exemption from copyright infringement without
creating a mechanism to compensate copyright owners,” Valenti testified, Congress would “take from the
owners the very essence of their property: the exclusive right to control who may use their work, that is, who
may copy it and thereby profit from its reproduction.”
21
It took eight years for this case to be resolved by the Supreme Court. In the interim, the Ninth Circuit Court of
Appeals, which includes Hollywood in its jurisdiction—leading Judge Alex Kozinski, who sits on that court,
refers to it as the “Hollywood Circuit”—held that Sony would be liable for the copyright infringement made
possible by its machines. Under the Ninth Circuit's rule, this totally familiar technology—which Jack Valenti
had called “the Boston Strangler of the American film industry” (worse yet, it was a Japanese Boston Strangler
of the American film industry)—was an illegal technology.
22
But the Supreme Court reversed the decision of the Ninth Circuit.
And in its reversal, the Court clearly articulated its understanding of when and whether courts should intervene
in such disputes. As the Court wrote,
Sound policy, as well as history, supports our consistent deference to Congress when major technological
innovations alter the market for copyrighted materials. Congress has the constitutional authority and the
institutional ability to accommodate fully the varied permutations of competing interests that are inevitably
implicated by such new technology.
23
Congress was asked to respond to the Supreme Court's decision. But as with the plea of recording artists about
radio broadcasts, Congress ignored the request. Congress was convinced that American film got enough, this
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“taking” notwithstanding.
If we put these cases together, a pattern is clear:
CASE WHOSE VALUE WAS
“PIRATED”
RESPONSE OF THE
COURTS
RESPONSE OF
CONGRESS
Recordings Composers No protection Statutory License
Radio Recording Artists N/A Nothing
Cable TV Broadcasters No protection Statutory License
VCR Film Creators No protection Nothing
In each case throughout our history, a new technology changed the way content was distributed.
24
In each case,
throughout our history, that change meant that someone got a “free ride” on someone else's work.
In none of these cases did either the courts or Congress eliminate all free riding. In none of these cases did the
courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright
created. In every case, the copyright owners complained of “piracy.” In every case, Congress acted to recognize
some of the legiti macy in the behavior of the “pirates.” In each case, Congress allowed some new technology to
benefit from content made before. It balanced the interests at stake.
When you think across these examples, and the other examples that make up the first four chapters of this
section, this balance makes sense. Was Walt Disney a pirate? Would doujinshi be better if creators had to ask
permission? Should tools that enable others to capture and spread images as a way to cultivate or criticize our
culture be better regulated? Is it really right that building a search engine should expose you to $15 million in
damages? Would it have been better if Edison had controlled film? Should every cover band have to hire a
lawyer to get permission to record a song?
We could answer yes to each of these questions, but our tradition has answered no. In our tradition, as the
Supreme Court has stated, copyright “has never accorded the copyright owner complete control over all possible
uses of his work.”
25
Instead, the particular uses that the law regulates have been defined by balancing the good
that comes from granting an exclusive right against the burdens such an exclusive right creates. And this
balancing has historically been done after a technology has matured, or settled into the mix of technologies that
facilitate the distribution of content.
We should be doing the same thing today. The technology of the Internet is changing quickly. The way people
connect to the Internet (wires vs. wireless) is changing very quickly. No doubt the network should not become a
tool for “stealing” from artists. But neither should the law become a tool to entrench one particular way in which
artists (or more accurately, distributors) get paid. As I describe in some detail in the last chapter of this book, we
should be securing income to artists while we allow the market to secure the most efficient way to promote and
distribute content. This will require changes in the law, at least in the interim. These changes should be designed
to balance the protection of the law against the strong public interest that innovation continue.
This is especially true when a new technology enables a vastly superior mode of distribution. And this p2p has
done. P2p technologies can be ideally efficient in moving content across a widely diverse network. Left to
develop, they could make the network vastly more efficient. Yet these “potential public benefits,” as John
Schwartz writes in The New York Times,could be delayed in the P2P fight.”
26
Yet when anyone begins to talk about “balance,” the copyright warriors raise a different argument. “All this
hand waving about balance and incentives,” they say, “misses a fundamental point. Our content,” the warriors
insist, “is our property. Why should we wait for Congress to 'rebalance' our property rights? Do you have to wait
before calling the police when your car has been stolen? And why should Congress deliberate at all about the
merits of this theft? Do we ask whether the car thief had a good use for the car before we arrest him?”
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“It is our property,” the warriors insist. “And it should be protected just as any other property is protected.”
“PROPERTY”
The copyright warriors are right: A copyright is a kind of property. It can be owned and sold, and the law
protects against its theft. Ordinarily, the copyright owner gets to hold out for any price he wants. Markets reckon
the supply and demand that partially determine the price she can get.
But in ordinary language, to call a copyright a “property” right is a bit misleading, for the property of copyright
is an odd kind of property. Indeed, the very idea of property in any idea or any expression is very odd. I
understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the
picnic table, and after I take it, you don't have it. But what am I taking when I take the good idea you had to put
a picnic table in the backyard—by, for example, going to Sears, buying a table, and putting it in my backyard?
What is the thing I am taking then?
The point is not just about the thingness of picnic tables versus ideas, though that's an important difference. The
point instead is that in the ordinary case—indeed, in practically every case except for a narrow range of
exceptions—ideas released to the world are free. I don't take anything from you when I copy the way you
dress—though I might seem weird if I did it every day, and especially weird if you are a woman. Instead, as
Thomas Jefferson said (and as is especially true when I copy the way someone else dresses), “He who receives
an idea from me, receives instruction himself without lessening mine; as he who