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Title: The Public Domain
Enclosing the Commons of the Mind
Author: James Boyle
Release Date: December 13, 2008 [eBook #27526]
Language: English
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Copyright (C) 2008 by James Boyle.
The Public Domain
Enclosing the Commons of the Mind
by James Boyle
In this enlightening book James Boyle describes what he calls
the range wars of the information age--today's heated battles
over intellectual property. Boyle argues that just as every
informed citizen needs to know at least something about the
environment or civil rights, every citizen should also
understand intellectual property law. Why? Because intellectual
property rights mark out the ground rules of the information
society, and today's policies are unbalanced, unsupported by
evidence, and often detrimental to cultural access, free speech,
digital creativity, and scientific innovation.
Boyle identifies as a major problem the widespread failure to
understand the importance of the public domain--the realm of
material that everyone is free to use and share without
permission or fee. The public domain is as vital to innovation
and culture as the realm of material protected by intellectual
property rights, he asserts, and he calls for a movement akin to
the environmental movement to preserve it. With a clear analysis
of issues ranging from Jefferson's philosophy of innovation to
musical sampling, synthetic biology and Internet file sharing,
this timely book brings a positive new perspective to important
cultural and legal debates. If we continue to enclose the
"commons of the mind," Boyle argues, we will all be the poorer.
Professor James Boyle's website: www.thepublicdomain.org
James Boyle is William Neal Reynolds Professor of Law and co-
founder of the Center for the Study of the Public Domain Duke
Law School. He joined the faculty in July 2000. He has also
taught at American University, Yale, Harvard, and the University
of Pennsylvania Law School. He is the author of Shamans,
Software and Spleens: Law and Construction of the Information
Society and The Shakespeare Chronicles, a novel about the search
for the true author of Shakespeare's works. He co-authored Bound
By Law, (CSPD 2006) an educational comic book on fair use in
documentary film, and is the editor of Critical Legal Studies
(Dartmouth/NYU Press 1994), and Collected Papers on the Public
Domain (Duke: L&CP 2003). In 2003 he won the World Technology
Award for Law for his work on the "intellectual ecology" of the
public domain, and on the new "enclosure movement" that
threatens it; (a disappointing amount of which was foretold in
his 1996 New York Times article on the subject.) Professor
Boyle has written on legal and social theory, on issues ranging
from political correctness to constitutional interpretation and
from the social contract to the authorship debate in law and
literature.
For the last ten years, his work has focused on intellectual
property. His essays include The Second Enclosure Movement, a
study of the economic rhetoric of price discrimination in
digital commerce, and a Manifesto on WIPO. His shorter pieces
include Missing the Point on Microsoft, a speech to the
Federalist Society called Conservatives and Intellectual
Property, and numerous newspaper articles on law, technology
and culture. His book reviews on social theory and the
environment, the naturalistic fallacy in environmentalism, and
on competing approaches to copyright have appeared in the Times
Literary Supplement. He currently writes as an online columnist
for the Financial Times' New Economy Policy Forum. Professor
Boyle teaches Intellectual Property, the Constitution in
Cyberspace, Law and Literature, Jurisprudence and Torts. He is
a Board Member of Creative Commons which is working to
facilitate the free availability of art, scholarship, and
cultural materials by developing innovative, machine-readable
licenses that individuals and institutions can attach to their
work, and of Science Commons, which aims to expand the Creative
Commons mission into the realm of scientific and technical data.
He also leads the steering committee which is setting up the
Learning Commons, a division of Creative Commons aimed at
facilitating access to open education resources. He is a member
of the academic advisory boards of the Electronic Privacy and
Information Center, the Connexions open-source courseware
project, and of Public Knowledge. In 2006 he received the Duke
Bar Association Distinguished Teaching Award.
Yale University Press
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The Public Domain
Enclosing the Commons of the Mind
by James Boyle
Preface: Comprised of at Least Jelly?
1
Each person has a different breaking point. For one of my
students it was United States Patent number 6,004,596 for a
"Sealed Crustless Sandwich." In the curiously mangled form of
English that patent law produces, it was described this way:
2
A sealed crustless sandwich for providing a convenient
sandwich without an outer crust which can be stored for long
periods of time without a central filling from leaking
outwardly. The sandwich includes a lower bread portion, an upper
bread portion, an upper filling and a lower filling between the
lower and upper bread portions, a center filling sealed between
the upper and lower fillings, and a crimped edge along an outer
perimeter of the bread portions for sealing the fillings there
between. The upper and lower fillings are preferably comprised
of peanut butter and the center filling is comprised of at least
jelly. The center filling is prevented from radiating outwardly
into and through the bread portions from the surrounding peanut
butter.1
3
"But why does this upset you?" I asked; "you've seen much worse
than this." And he had. There are patents on human genes, on
auctions, on algorithms.2 The U.S. Olympic Committee has an
expansive right akin to a trademark over the word "Olympic" and
will not permit gay activists to hold a "Gay Olympic Games." The
Supreme Court sees no First Amendment problem with this.3
Margaret Mitchell's estate famously tried to use copyright to
prevent Gone With the Wind from being told from a slave's point
of view.4 The copyright over the words you are now reading will
not expire until seventy years after my death; the men die young
in my family, but still you will allow me to hope that this
might put it close to the year 2100. Congress periodically
considers legislative proposals that would allow the ownership
of facts.5 The Digital Millennium Copyright Act gives content
providers a whole array of legally protected digital fences to
enclose their work.6 In some cases it effectively removes the
privilege of fair use. Each day brings some new Internet horror
story about the excesses of intellectual property. Some of them
are even true. The list goes on and on. (By the end of this
book, I hope to have convinced you that this matters.) With all
of this going on, this enclosure movement of the mind, this
locking up of symbols and themes and facts and genes and ideas
(and eventually people), why get excited about the patenting of
a peanut butter and jelly sandwich? "I just thought that there
were limits," he said; "some things should be sacred."
4
This book is an attempt to tell the story of the battles over
intellectual property, the range wars of the information age. I
want to convince you that intellectual property is important,
that it is something that any informed citizen needs to know a
little about, in the same way that any informed citizen needs to
know at least something about the environment, or civil rights,
or the way the economy works. I will try my best to be fair, to
explain the issues and give both sides of the argument. Still,
you should know that this is more than mere description. In the
pages that follow, I try to show that current intellectual
property policy is overwhelmingly and tragically bad in ways
that everyone, and not just lawyers or economists, should care
about. We are making bad decisions that will have a negative
effect on our culture, our kids' schools, and our communications
networks; on free speech, medicine, and scientific research. We
are wasting some of the promise of the Internet, running the
risk of ruining an amazing system of scientific innovation,
carving out an intellectual property exemption to the First
Amendment. I do not write this as an enemy of intellectual
property, a dot-communist ready to end all property rights; in
fact, I am a fan. It is precisely because I am a fan that I am
so alarmed about the direction we are taking.
5
Still, the message of this book is neither doom nor gloom. None
of these decisions is irrevocable. The worst ones can still be
avoided altogether, and there are powerful counterweights in
both law and culture to the negative trends I describe here.
There are lots of reasons for optimism. I will get to most of
these later, but one bears mentioning now. Contrary to what
everyone has told you, the subject of intellectual property is
both accessible and interesting; what people can understand,
they can change--or pressure their legislators to change.
6
I stress this point because I want to challenge a kind of willed
ignorance. Every news story refers to intellectual property as
"arcane," "technical," or "abstruse" in the same way as they
referred to former attorney general Alberto Gonzales as
"controversial." It is a verbal tic and it serves to reinforce
the idea that this is something about which popular debate is
impossible. But it is also wrong. The central issues of
intellectual property are not technical, abstruse, or arcane. To
be sure, the rules of intellectual property law can be as
complex as a tax code (though they should not be). But at the
heart of intellectual property law are a set of ideas that a
ten-year-old can understand perfectly well. (While writing this
book, I checked this on a ten-year-old I then happened to have
around the house.) You do not need to be a scientist or an
economist or a lawyer to understand it. The stuff is also a lot
of fun to think about. I live in constant wonder that they pay
me to do so.
7
Should you be able to tell the story of Gone With the Wind from
a slave's point of view even if the author does not want you to?
Should the Dallas Cowboys be able to stop the release of Debbie
Does Dallas, a cheesy porno flick, in which the title character
brings great dishonor to a uniform similar to that worn by the
Dallas Cowboys Cheerleaders? (After all, the audience might end
up associating the Dallas Cowboys Cheerleaders with . . . well,
commodified sexuality.) 7
8
Should the U.S. Commerce Department be able to patent the genes
of a Guyami Indian woman who shows an unusual resistance to
leukemia?8 What would it mean to patent someone's genes, anyway?
Forbidding scientific research on the gene without the patent
holder's consent? Forbidding human reproduction? Can religions
secure copyrights over their scriptures? Even the ones they
claim to have been dictated by gods or aliens? Even if American
copyright law requires "an author," presumably a human one?9 Can
they use those copyrights to discipline heretics or critics who
insist on quoting the scripture in full?
9
Should anyone own the protocols--the agreed-upon common technical
standards--that make the Internet possible? Does reading a Web
page count as "copying" it?10 Should that question depend on
technical "facts" (for example, how long the page stays in your
browser's cache) or should it depend on some choice that we want
to make about the extent of the copyright holder's rights?
10
These questions may be hard, because the underlying moral and
political and economic issues need to be thought through. They
may be weird; alien scriptural dictation might qualify there.
They surely aren't uninteresting, although I admit to a certain
prejudice on that point. And some of them, like the design of
our telecommunications networks, or the patenting of human
genes, or the relationship between copyright and free speech,
are not merely interesting, they are important. It seems like a
bad idea to leave them to a few lawyers and lobbyists simply
because you are told they are "technical."
11
So the first goal of the book is to introduce you to
intellectual property, to explain why it matters, why it is the
legal form of the information age. The second goal is to
persuade you that our intellectual property policy is going the
wrong way; two roads are diverging and we are on the one that
doesn't lead to Rome.
12
The third goal is harder to explain. We have a simple word for,
and an intuitive understanding of, the complex reality of
"property." Admittedly, lawyers think about property differently
from the way lay-people do; this is only one of the strange
mental changes that law school brings. But everyone in our
society has a richly textured understanding of "mine" and
"thine," of rights of exclusion, of division of rights over the
same property (for example, between tenant and landlord), of
transfer of rights in part or in whole (for example, rental or
sale). But what about the opposite of property--property's
antonym, property's outside? What is it? Is it just stuff that
is not worth owning--abandoned junk? Stuff that is not yet
owned--such as a seashell on a public beach, about to be taken
home? Or stuff that cannot be owned--a human being, for example?
Or stuff that is collectively owned--would that be the radio
spectrum or a public park? Or stuff that is owned by no one,
such as the deep seabed or the moon? Property's outside, whether
it is "the public domain" or "the commons," turns out to be
harder to grasp than its inside. To the extent that we think
about property's outside, it tends to have a negative
connotation; we want to get stuff out of the lost-and-found
office and back into circulation as property. We talk of "the
tragedy of the commons,"11 meaning that unowned or collectively
owned resources will be managed poorly; the common pasture will
be overgrazed by the villagers' sheep because no one has an
incentive to hold back.
13
When the subject is intellectual property, this gap in our
knowledge turns out to be important because our intellectual
property system depends on a balance between what is property
and what is not. For a set of reasons that I will explain later,
"the opposite of property" is a concept that is much more
important when we come to the world of ideas, information,
expression, and invention. We want a lot of material to be in
the public domain, material that can be spread without property
rights. "The general rule of law is, that the noblest of human
productions--knowledge, truths ascertained, conceptions, and
ideas--become, after voluntary communication to others, free as
the air to common use."12 Our art, our culture, our science
depend on this public domain every bit as much as they depend on
intellectual property. The third goal of this book is to explore
property's outside, property's various antonyms, and to show how
we are undervaluing the public domain and the information
commons at the very moment in history when we need them most.
Academic articles and clever legal briefs cannot solve this
problem alone.
14
Instead, I argue that precisely because we are in the
information age, we need a movement--akin to the environmental
movement--to preserve the public domain. The explosion of
industrial technologies that threatened the environment also
taught us to recognize its value. The explosion of information
technologies has precipitated an intellectual land grab; it must
also teach us about both the existence and the value of the
public domain. This enlightenment does not happen by itself. The
environmentalists helped us to see the world differently, to see
that there was such a thing as "the environment" rather than
just my pond, your forest, his canal. We need to do the same
thing in the information environment.
15
We have to "invent" the public domain before we can save it.
16
A word about style. I am trying to write about complicated
issues, some of which have been neglected by academic
scholarship, while others have been catalogued in detail. I want
to advance the field, to piece together the story of the second
enclosure movement, to tell you something new about the balance
between property and its opposite. But I want to do so in a way
that is readable. For those in my profession, being readable is
a dangerous goal. You have never heard true condescension until
you have heard academics pronounce the word "popularizer." They
say it as Isadora Duncan might have said "dowdy." To be honest,
I share their concern. All too often, clarity is achieved by
leaving out the key qualification necessary to the argument, the
subtlety of meaning, the inconvenient empirical evidence.
17
My solution is not a terribly satisfactory one. A lot of
material has been exiled to endnotes. The endnotes for each
chapter also include a short guide to further reading. I have
used citations sparingly, but more widely than an author of a
popular book normally does, so that the scholarly audience can
trace out my reasoning. But the core of the argument is in the
text.
18
The second balance I have struggled to hit is that between
breadth and depth. The central thesis of the book is that the
line between intellectual property and the public domain is
important in every area of culture, science, and technology. As
a result, it ranges widely in subject matter. Yet readers come
with different backgrounds, interests, and bodies of knowledge.
As a result, the structure of the book is designed to facilitate
self-selection based on interest. The first three chapters and
the conclusion provide the theoretical basis. Each chapter
builds on those themes, but is also designed to be largely
freestanding. The readers who thrill to the idea that there
might be constitutional challenges to the regulation of digital
speech by copyright law may wallow in those arguments to their
hearts' content. Others may quickly grasp the gist and head on
for the story of how Ray Charles's voice ended up in a mashup
attacking President Bush, or the discussion of genetically
engineered bacteria that take photographs and are themselves the
subject of intellectual property rights. To those readers who
nevertheless conclude that I have failed to balance correctly
between precision and clarity, or breadth and depth, I offer my
apologies. I fear you may be right. It was not for want of
trying.
Chapter 1: Why Intellectual Property
1
Imagine yourself starting a society from scratch. Perhaps you
fought a revolution, or perhaps you led a party of adventurers
into some empty land, conveniently free of indigenous peoples.
Now your task is to make the society work. You have a preference
for democracy and liberty and you want a vibrant culture: a
culture with a little chunk of everything, one that offers
hundreds of ways to live and thousands of ideals of beauty. You
don't want everything to be high culture; you want beer and
skittles and trashy delights as well as brilliant news
reporting, avant-garde theater, and shocking sculpture. You can
see a role for highbrow, state-supported media or publicly
financed artworks, but your initial working assumption is that
the final arbiter of culture should be the people who watch,
read, and listen to it, and who remake it every day. And even if
you are dubious about the way popular choice gets formed, you
prefer it to some government funding body or coterie of art
mavens.
2
At the same time as you are developing your culture, you want a
flourishing economy--and not just in literature or film. You want
innovation and invention. You want drugs that cure terrible
diseases, and designs for more fuel-efficient stoves, and useful
little doodads, like mousetraps, or Post-it notes, or solar-
powered backscratchers. To be exact, you want lots of innovation
but you do not know exactly what innovation or even what types
of innovation you want.
3
Given scarce time and resources, should we try to improve
typewriters or render them obsolete with word processors, or
develop functional voice recognition software, or just
concentrate on making solar-powered backscratchers? Who knew
that they needed Post-it notes or surgical stents or specialized
rice planters until those things were actually developed? How do
you make priorities when the priorities include things you
cannot rationally value because you do not have them yet? How do
you decide what to fund and when to fund it, what desires to
trade off against each other?
4
The society you have founded normally relies on market signals
to allocate resources. If a lot of people want petunias for
their gardens, and are willing to pay handsomely for them, then
some farmer who was formerly growing soybeans or gourds will
devote a field to petunias instead. He will compete with the
other petunia sellers to sell them to you. Voila! We do not need
a state planner to consult the vegetable five-year plan and
decree "Petunias for the People!" Instead, the decision about
how to deploy society's productive resources is being made
"automatically," cybernetically even, by rational individuals
responding to price signals. And in a competitive market, you
will get your petunias at very close to the cost of growing them
and bringing them to market. Consumer desires are satisfied and
productive resources are allocated efficiently. It's a tour de
force.
5
Of course, there are problems. The market measures the value of
a good by whether people have the ability and willingness to pay
for it, so the whims of the rich may be more "valuable" than the
needs of the destitute. We may spend more on pet psychiatry for
the traumatized poodles on East 71st Street than on developing a
cure for sleeping sickness, because the emotional wellbeing of
the pets of the wealthy is "worth more" than the lives of the
tropical world's poor. But for a lot of products, in a lot of
areas, the market works--and that is a fact not to be taken for
granted.
6
Why not use this mechanism to meet your cultural and innovation
needs? If people need Madame Bovary or The New York Times or a
new kind of antibiotic, surely the market will provide it?
Apparently not. You have brought economists with you into your
brave new world--perhaps out of nostalgia, or because a lot of
packing got done at the last minute. The economists shake their
heads.1 The petunia farmer is selling something that is "a
rivalrous good." If I have the petunia, you can't have it.
What's more, petunias are "excludable." The farmer only gives
you petunias when you pay for them. It is these factors that
make the petunia market work. What about Madame Bovary, or the
antibiotic, or The New York Times? Well, it depends. If books
have to be copied out by hand, then Madame Bovary is just like
the petunia. But if thousands of copies of Madame Bovary can be
printed on a printing press, or photocopied, or downloaded from
www.flaubertsparrot.com, then the book becomes something that is
nonrival; once Madame Bovary is written, it can satisfy many
readers with little additional effort or cost. Indeed, depending
on the technologies of reproduction, it may be very hard to
exclude people from Madame Bovary.
7
Imagine a Napster for French literature; everyone could have
Madame Bovary and only the first purchaser would have to pay for
it. Because of these "nonrival" and "nonexcludable"
characteristics, Flaubert's publisher would have a more
difficult time coming up with a business plan than the petunia
farmer. The same is true for the drug company that invests
millions in screening and testing various drug candidates and
ends up with a new antibiotic that is both safe and effective,
but which can be copied for pennies. Who will invest the money,
knowing that any product can be undercut by copies that don't
have to pay the research costs? How are authors and publishers
and drug manufacturers to make money? And if they can't make
money, how are we to induce people to be authors or to be the
investors who put money into the publishing or pharmaceutical
business?
8
It is important to pause at this point and inquire how closely
reality hews to the economic story of "nonexcludable" and
"nonrival" public goods. It turns out that the reality is much
more complex. First, there may be motivations for creation that
do not depend on the market mechanism. People sometimes create
because they seek fame, or out of altruism, or because an
inherent creative force will not let them do otherwise. Where
those motivations operate, we may not need a financial incentive
to create. Thus the "problem" of cheap copying in fact becomes a
virtue. Second, the same technologies that make copying cheaper
may also lower the costs of advertising and distribution,
cutting down on the need to finance expensive distribution
chains. Third, even in situations that do require incentives for
creativity and for distribution, it may be that being "first to
market" with an innovation provides the innovator with enough of
a head start on the competition to support the innovation.2
Fourth, while some aspects of the innovation may truly be
nonrival, other aspects may not. Software is nonrival and hard
to exclude people from, but it is easy to exclude your customers
from the help line or technical support. The CD may be copied
cheaply; the concert is easy to police. The innovator may even
be advantaged by being able to trade on the likely effects of
her innovation. If I know I have developed the digital camera, I
may sell the conventional film company's shares short.
Guarantees of authenticity, quality, and ease of use may attract
purchasers even if unauthorized copying is theoretically
cheaper.
9
In other words, the economic model of pure public goods will
track our reality well in some areas and poorly in others--and
the argument for state intervention to fix the problems of
public goods will therefore wax and wane correspondingly. In the
case of drug patents, for example, it is very strong. For lots
of low-level business innovation, however, we believe that
adequate incentives are provided by being first to market, and
so we see no need to give monopoly power to the first business
to come up with a new business plan--at least we did not until
some disastrous patent law decisions discussed later in this
book. Nor does a lowering of copying costs hurt every industry
equally. Digital copies of music were a threat to the
traditional music business, but digital copies of books? I am
skeptical. This book will be freely and legally available online
to all who wish to copy it. Both the publisher and I believe
that this will increase rather than decrease sales.
10
Ignore these inconvenient complicating factors for a moment.
Assume that wherever things are cheap to copy and hard to
exclude others from, we have a potential collapse of the market.
That book, that drug, that film will simply not be produced in
the first place--unless the state steps in somehow to change the
equation. This is the standard argument for intellectual
property rights. And a very good argument it is. In order to
solve the potentially "marketbreaking" problem of goods that are
expensive to make and cheap to copy, we will use what my
colleague Jerry Reichman calls the "market-making" device of
intellectual property. The state will create a right to exclude
others from the invention or the expression and confer it on the
inventor or the author. The most familiar rights of this kind
are copyrights and patents. (Trademarks present some special
issues, which I will address a little later.) Having been given
the ability to forbid people to copy your invention or your
novel, you can make them pay for the privilege of getting
access. You have been put back in the position of the petunia
farmer.
11
Pause for a moment and think of what a brilliant social
innovation this is--at least potentially. Focus not on the
incentives alone, but on the decentralization of information
processing and decision making that a market offers. Instead of
having ministries of art that define the appropriate culture to
be produced this year, or turning the entire path of national
innovation policy over to the government, intellectual property
decentralizes the choices about what creative and innovative
paths to pursue while retaining the possibility that people will
actually get paid for their innovation and creative expression.
1
12
The promise of copyright is this: if you are a radical
environmentalist who wants to alert the world to the danger
posed by climate change, or a passionate advocate of
homeschooling, or a cartoonist with a uniquely twisted view of
life, or a musician who can make a slack key guitar do very
strange things, or a person who likes to take amazingly
saccharine pictures of puppies and put them on greeting
cards--maybe you can quit your day job and actually make a living
from your expressive powers. If the market works, if the
middlemen and distributors are smart enough, competitive enough,
and willing to take a chance on expression that competes with
their in-house talent, if you can make it somehow into the
public consciousness, then you can be paid for allowing the
world to copy, distribute, and perform your stuff. You risk your
time and your effort and your passion and, if the market likes
it, you will be rewarded. (At the very least, the giant
producers of culture will be able to assemble vast teams of
animators and musicians and software gurus and meld their labors
into a videotape that will successfully anesthetize your
children for two hours; no small accomplishment, let me tell
you, and one for which people will certainly pay.)
13
More importantly, if the system works, the choices about the
content of our culture--the mix of earnest essays and saccharine
greeting cards and scantily clad singers and poetic renditions
of Norse myths--will be decentralized to the people who actually
read, or listen to, or watch the stuff. This is our cultural
policy and it is driven, in part, by copyright.
14
The promise of patent is this: we have a multitude of human
needs and a multitude of individuals and firms who might be able
to satisfy those needs through innovation. Patent law offers us
a decentralized system that, in principle, will allow
individuals and firms to pick the problem that they wish to
solve. Inventors and entrepreneurs can risk their time and their
capital and, if they produce a solution that finds favor in the
marketplace, will be able to reap the return provided by the
legal right to exclude--by the legal monopoly over the resulting
invention. The market hints at some unmet need--for drugs that
might reduce obesity or cure multiple sclerosis, or for Post-it
notes or windshield wipers that come on intermittently in light
rain--and the innovator and her investors make a bet that they
can meet that need. (Not all of these technologies will be
patentable--only those that are novel and "nonobvious," something
that goes beyond what any skilled person in the relevant field
would have done.)
15
In return for the legal monopoly, patent holders must describe
the technology well enough to allow anyone to replicate it once
the patent term ends. Thus patent law allows us to avert two
dangers: the danger that the innovation will languish because
the inventor has no way to recover her investment of time and
capital, and the danger that the inventor will turn to secrecy
instead, hiding the details of her innovation behind black box
technologies and restrictive contracts, so that society never
gets the knowledge embedded in it. (This is a real danger. The
medieval guilds often relied on secrecy to maintain the
commercial advantage conveyed by their special skills, thus
slowing progress down and sometimes simply stopping it. We still
don't know how they made Stradivarius violins sound so good.
Patents, by contrast, keep the knowledge public, at least in
theory;3 you must describe it to own it.) And again, decisions
about the direction of innovation have been largely, though not
entirely, decentralized to the people who actually might use the
products and services that result. This is our innovation policy
and it is increasingly driven by patent.
16
What about the legal protection of trademarks, the little words
or symbols or product shapes that identify products for us? Why
do we have trademark law, this "homestead law for the English
language"?4 Why not simply allow anyone to use any name or
attractive symbol that they want on their products, even if
someone else used it first? A trademark gives me a limited right
to exclude other people from using my mark, or brand name, or
product shape, just as copyright and patent law give me a
limited right to exclude other people from my original
expression or my novel invention. Why create such a right and
back it with the force of law?
17
According to the economists, the answer is that trademark law
does two things. It saves consumers time. We have good reason to
believe that a soap that says "Ivory" or a tub of ice cream that
says "Häagen-Dazs" will be made by the same manufacturer that
made the last batch of Ivory soap or Häagen-Dazs ice cream. If
we liked the good before and we see the symbol again, we know
what we are getting. I can work out what kind of soap, ice
cream, or car I like, and then just look for the appropriate
sign rather than investigating the product all over again each
time I buy. That would be wasteful and economists hate waste. At
the same time, trademarks fulfill a second function: they are
supposed to give manufacturers an incentive to make good
products--or at least to make products of consistent quality or
price--to build up a good brand name and invest in consistency of
its key features, knowing that no other firm can take their name
or symbol. (Why produce a high-quality product, or a reliable
cheap product, and build a big market share if a free rider
could wait until people liked the product and then just produce
an imitation with the same name but of lower quality?) The
promise of trademark is that quality and commercial information
flow regulate themselves, with rational consumers judging among
goods of consistent quality produced by manufacturers with an
interest in building up long-term reputation.
18
So there we have the idealized vision of intellectual property.
It is not merely supposed to produce incentives for innovation
by rewarding creators, though that is vital. Intellectual
property is also supposed to create a feedback mechanism that
dictates the contours of information and innovation production.
It is not an overstatement to say that intellectual property
rights are designed to shape our information marketplace.
Copyright law is supposed to give us a self-regulating cultural
policy in which the right to exclude others from one's original
expression fuels a vibrant public sphere indirectly driven by
popular demand. At its best, it is supposed to allow a
decentralized and iconoclastic cultural ferment in which
independent artists, musicians, and writers can take their
unique visions, histories, poems, or songs to the world--and make
a living doing so if their work finds favor. Patent law is
supposed to give us a self-regulating innovation policy in which
the right to exclude others from novel and useful inventions
creates a cybernetic and responsive innovation marketplace. The
allocation of social resources to particular types of innovation
is driven by guesses about what the market wants. Trademark law
is supposed to give us a self-regulating commercial information
policy in which the right to exclude others from one's trade
name, symbol, or slogan produces a market for consumer
information in which firms have incentives to establish quality
brand names and consumers can rely on the meaning and the
stability of the logos that surround them. Ivory soap will
always mean Ivory soap and Coke will mean Coke, at least until
the owners of those marks decide to change the nature of their
products.
19
Some readers will find my use of the term "intellectual
property" mistaken and offensive. They will argue, and I agree,
that the use of the term "property" can cause people mistakenly
to conflate these rights with those to physical property. (I
outline that process and its negative consequences in the next
chapter.) They will argue, and again I agree, that there are big
differences between the three fields I have described. Should we
not just list the specific rights about which we are
speaking--copyright, patent, or trademark? Both of these concerns
are real and well-founded, but I respectfully disagree with the
conclusion that we should give up the term "intellectual
property."
20
First, as I have tried to show above, while there are
considerable differences between the three fields I discussed,
there is also a core similarity--the attempt to use a legally
created privilege to solve a potential "public goods problem."
That similarity can enlighten as well as confuse. Yes, copyright
looks very different from patent, just as a whale looks very
different from a mouse. But we do not condemn the scientist who
notes that they are both "mammals"--a socially constructed
category--so long as he has a reason for focusing on that
commonality. Second, the language of intellectual property
exists. It has political reality in the world. Sometimes the
language confuses and misleads. There are two possible reactions
to such a reality. One can reject it and insist on a different
and "purified" nomenclature, or one can attempt to point out the
misperceptions and confusions using the very language in which
they are embedded. I do not reject the first tactic. It can be
useful. Here, though, I have embraced the second.
21
I have provided the idealized story of intellectual property.
But is it true? Did the law really develop that way? Does it
work that way now? Does this story still apply in the world of
the Internet and the Human Genome Project? If you believed the
idealized story, would you know what kind of intellectual
property laws to write? The answer to all of these questions is
"not exactly."
22
Like most social institutions, intellectual property has an
altogether messier and more interesting history than this
sanitized version of its functioning would suggest. The
precursors of copyright law served to force the identification
of the author, so that he could be punished if he proved to be a
heretic or a revolutionary. The Statute of Anne--the first true
copyright statute--was produced partly because of publishers'
fights with booksellers; the authorial right grew as an
afterthought.5 The history of patents includes a wealth of
attempts to reward friends of the government and restrict or
control dangerous technologies. Trademark law has shuttled
uneasily between being a free-floating way to police competition
so as to prohibit actions that courts thought were "unfair" and
an absolute property right over an individual word or symbol.
23
But does intellectual property work this way now, promoting the
ideal of progress, a transparent marketplace, easy and cheap
access to information, decentralized and iconoclastic cultural
production, self-correcting innovation policy? Often it does,
but distressingly often it does the reverse. The rights that
were supposed to be limited in time and scope to the minimum
monopoly necessary to ensure production become instead a kind of
perpetual corporate welfare--restraining the next generation of
creators instead of encouraging them. The system that was
supposed to harness the genius of both the market and democracy
sometimes subverts both. Worse, it does so inefficiently,
locking up vast swaths of culture in order to confer a benefit
on a tiny minority of works. But this is too abstract. A single
instance from copyright law will serve as a concrete example of
what is at stake here. Later in the book I will give other
examples.
24
YOU'LL GET MY LIBRARY OF
CONGRESS WHEN . . .
25
Go to the Library of Congress catalogue. It is online at
http://catalog.loc.gov/. This is an astounding repository of
material--not just books and periodicals, but pictures, films,
and music. The vast majority of this material, perhaps as much
as 95 percent in the case of books, is commercially
unavailable.6 The process happens comparatively quickly.
Estimates suggest that a mere twenty-eight years after
publication 85 percent of the works are no longer being
commercially produced. (We know that when U.S. copyright
required renewal after twenty-eight years, about 85 percent of
all copyright holders did not bother to renew. This is a
reasonable, if rough, guide to commercial viability.)7
26
Yet because the copyright term is now so long, in many cases
extending well over a century, most of twentieth-century culture
is still under copyright--copyrighted but unavailable. Much of
this, in other words, is lost culture. No one is reprinting the
books, screening the films, or playing the songs. No one is
allowed to. In fact, we may not even know who holds the
copyright. Companies have gone out of business. Records are
incomplete or absent. In some cases, it is even more
complicated. A film, for example, might have one copyright over
the sound track, another over the movie footage, and another
over the script. You get the idea. These works--which are
commercially unavailable and also have no identifiable copyright
holder--are called "orphan works." They make up a huge percentage
of our great libraries' holdings. For example, scholars estimate
that the majority of our film holdings are orphan works.8 For
books, the estimates are similar. Not only are these works
unavailable commercially, there is simply no way to find and
contact the person who could agree to give permission to
digitize the work or make it available in a new form.
27
Take a conservative set of numbers. Subtract from our totals the
works that are clearly in the public domain. In the United
States, that is generally work produced before 1923. That
material, at least, we can use freely. Subtract, too, the works
that are still available from the copyright holder. There we can
gain access if we are willing to pay. Yet this still leaves a
huge proportion of twentieth- and twenty-first-century culture
commercially unavailable but under copyright. In the case of
books, the number is over 95 percent, as I said before; with
films and music, it is harder to tell, but the percentages are
still tragically high. A substantial proportion of that total is
made up of orphan works. They cannot be reprinted or digitized
even if we were willing to pay the owner to do so. And then
comes the Internet. Right now, you can search for those books or
films or songs and have the location of the work instantly
displayed, as well as a few details about it. And if you live in
Washington, D.C., or near some other great library, you can go
to a reading room, and if the work can be found and has not been
checked out, and has not deteriorated, you can read the books
(though you probably will not be able to arrange to see the
movies unless you are an accredited film scholar).
28
I was searching the Library of Congress catalogue online one
night, tracking down a seventy-year-old book about politics and
markets, when my son came in to watch me. He was about eight
years old at the time but already a child of the Internet age.
He asked what I was doing and I explained that I was printing
out the details of the book so that I could try to find it in my
own university library. "Why don't you read it online?" he said,
reaching over my shoulder and double-clicking on the title,
frowning when that merely led to another information page: "How
do you get to read the actual book?" I smiled at the assumption
that all the works of literature were not merely in the Library
of Congress, but actually on the Net: available to anyone with
an Internet connection anywhere in the world--so that you could
not merely search for, but also read or print, some large slice
of the Library's holdings. Imagine what that would be like.
Imagine the little underlined blue hyperlink from each title--to
my son it made perfect sense. The book's title was in the
catalogue. When you clicked the link, surely you would get to
read it. That is what happened in his experience when one
clicked a link. Why not here? It was an old book, after all, no
longer in print. Imagine being able to read the books, hear the
music, or watch the films--or at least the ones that the Library
of Congress thought it worthwhile to digitize. Of course, that
is ridiculous.
29
I tried to explain this to my son. I showed him that there were
some works that could be seen online. I took him to the online
photograph library, meaning to show him the wealth of amazing
historical photographs. Instead, I found myself brooding over
the lengthy listing of legal restrictions on the images and the
explanation that reproduction of protected items may require the
written permission of the copyright owners and that, in many
cases, only indistinct and tiny thumbnail images are displayed
to those searching from outside the Library of Congress "because
of potential rights considerations." The same was true of the
scratchy folk songs from the twenties or the early film
holdings. The material was in the Library, of course--remarkable
collections in some cases, carefully preserved, and sometimes
even digitized at public expense. Yet only a tiny fraction of it
is available online. (There is a fascinating set of Edison's
early films, for example.)
30
Most of the material available online comes from so long ago
that the copyright could not possibly still be in force. But
since copyright lasts for seventy years after the death of the
author (or ninety-five years if it was a corporate "work for
hire"), that could be a very, very long time indeed. Long
enough, in fact, to keep off limits almost the whole history of
moving pictures and the entire history of recorded music. Long
enough to lock up almost all of twentieth-century culture.
31
But is that not what copyright is supposed to do? To grant the
right to restrict access, so as to allow authors to charge for
the privilege of obtaining it? Yes, indeed. And this is a very
good idea. But as I argue in this book, the goal of the system
ought to be to give the monopoly only for as long as necessary
to provide an incentive. After that, we should let the work fall
into the public domain where all of us can use it, transform it,
adapt it, build on it, republish it as we wish. For most works,
the owners expect to make all the money they are going to recoup
from the work with five or ten years of exclusive rights. The
rest of the copyright term is of little use to them except as a
kind of lottery ticket in case the work proves to be a one-in-a-
million perennial favorite. The one-in-a-million lottery winner
will benefit, of course, if his ticket comes up. And if the
ticket is "free," who would not take it? But the ticket is not
free to the public. They pay higher prices for the works still
being commercially exploited and, frequently, the price of
complete unavailability for the works that are not.
32
Think of a one-in-a-million perennial favorite--Harry Potter,
say. Long after J. K. Rowling is dust, we will all be forbidden
from making derivative works, or publishing cheap editions or
large-type versions, or simply reproducing it for pleasure. I am
a great admirer of Ms. Rowling's work, but my guess is that
little extra incentive was provided by the thought that her
copyright will endure seventy rather than merely fifty years
after her death. Some large costs are being imposed here, for a
small benefit. And the costs fall even more heavily on all the
other works, which are available nowhere but in some moldering
library stacks. To put it another way, if copyright owners had
to purchase each additional five years of term separately, the
same way we buy warranties on our appliances, the economically
rational ones would mainly settle for a fairly short period.
33
Of course, there are some works that are still being exploited
commercially long after their publication date. Obviously the
owners of these works would not want them freely available
online. This seems reasonable enough, though even with those
works the copyright should expire eventually. But remember, in
the Library of Congress's vast, wonderful pudding of songs and
pictures and films and books and magazines and newspapers, there
is perhaps a handful of raisins' worth of works that anyone is
making any money from, and the vast majority of those come from
the last ten years. If one goes back twenty years, perhaps a
raisin. Fifty years? A slight raisiny aroma. We restrict access
to the whole pudding in order to give the owners of the raisin
slivers their due. But this pudding is almost all of twentieth-
century culture, and we are restricting access to it when almost
of all of it could be available.
34
If you do not know much about copyright, you might think that I
am exaggerating. After all, if no one has any financial interest
in the works or we do not even know who owns the copyright,
surely a library would be free to put those works online?
Doesn't "no harm, no foul" apply in the world of copyright? In a
word, no. Copyright is what lawyers call a "strict liability"
system. This means that it is generally not a legal excuse to
say that you did not believe you were violating copyright, or
that you did so by accident, or in the belief that no one would
care, and that your actions benefited the public. Innocence and
mistake do not absolve you, though they might reduce the
penalties imposed. Since it is so difficult to know exactly who
owns the copyright (or copyrights) on a work, many libraries
simply will not reproduce the material or make it available
online until they can be sure the copyright has expired--which
may mean waiting for over a century. They cannot afford to take
the risk.
35
What is wrong with this picture? Copyright has done its job and
encouraged the creation of the work. But now it acts as a fence,
keeping us out and restricting access to the work to those who
have the time and resources to trudge through the stacks of the
nation's archives. In some cases, as with film, it may simply
make the work completely unavailable.
36
So far I have been talking as though copyright were the only
reason the material is not freely available online. But of
course, this is not true. Digitizing costs money (though less
every year) and there is a lot of rubbish out there, stuff no
one would ever want to make available digitally (though it must
be noted that one man's rubbish is another man's delight). But
that still leaves vast amounts of material that we would want,
and be willing to pay, to have digitized. Remember also that if
the material were legally free, anyone could get in on the act
of digitizing it and putting it up. Google's much-heralded
effort to scan the books in major libraries is just the kind of
thing I mean. But Google is being sued for violating
copyright--even though it allows any author to "opt out" of its
system, and even though under the Google system you cannot click
to get the book if it is still under copyright, merely a snippet
a few sentences long from the book.
37
If you are shaking your head as you read this, saying that no
one would bother digitizing most of the material in the
archives, look at the Internet and ask yourself where the
information came from the last time you did a search. Was it an
official and prestigious institution? A university or a museum
or a government? Sometimes those are our sources of information,
of course. But do you not find the majority of the information
you need by wandering off into a strange click-trail of sites,
amateur and professional, commercial and not, hobbyist and
entrepreneur, all self-organized by internal referrals and
search engine algorithms? Even if Google did not undertake the
task of digitization, there would be hundreds, thousands, maybe
millions of others who would--not with Google's resources, to be
sure. In the process, they would create something quite
remarkable.
38
The most satisfying proofs are existence proofs. A platypus is
an existence proof that mammals can lay eggs. The Internet is an
existence proof of the remarkable information processing power
of a decentralized network of hobbyists, amateurs, universities,
businesses, volunteer groups, professionals, and retired experts
and who knows what else. It is a network that produces useful
information and services. Frequently, it does so at no cost to
the user and without anyone guiding it. Imagine that energy,
that decentralized and idiosyncratically dispersed pattern of
interests, turned loose on the cultural artifacts of the
twentieth century. Then imagine it coupled to the efforts of the
great state archives and private museums who themselves would be
free to do the same thing. Think of the people who would work on
Buster Keaton, or the literary classics of the 1930s, or the
films of the Second World War, or footage on the daily lives of
African-Americans during segregation, or the music of the Great
Depression, or theremin recordings, or the best of vaudeville.
Imagine your Google search in such a world. Imagine that Library
of Congress. One science fiction writer has taken a stab. His
character utters the immortal line, "Man, you'll get my Library
of Congress when you pry my cold dead fingers off it!" 9
39
Familiar with the effect of this kind of train of thought on his
father, my son had long since wandered off in search of a
basketball game to watch. But I have to admit his question was
something of an epiphany for me: Where do you click to get the
actual book?
40
The response I get from a lot of people is that this vision of
the Library of Congress is communism, pure and simple. Such
people view Google's attempt to digitize books as simple theft.
Surely it will destroy the incentives necessary to produce the
next beach novel, the next academic monograph, the next teen
band CD, the next hundred-million-dollar movie? But this
mistakes my suggestion. Imagine a very conservative system.
First, let us make people demonstrate that they want a
copyright, by the arduous step of actually writing the word
copyright or the little (C) on the work. (At the moment, everyone
gets a copyright as soon as the work is written down or
otherwise fixed, whether they want one or not.) But how long a
copyright? We know that the majority of works are only valuable
for five or ten years. Let us give copyright owners more than
double that, say twenty-eight years of exclusive rights. If
prior experience is any guide, 85 percent of works will be
allowed to enter the public domain after that period. If that
isn't generous enough, let us say that the small proportion of
owners who still find value in their copyright at the end of
twenty-eight years can extend their copyright for another
twenty-eight years. Works that are not renewed fall immediately
into the public domain. If you check the register after twenty-
eight years and the work has not been renewed, it is in the
public domain. Works that are renewed get the extra time.
41
Now this is a conservative suggestion, too conservative in my
view, though still better than what we have now. Is it feasible?
It would be hard to argue that it is not. This pretty much was
the law in the United States until 1978. (My system is a little
simpler, but the broad strokes are the same.) Since that point,
in two broad stages, we have moved away from this system at the
very moment in history when the Internet made it a particularly
stupid idea to do so.
42
How have we changed the system? We have given copyrights to the
creator of any original work as soon as it is fixed, so that
you, reader, are the author of thousands of copyrighted works.
Almost everything up on the Internet is copyrighted, even if its
creators do not know that and would prefer it to be in the
public domain. Imagine that you want to make a documentary and
use a film clip that a student filmmaker has put up on his home
page. Perhaps you want to adapt the nifty graphics that a high
school teacher in Hawaii created to teach her calculus class,
thinking that, with a few changes, you could use the material
for your state's K-12 physics program. Perhaps you are a collage
artist who wishes to incorporate images that amateur artists
have put online. None of the works are marked by a copyright
symbol. Certainly they are up on the Internet, but does that
mean that they are available for reprinting, adaptation, or
incorporation in a new work?
43
In each of these cases, you simply do not know whether what you
are doing is legal or not. Of course, you can take the risk,
though that becomes less advisable if you want to share your
work with others. Each broadening of the circle of sharing
increases the value to society but also the legal danger to you.
What if you want to put the course materials on the Net, or
publish the anthology, or display the movie? Perhaps you can try
to persuade your publisher or employer or distributor to take
the risk. Perhaps you can track down the authors of every piece
you wish to use and puzzle through the way to get a legal
release from them stating that they give you permission to use
the work they did not even know they had copyright over. Or you
can give up. Whatever happens, you waste time and effort in
trying to figure out a way of getting around a system that is
designed around neither your needs nor the needs of many of the
people whose work you want to use.
44
Apart from doing away with the need to indicate that you want
your works to be copyrighted, we have lengthened the copyright
term. We did this without any credible evidence that it was
necessary to encourage innovation. We have extended the terms of
living and even of dead authors over works that have already
been created. (It is hard to argue that this was a necessary
incentive, what with the works already existing and the authors
often being dead.) We have done away with the need to renew the
right. Everyone gets the term of life plus seventy years, or
ninety-five years for corporate "works for hire." All protected
by a "strict liability" system with scary penalties. And, as I
said before, we have made all those choices just when the
Internet makes their costs particularly tragic.
45
In sum, we have forgone the Library of Congress I described
without even apparently realizing we were doing so. We have
locked up most of twentieth-century culture and done it in a
particularly inefficient and senseless way, creating vast costs
in order to convey proportionally tiny benefits. (And all
without much complaint from those who normally object to
inefficient government subsidy programs.) Worst of all, we have
turned the system on its head. Copyright, intended to be the
servant of creativity, a means of promoting access to
information, is becoming an obstacle to both.
46
That, then, is one example of the stakes of the debate over
intellectual property policy. Unfortunately, the problem of
copyright terms is just one example, one instance of a larger
pattern. As I will try to show, this pattern is repeated again
and again in patents, in trademarks, and elsewhere in copyright
law. This is not an isolated "glitch." It is a complicated but
relentless tendency that has led to a hypertrophy of
intellectual property rights and an assault on the public
domain. In fact, in many cases, the reality is even worse: there
appears to be a complete ignorance about the value of the public
domain. Property's opposite, its outside, is getting short
shrift.
47
To paraphrase a song from my youth, "how did we get here?" Where
should we turn to understand the role of intellectual property
in the era of the Internet and the decoding of the human genome?
We could turn to the cutting edge of technology or to economics
or information theory. But none of those would be as useful a
starting place as a letter that was written about two hundred
years ago, using a high-tech quill pen, about a subject far from
the digital world.
Chapter 2: Thomas Jefferson Writes a Letter
1
On August 13, 1813, Thomas Jefferson took up his pen to write to
Isaac McPherson.1 It was a quiet week in Jefferson's
correspondence. He wrote a letter to Madison about the
appointment of a tax assessor, attempted to procure a government
position for an acquaintance, produced a fascinating and lengthy
series of comments on a new "Rudiments of English Grammar,"
discussed the orthography of nouns ending in "y," accepted the
necessary delay in the publication of a study on the anatomy of
mammoth bones, completed a brief biography of Governor Lewis,
and, in general, confined himself narrowly in subject matter.2
But on the 13th of August, Jefferson's mind was on intellectual
property, and most specifically, patents.
2
Jefferson's writing is, as usual, apparently effortless. Some
find his penmanship a little hard to decipher. To me, used to
plowing through the frenzied chicken tracks that law students
produce during exams, it seems perfectly clear. If handwriting
truly showed the architecture of the soul, then Jefferson's
would conjure up Monticello or the University of Virginia. There
are a few revisions and interlineations, a couple of words
squeezed in with a caret at the bottom of the line, but for the
most part the lines of handwriting simply roll on and on--"the
fugitive fermentation of an individual brain,"3 to quote a
phrase from the letter, caught in vellum and ink, though that
brain has been dust for more than a century and a half.
3
I love libraries. I love the mushroom smell of gently rotting
paper, the flaky crackle of manuscripts, and the surprise of
matching style of handwriting with style of thought. Today,
though, I am viewing his letter over the Internet on a computer
screen. (You can too. The details are at the back of the book.)
4
I think Jefferson would have been fascinated by the Internet.
After all, this was the man whose library became the Library of
Congress,4 who exemplifies the notion of the brilliant dabbler
in a hundred fields, whose own book collection was clearly a
vital and much consulted part of his daily existence, and whose
vision of politics celebrates the power of an informed
citizenry. Admittedly, the massive conflicts between Jefferson's
announced principles and his actions on the issue of slavery
have led some, though not me, to doubt that there is any
sincerity or moral instruction to be found in his words.5 But
even those who find him a sham can hardly fail to see the
continual and obvious joy he felt about knowledge and its
spread.
5
In the letter to Isaac McPherson, a letter that has become very
famous in the world of the digerati,6 this joy becomes manifest.
The initial subject of the correspondence seems far from the
online world. McPherson wrote to Jefferson about "elevators,
conveyers and Hopper-boys." Specifically, he wanted to know
Jefferson's opinion of a patent that had been issued to Mr.
Oliver Evans. Jefferson devotes a paragraph to a recent
retrospective extension of patent rights (he disapproves) and
then turns to Evans's elevators.
6
Patents then, as now, were only supposed to be given for
inventions that were novel, nonobvious, and useful. Jefferson
had considerable doubt whether Evans's device, essentially a
revolving string of buckets used to move grain, actually counted
as "an invention." "The question then whether such a string of
buckets was invented first by Oliver Evans, is a mere question
of fact in mathematical history. Now, turning to such books only
as I happen to possess, I find abundant proof that this simple
machinery has been in use from time immemorial." Jefferson cites
from his library example after example of references to the
"Persian wheel"--a string of buckets to move water. The display
of scholarship is effortless and without artifice. If the device
existed to move water, he declares, Mr. Evans can hardly patent
it to move grain. "If one person invents a knife convenient for
pointing our pens, another cannot have a patent right for the
same knife to point our pencils. A compass was invented for
navigating the sea; another could not have a patent right for
using it to survey land."7
7
So far as we can tell, this was the only part of the letter that
interested McPherson. Later correspondence indicates that he had
a pamphlet printed questioning the patent.8 But while it is
impressive to see Jefferson's easy command of historical
evidence or his grasp of the importance of limiting the subject
matter, scope, and duration of patents, these qualities alone
would not have given the letter the fame it now has. It is when
Jefferson turns to the idea of intellectual property itself that
the letter becomes more than a historical curiosity. In a couple
of pages, quickly jotted down on a humid August day in 1813, he
frames the issue as well as anyone has since.
8
He starts by dismissing the idea "that inventors have a natural
and exclusive right to their inventions, and not merely for
their own lives, but inheritable to their heirs." In lines that
will sound strange to those who assume that the framers of the
Constitution were property absolutists, Jefferson argues that
"stable ownership" of even tangible property is "a gift of
social law." Intellectual property, then, has still less of a
claim to some permanent, absolute, and natural status.
9
[W]hile it is a moot question whether the origin of any kind
of property is derived from nature at all, it would be singular
to admit a natural and even an hereditary right to inventors. It
is agreed by those who have seriously considered the subject,
that no individual has, of natural right, a separate property in
an acre of land, for instance. By an universal law, indeed,
whatever, whether fixed or movable, belongs to all men equally
and in common, is the property for the moment of him who
occupies it, but when he relinquishes the occupation, the
property goes with it. Stable ownership is the gift of social
law, and is given late in the progress of society. It would be
curious then, if an idea, the fugitive fermentation of an
individual brain, could, of natural right, be claimed in
exclusive and stable property.9
10
Jefferson's point here may seem obscure to us. We are not used
to starting every argument from first principles. But it is in
fact quite simple. It is society that creates property rights
that go beyond mere occupancy. It does so for several
reasons--reasons of both practicality and natural justice.
(Elsewhere in his writings, Jefferson expands on this point at
greater length.) One of those reasons has to do with the
difficulty, perhaps even the impossibility, of two different
people having full and unfettered ownership of the same piece of
property simultaneously. Another linked reason comes from the
practicality of excluding others from our property, so that we
can exploit it secure from the plunder or sloth of others. The
economists you encountered in Chapter 1 have, with their usual
linguistic felicity, coined the terms "rivalrous" and
"excludable" to describe these characteristics.
11
With rivalrous property, one person's use precludes another's.
If I drink the milk, you cannot. Excludable property is,
logically enough, property from which others can easily be
excluded or kept out. But ideas seem to have neither of these
characteristics.
12
If nature has made any one thing less susceptible than all
others of exclusive property, it is the action of the thinking
power called an idea, which an individual may exclusively
possess as he keeps it to himself; but the moment it is
divulged, it forces itself into the possession of every one, and
the receiver cannot dispossess himself of it. Its peculiar
character, too, is that no one possess the less, because every
other possess the whole of it. He who receives an idea from me,
receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening me.
That ideas should freely spread from one to another over the
globe, for the moral and mutual instruction of man, and
improvement of his condition, seems to have been peculiarly and
benevolently designed by nature, when she made them, like fire,
expansible over all space, without lessening their density in
any point, and like the air in which we breathe, move, and have
our physical being, incapable of confinement or exclusive
appropriation. Inventions then cannot, in nature, be a subject
of property.10
13
Those who quote the passage sometimes stop here, which is a
shame, because it leaves the impression that Jefferson was
unequivocally against intellectual property rights. But that
would be a considerable overstatement. When he says that
inventions can never be the subject of property, he means a
permanent and exclusive property right which, as a matter of
natural right, no just government could abridge. However,
inventions could be covered by temporary state-created
monopolies instituted for the common good. In the lines
immediately following the popularly quoted excerpt, Jefferson
goes on:
14
Society may give an exclusive right to the profits arising
from [inventions], as an encouragement to men to pursue ideas
which may produce utility, but this may or may not be done,
according to the will and convenience of the society, without
claim or complaint from any body. Accordingly, it is a fact, as
far as I am informed, that England was, until we copied her, the
only country on earth which ever, by a general law, gave a legal
right to the exclusive use of an idea. In some other countries
it is sometimes done, in a great case, and by a special and
personal act, but, generally speaking, other nations have
thought that these monopolies produce more embarrassment than
advantage to society; and it may be observed that the nations
which refuse monopolies of invention, are as fruitful as England
in new and useful devices.11
15
Jefferson's message was a skeptical recognition that
intellectual property rights might be necessary, a careful
explanation that they should not be treated as natural rights,
and a warning of the monopolistic dangers that they pose. He
immediately goes on to say something else, something that is, if
anything, more true in the world of patents on Internet business
methods and gene sequences than it was in the world of
"conveyers and Hopper-boys."
16
Considering the exclusive right to invention as given not of
natural right, but for the benefit of society, I know well the
difficulty of drawing a line between the things which are worth
to the public the embarrassment of an exclusive patent, and
those which are not.12
17
So Jefferson gives us a classic set of cautions, cautions that
we should be required to repeat, as police officers repeat the
Miranda Warning to a suspect. In this case, they should be
repeated before we rush off into the world of intellectual
property policy rather than before we talk to the police without
our lawyers present.
18
THE JEFFERSON WARNING
19
Like the Miranda Warning, the Jefferson Warning has a number of
important parts.
20
* First, the stuff we cover with intellectual property rights
has certain vital differences from the stuff we cover with
tangible property rights. Partly because of those differences,
Jefferson, like most of his successors in the United States,
does not see intellectual property as a claim of natural right
based on expended labor. Instead it is a temporary state-created
monopoly given to encourage further innovation.
* Second, there is no "entitlement" to have an intellectual
property right. Such rights may or may not be given as a matter
of social "will and convenience" without "claim or complaint
from any body."
* Third, intellectual property rights are not and should not be
permanent; in fact they should be tightly limited in time and
should not last a day longer than necessary to encourage the
innovation in the first place.
* Fourth, a linked point, they have considerable monopolistic
dangers--they may well produce more "embarrassment than
advantage." In fact, since intellectual property rights
potentially restrain the benevolent tendency of "ideas . . .
[to] freely spread from one to another over the globe, for the
moral and mutual instruction of man," they may in some cases
actually hinder rather than encourage innovation.
* Fifth, deciding whether to have an intellectual property
system is only the first choice in a long series.13 Even if one
believes that intellectual property is a good idea, which I
firmly do, one will still have the hard job of saying which
types of innovation or information are "worth to the public the
embarrassment" of an exclusive right, and of drawing the limits
of that right. This line-drawing task turns out to be very
difficult. Without the cautions that Jefferson gave us it is
impossible to do it well.
21
Jefferson's message was famously echoed and amplified thirty
years later in Britain by Thomas Babington Macaulay.14
Macaulay's speeches to the House of Commons in 1841 on the
subject of copyright term extension still express better than
anything else the position that intellectual property rights are
necessary evils which must be carefully circumscribed by law. In
order for the supply of valuable books to be maintained, authors
"must be remunerated for their literary labour. And there are
only two ways in which they can be remunerated. One of those
ways is patronage; the other is copyright." Patronage is
rejected out of hand. "I can conceive no system more fatal to
the integrity and independence of literary men than one under
which they should be taught to look for their daily bread to the
favour of ministers and nobles."15
22
We have, then, only one resource left. We must betake
ourselves to copyright, be the inconveniences of copyright what
they may. Those inconveniences, in truth, are neither few nor
small. Copyright is monopoly, and produces all the effects which
the general voice of mankind attributes to monopoly. . . . I
believe, Sir, that I may safely take it for granted that the
effect of monopoly generally is to make articles scarce, to make
them dear, and to make them bad. And I may with equal safety
challenge my honorable friend to find out any distinction
between copyright and other privileges of the same kind; any
reason why a monopoly of books should produce an effect directly
the reverse of that which was produced by the East India
Company's monopoly of tea, or by Lord Essex's monopoly of sweet
wines. Thus, then, stands the case. It is good that authors
should be remunerated; and the least exceptionable way of
remunerating them is by a monopoly. Yet monopoly is an evil. For
the sake of the good we must submit to the evil; but the evil
ought not to last a day longer than is necessary for the purpose
of securing the good.16
23
Notice that it is the monopolistic quality of intellectual
property that really disturbs Macaulay. His was a generation of
thinkers for whom the negative effect of monopolies of any kind
(and state-granted monopolies in particular) was axiomatic. He
becomes almost contemptuous when one of the supporters of
copyright extension declared that it was merely "a theory" that
monopoly makes things expensive. Macaulay agrees, tongue in
cheek. "It is a theory in the same sense in which it is a
theory, that day and night follow each other, that lead is
heavier than water, that bread nourishes, that arsenic poisons,
that alcohol intoxicates."17
24
These words from Jefferson and Macaulay encapsulate an
eighteenth- and nineteenth-century free-trade skepticism about
intellectual property, a skepticism that is widely, but not
universally, believed to have played an important role in
shaping the history of intellectual property in both the United
States and the United Kingdom. Certainly the U.S. Supreme Court
has offered support for that position,18 and, with one
significant recent exception,19 historians of intellectual
property have agreed.20 Jefferson himself had believed that the
Constitution should have definite limits on both the term and
the scope of intellectual property rights.21 James Madison
stressed the costs of any intellectual property right and the
need to limit its term and to allow the government to end the
monopoly by compulsory purchase if necessary.22 Adam Smith
expressed similar views. Monopolies that carry on long after
they were needed to encourage some socially beneficial activity,
he said, tax every other citizen "very absurdly in two different
ways: first, by the high price of goods, which, in the case of a
free trade, they could buy much cheaper; and, secondly, by their
total exclusion from a branch of business which it might be both
convenient and profitable for many of them to carry on."23
25
It is important to note, though, that the eighteenth- and
nineteenth-century writers I have quoted were not against
intellectual property. All of them--Jefferson, Madison, Smith,
and Macaulay--could see good reason why intellectual property
rights should be granted. They simply insisted on weighing the
costs and benefits of a new right, each expansion of scope, each
lengthening of the copyright term. Here is Macaulay again,
waxing eloquently sarcastic about the costs and benefits of
extending the copyright term so that it would last many years
after the author's death:
26
I will take an example. Dr. Johnson died fifty-six years
ago. If the law were what my honourable and learned friend
wishes to make it, somebody would now have the monopoly of Dr.
Johnson's works. Who that somebody would be it is impossible to
say; but we may venture to guess. I guess, then, that it would
have been some bookseller, who was the assign of another
bookseller, who was the grandson of a third bookseller, who had
bought the copyright from Black Frank, the Doctor's servant and
residuary legatee, in 1785 or 1786. Now, would the knowledge
that this copyright would exist in 1841 have been a source of
gratification to Johnson? Would it have stimulated his
exertions? Would it have once drawn him out of his bed before
noon? Would it have once cheered him under a fit of the spleen?
Would it have induced him to give us one more allegory, one more
life of a poet, one more imitation of Juvenal? I firmly believe
not. I firmly believe that a hundred years ago, when he was
writing our debates for the Gentleman's Magazine, he would very
much rather have had twopence to buy a plate of shin of beef at
a cook's shop underground.24
27
Again, I am struck by how seamlessly Macaulay coupled beautiful,
evocative writing and careful, analytic argument. Admittedly, he
was remarkable even in his own time, but it is hard to imagine a
contemporary speechwriter, let alone a politician, coming up
with Dr. Johnson "cheered . . . under a fit of the spleen" or
buying a "plate of shin of beef at a cook's shop underground."
Almost as hard as it is to imagine any of them engaging in
Jefferson's correspondence about mammoth bones, orthography, and
the practicalities of the nautical torpedo. But I digress.
28
Macaulay is not against using a lengthened copyright term to
give an extra reward to writers, even if this would dramatically
raise the price of books. What he objects to is dramatically
raising the price of books written by long-dead authors in a way
that benefits the authors hardly at all.
29
Considered as a reward to him, the difference between a
twenty years' and a sixty years' term of posthumous copyright
would have been nothing or next to nothing. But is the
difference nothing to us? I can buy Rasselas for sixpence; I
might have had to give five shillings for it. I can buy the
Dictionary, the entire genuine Dictionary, for two guineas,
perhaps for less; I might have had to give five or six guineas
for it. Do I grudge this to a man like Dr. Johnson? Not at all.
Show me that the prospect of this boon roused him to any
vigorous effort, or sustained his spirits under depressing
circumstances, and I am quite willing to pay the price of such
an object, heavy as that price is. But what I do complain of is
that my circumstances are to be worse, and Johnson's none the
better; that I am to give five pounds for what to him was not
worth a farthing.25
30
Though Macaulay won the debate over copyright term extension, it
is worth noting here that his opponents triumphed in the end. As
I pointed out in the last chapter, the copyright term in most of
Europe and in the United States now lasts for the life of the
author and an additional seventy years afterward, ten years more
than the proposal which made Macaulay so indignant. In the
United States, corporate owners of "works-for-hire" get ninety-
five years.26 The Supreme Court recently heard a constitutional
challenge to the law which expanded the term of copyrights by
twenty years to reach this remarkable length.27 (Full
disclosure: I helped prepare an amicus brief in that case.)28
This law, the Sonny Bono Copyright Term Extension Act, also
extended existing copyrights over works which had already been
created.29 As I observed earlier, this is particularly
remarkable if the idea is to give an incentive to create.
Obviously the authors of existing works were given sufficient
incentive to create; we know that because they did. Why do we
need to give the people who now hold their copyrights another
twenty years of monopoly? This is all cost and no benefit.
Macaulay would have been furious.
31
When the Supreme Court heard the case, it was presented with a
remarkable friend-of-the-court brief from seventeen economists,
several of them Nobel laureates.30 The economists made exactly
Macaulay's argument, though in less graceful language. They
pointed out that copyright extension imposed enormous costs on
the public and yet conveyed tiny advantages, if any, to the
creator. Such an extension, particularly over works that had
already been written, hardly fit the limits of Congress's power
under the Constitution "to promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries."31 Macaulay doubted that these enormously long
terms would encourage the living. Surely they would do little to
encourage the dead, while imposing considerable costs of access
on the living? Thus they could hardly be said to "promote the
progress" of knowledge as the Constitution requires. The Court
was unmoved by this and other arguments. It upheld the law. I
will return to its decision at the end of the book.
32
The intellectual property skeptics had other concerns. Macaulay
was particularly worried about the power that went with a
transferable and inheritable monopoly. It is not only that the
effect of monopoly is "to make articles scarce, to make them
dear, and to make them bad." Macaulay also pointed out that
those who controlled the monopoly, particularly after the death
of the original author, might be given too great a control over
our collective culture. Censorious heirs or purchasers of the
copyright might prevent the reprinting of a great work because
they disagreed with its morals.32 We might lose the works of
Fielding or Gibbon, because a legatee found them distasteful and
used the power of the copyright to suppress them. This is no
mere fantasy, Macaulay tells us. After praising the novels of
Samuel Richardson in terms that, to modern eyes, seem a little
fervid ("No writings, those of Shakespeare excepted, show more
profound knowledge of the human heart"), Macaulay recounts the
story of Richardson's grandson, "a clergyman in the city of
London." Though a "most upright and excellent man," the grandson
"had conceived a strong prejudice against works of fiction,"
"thought all novel-reading not only frivolous but sinful," and
"had never thought it right to read one of his grandfather's
books."33 Extended copyright terms might hand over the copyright
to such a man. The public would lose, not because they had to
pay exorbitant prices that denied some access to the work, but
because the work would be altogether suppressed. Richardson's
novels--Pamela, Clarissa Harlowe, and so on--are now the preserve
of the classroom rather than the drawing room, so this might not
seem like much of a loss. But Macaulay's next example is not so
easy to dismiss.
33
One of the most instructive, interesting, and delightful
books in our language is Boswell's Life of Johnson. Now it is
well known that Boswell's eldest son considered this book,
considered the whole relation of Boswell to Johnson, as a blot
in the escutcheon of the family. He thought, not perhaps
altogether without reason, that his father had exhibited himself
in a ludicrous and degrading light. And thus he became so sore
and irritable that at last he could not bear to hear the Life of
Johnson mentioned. Suppose that the law had been what my
honourable and learned friend wishes to make it. Suppose that
the copyright of Boswell's Life of Johnson had belonged, as it
well might, during sixty years, to Boswell's eldest son. What
would have been the consequence? An unadulterated copy of the
finest biographical work in the world would have been as scarce
as the first edition of Camden's Britannia.34
34
From more recent examples we can see that outright suppression
is not the only thing to fear. The authors' heirs, or the
corporations which have purchased their rights, may keep
policing the boundaries of the work long after the original
author is dead. In 2001, Alice Randall published The Wind Done
Gone. As its title might indicate, The Wind Done Gone was a 220-
page "critique of and reaction to" the world of Gone With the
Wind by Margaret Mitchell.35 Most crucially, perhaps, it was a
version of Gone With the Wind told from the slaves' point of
view. Suddenly the actions of Rhett ("R"), Scarlett ("Other"),
and an obviously gay Ashley ("Dreamy Gentleman") come into new
perspective through the eyes of Scarlett's "mulatto" half-
sister. Mitchell's estate wanted to prevent publication of the
book. At first they were successful.36 As Yochai Benkler puts
it,
35
Alice Randall, an African American woman, was ordered by a
government official not to publish her criticism of the
romanticization of the Old South, at least not in the words she wanted
to use. The official was not one of the many in Congress and the
Administration who share the romantic view of the Confederacy. It was
a federal judge in Atlanta who told Randall that she could not write
her critique in the words she wanted to use--a judge enforcing
copyright law.37
36
"They killed Miss Scarlett!" the astonished trial judge said
after reading Randall's book. My colleague Jennifer Jenkins, one
of the lawyers in the case, recounts that the judge saw the case
in relentlessly physical terms, seeing the parody as a
"bulldozer" and Gone With the Wind as a walled country estate
into which the bulldozer had violently trespassed. He was
consequently unimpressed with the claim that this "bulldozer"
was protected by the First Amendment. Eventually, the court of
appeals overturned the district court's judgment.38 Fifty-two
years after Margaret Mitchell's death, it was a hotly debated
point how much leeway copyright gave to others to comment upon,
critique, embellish upon, and parody the cultural icon she had
conjured up.
37
A NATURAL RIGHT?
38
To some people, my argument so far--and Jefferson's and
Macaulay's--will seem to miss the point. They see intellectual
property rights not as an incentive, a method of encouraging the
production and distribution of innovation, but as a natural or
moral right. My book is mine because I wrote it, not because
society or the law gives me some period of exclusivity over
allowing the copying of its contents. My invention is mine
because it came from my brain, not because the law declares a
twenty-year monopoly over its production or distribution. My
logo is mine because I worked hard on it, not because the state
grants me a trademark in order to lower search costs and prevent
consumer confusion. One answer is simply to say "In the United
States, the framers of the Constitution, the legislature, and
the courts have chosen to arrange things otherwise. In
copyright, patent, and trademark law--despite occasional
deviations--they have embraced the utilitarian view instead."
39
Broadly speaking, that answer is correct.39 It also holds, to a
lesser extent, in Britain. Even in the droits d'auteur
countries, which have a markedly different copyright law regime,
it largely holds for their patent and trademark law systems, and
utilitarian strands suffuse even "the sacred rights of authors."
So, on a national level, we have rejected or dramatically
limited the natural rights view, and on an international level,
we have rejected it in "industrial property"--patent and
trademark--and modified it in copyright.
40
I think this answer is correct and important, but we have an
obligation to go further. Partly that is because intuitions
about ownership coming naturally with labor or discovery
continue to influence the law. Partly it is because those moral
intuitions are important and appealing. Partly it is because we
might wish to modify or criticize our current system. Using the
views of the framers, or current law, to preempt discussion is
unsatisfactory--even though those views are of particular
importance for the legal policy decisions we face in the short
run, the issues on which much of my argument is concentrated.
41
There are varying stated grounds for natural or moral rights in
intellectual creations. Some people may think the book is mine
because I worked on it--a Lockean conception where I mix my sweat
with these words and receive a property right in the process.
42
For all its attractions, there are considerable difficulties
with such a view. Even within the world of tangible property,
Locke's theory is more complicated than a simple equation of
labor with property right. Jefferson's account of property is
actually closer to Locke's than many would realize. When
Jefferson points out the difficulty in justifying a natural
right even in an acre of land, let alone a book, his premises
are not radically different from Locke's. The same is true when
Jefferson says that "[s]table ownership is the gift of social
law, and is given late in the progress of society." Even if
natural right does create the ground for the property claim, it
is "social law" that shapes its contours and guarantees its
stability. Jefferson, of course, thought that was particularly
true for intellectual property rights. In that context, he felt
the natural rights argument was much weaker and the need for
socially defined purposive contours and limitations stronger.
43
Locke's own views on what we would think of as copyright are
hard to determine. We do know that he had a strong antipathy to
monopolies--particularly those affecting expression. He believed,
for example, that giving publishers monopolies over great public
domain books caused a disastrous fall in quality. Instead, he
argued, such books should be open for all to compete to produce
the best edition. Of course, he was writing in the context of
monopolistic printing privileges--to which he was strongly
opposed--rather than of individual authorial rights. Yet he went
further and suggested that even for contemporary works, after a
particular time in print--say fifty years--books could be printed
by anyone.
44
I demand whether, if another act for printing should be
made, it be not reasonable that nobody should have any peculiar
right in any book which has been in print fifty years, but any
one as well as another might have liberty to print it: for by
such titles as these, which lie dormant, and hinder others, many
good books come quite to be lost.40
45
This sounds like a strongly utilitarian argument, rather than
one based on labor and natural right. Of course, we are not
bound by what Locke or Jefferson thought. Still it is striking
to see the turn to a utilitarian conception from both of them.
46
The Lockean tradition is not the only one, of course. Others
believe that the property right stems from the unique
personality of each individual--the configurations of your
individual genius made manifest in the lines of your sonnet.
(Some limit the natural right to literary and expressive work;
can a mousetrap or a drug molecule express the riddle and wonder
of the human spirit?) Whatever their moral basis or their ambit,
the common ground between these positions is the belief in a
rationale for intellectual property rights beyond the
utilitarian concerns of Jefferson or Macaulay.
47
The norms embodied in the moral rights or natural rights
tradition are deeply attractive--at least to me. Many of us feel
a special connection to our expressive creations--even the humble
ones such as a term paper or a birthday poem. It is one of the
reasons that the central moral rights in the French droits
d'auteur, or author's rights, tradition resonate so strongly
with us. The entitlement of an author to be correctly
attributed, to have some control over the integrity of his work,
seems important regardless of its utilitarian functions.1
48
Yet even as we find this claim attractive, we become aware of
the need to find limiting principles to it. It gives us pause to
think that Margaret Mitchell or her heirs could forbid someone
parodying her work. Are there no free-speech limitations? When
other forms of authorship, such as computer programs, are
brought into copyright's domain, does the power of the moral
right decrease, while the need to limit its scope intensifies?
49
Then there is the question of length. How long is a natural
right in expression or invention supposed to last? It seems
absurd to imagine that Shakespeare's or Mozart's heirs, or those
who had bought their copyrights, would still be controlling the
performance, reproduction, and interpretation of their works
hundreds of years after their death. If the rights are truly
formed for a nonutilitarian purpose, after all, why should they
expire? The person who first acquires property rights in land by
work or conquest passes those rights down to heirs and buyers
with the chain of transmission reaching to the present day.
Should copyright follow suit? Even in France, the home of the
strongest form of the droits d'auteur and of the "moral rights"
tradition, the answer to this question was in the negative.
50
We owe a large part of the literary moral rights tradition to
the immediate aftermath of the French Revolution. In France
before the Revolution, as in England before the Statute of Anne,
the first true copyright legislation, the regulation of
publishing was through a set of "privileges" given to printers,
not rights given to authors. Publishers would have a guild-
enforced monopoly over certain titles. Their right was against
competing publishers printing the list of titles over which they
had the privilege. The Revolution abolished these privileges
and, at first, put nothing in their place. On the other hand, as
Carla Hesse's fascinating work reveals, there was intermittent
interference by the Prefecture of Police with those who copied
most flagrantly. One such publisher was sternly instructed by
the police in these terms:
51
[A]ccording to the Declaration of the Rights of Man, liberty
means only the freedom to do what does not harm others; and that
it harms others to appropriate the work of an author, because it
is an infringement of the sacred right of property; and that
such an enterprise, if it were to remain unpunished, would
deprive citizens of the instruction they await from celebrated
authors like M. Bernardin de St. Pierre, because no author would
want to consecrate his labors to the instruction of his age if
piracy were ever authorized.41
52
Note the interesting mixture of the language of the "sacred
rights of property" and the strong utilitarian justification
which cites effects on future literary production and the
"instruction" of citizens.
53
More expansive conceptions of the rights of authors and,
particularly, of publishers were also offered. Even before the
Revolution, publishers had been making the arguments that their
privileges were a form of property rights and had the very good
sense to hire the young Diderot to make those arguments. Hesse
quotes his words:
54
What form of wealth could belong to a man, if not a work of
the mind, . . . if not his own thoughts, . . . the most precious
part of himself, that will never perish, that will immortalize
him? What comparison could there be between a man, the very
substance of man, his soul, and a field, a tree, a vine, that
nature has offered in the beginning equally to all, and that an
individual has only appropriated through cultivating it?42
55
Diderot's theme is that authors' rights should actually be
stronger than other property rights for two reasons. First, they
relate to the very essence of the person, the most "precious
part of himself." Second, they are the only property rights over
something that has been added to the existing store of wealth
rather than taken from it. Authorial property, unlike property
in land, adds to the common store rather than detracting from
it. Locke believed that a just assertion of property rights must
leave "enough and as good" for others in the society. What could
better satisfy this condition than a property right over a novel
that did not exist before I wrote it? One hundred years later
Victor Hugo echoed the same thoughts in a speech to the Conseil
d'Etat and pointed out at the same time that literary property
rights could potentially "reconcile" troublesome authors to
society and state.
56
You feel the importance and necessity of defending property
today. Well, begin by recognising the first and most sacred of
all properties, the one which is neither a transmission nor an
acquisition but a creation, namely literary property . . .
reconcile the artists with society by means of property.43
57
Diderot wanted perpetual copyrights for authors and, agreeably
to his employers, a correspondingly perpetual printing
privilege. If the author's heirs could not be traced, the
copyright would devolve to the current publisher.
58
But as Hesse points out, there was another view of literary
property--a much more skeptical one put forward best by
Condorcet. This view is also an influential part of the heritage
of the droits d'auteur, even if it is downplayed in its
contemporary rhetoric. Condorcet began by framing the question
of literary property as one of political liberty. "Does a man
have the right to forbid another man to write the same words
that he himself wrote first? That is the question to resolve."44
Like Jefferson, Condorcet is utterly unconvinced that property
rights in a book can be compared to those in a field or a piece
of furniture which can be occupied or used by only one man. The
type of property is "based on the nature of the thing." He
concluded, again in language strikingly similar to Jefferson's
and Macaulay's, that literary property was not a real property
right but a privilege, and one which must be assessed on a
utilitarian basis in terms of its contribution to
enlightenment.45
59
Any privilege therefore imposes a hindrance on freedom,
placing a restriction on the rights of other citizens; As such
it is not only harmful to the rights of others who want to copy,
but the rights of all those who want copies, and that which
increases the price is an injustice. Does the public interest
require that men make this sacrifice? That is the question that
must be considered; In other words, are [literary] privileges
needed and useful or harmful to the progress of enlightenment?46
60
Condorcet's conclusion was that they were not necessary and that
they could be harmful. "The books that most furthered the
progress of enlightenment, the Encyclopédie, the works of
Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits
of a privilege." Instead he seemed to favor a combination of
"subscriptions" to authors with a trademark-like protection
which allowed an author to identify a particular edition of his
work as the genuine one, but which also allowed competing
editions to circulate freely. In such a market, he believed that
the price of the competing editions would fall to "natural"
levels--today we would call it marginal cost--but the original
author would still be able to charge a modest premium for the
edition he authorized or certified because readers would prefer
it as both more accurate and more authentic. One possible
analogy is to the history of the fashion industry in the United
States. It operates largely without design protection but relies
heavily on the trademarks accorded to favored designers and
brands. There are "knockoffs" of Armani or Balenciaga, but the
wealthy still pay an enormous premium for the real thing.
61
Condorcet also insisted that whatever protection was accorded to
literary works must not extend to the ideas within them. It is
the truths within books that make them "useful"--a word that does
not have the same luminance and importance for us today as it
did for the philosophers of the Enlightenment or the French
Revolution. He argued that any privilege given the author could
not extend to "preventing another man from exhibiting the same
truths, in perfectly the same order, from the same evidence" or
from extending those arguments and developing their
consequences. In a line that Hesse rightly highlights, he
declares that any privileges do not extend over facts or ideas.
"Ce n'est pas pour les choses, les idées; c'est pour les mots,
pour le nom de l'auteur."
62
In sum, Condorcet favors a limited privilege, circumscribed by
an inquiry into its effects in promoting progress and
enlightenment. The privilege only applies to expression and to
"the author's name," rather than to facts and ideas. This is
very much within the tradition of Jefferson and Macaulay.
63
Hesse argues, correctly I think, that two warring ideas
shaped--or are at least useful ways of understanding--the
development of the droits d'auteur tradition. On one side were
Diderot and the publishers promoting an expansive and perpetual
natural authorial right, which nevertheless was supposed to vest
suspiciously easily in publishers. On the other was Condorcet,
looking skeptically at authorial privileges as merely one type
of state interference with free markets and the free circulation
of books and ideas. In place of Diderot's perpetual natural
right, Condorcet sketched out a regime that encourages
production and distribution by granting the minimum rights
necessary for progress.
64
Different as they are, these two sides share a common ground.
They both focus, though for different reasons, on
"expression"--the imprimatur of the author's unique human spirit
on the ideas and facts that he or she transmits. It is this
"original expression" that modern copyright and the modern
droits d'auteur actually cover. In today's copyright law, the
facts and ideas in an author's work proceed immediately into the
public domain. In other work, I have argued that by confining
the property right tightly to the "original expression" stemming
from the unique personality of an individual author the law
seems to accomplish a number of things simultaneously. It
provides
65
a conceptual basis for partial, limited property rights,
without completely collapsing the notion of property into the
idea of a temporary, limited, utilitarian state grant, revocable
at will. [At the same time it offers] a moral and philosophical
justification for fencing in the commons, giving the author
property in something built from the resources of the public
domain--language, culture, genre, scientific community, or what
have you. If one makes originality of spirit the assumed feature
of authorship and the touchstone for property rights, one can
see the author as creating something entirely new--not
recombining the resources of the commons.47
66
That is an account of the romantic theory of authorship in the
context of contemporary Anglo-American copyright law. But when
one looks at the history of the French droits d'auteur
tradition, it is striking how well those words describe that
system as well. When the French legislature finally produced a
law of authors' rights it turned out, in Hesse's words, to
reflect "an epistemologically impure and unstable legal
synthesis that combined an instrumentalist notion of the public
good with a theory of authorship based on natural rights."
67
Although it drew on a Diderotist rhetoric of the sanctity of
individual creativity as an inviolable right, it did not
rigorously respect the conclusions Diderot drew from this
position. In contrast to the privilège d'auteur of 1777, the law
did not recognize the author's claim beyond his lifetime but
consecrated the notion, advanced first by Pierre Manuel to
defend his edition of Mirabeau, that the only true heir to an
author's work was the nation as a whole. This notion of a public
domain, of democratic access to a common cultural inheritance on
which no particular claim could be made, bore the traces not of
Diderot, but of Condorcet's faith that truths were given in
nature and, although mediated through individual minds, belonged
ultimately to all. Progress in human understanding depended not
on private knowledge claims, but on free and equal access to
enlightenment. An author's property rights were conceived as
recompense for his service as an agent of enlightenment through
publication of his ideas. The law of 1793 accomplished this task
of synthesis through political negotiation rather than
philosophical reasoning--that is, by refashioning the political
identity of the author in the first few years of the Revolution
from a privileged creature of the absolutist police state into a
servant of public enlightenment.48
68
Hesse argues that this instability would continue through the
revolutionary period. I agree; indeed I would argue that it does
so to the present day. Why? The answer is simple. The moral
rights view simply proved too much. Without a limiting
principle--of time, or scope, or effect--it seemed to presage a
perpetual and expansive control of expressive creations, and
perhaps of inventions. Our intuition that this is a bad idea
comes from our intuitive understanding that "Poetry can only be
made out of other poems; novels out of other novels. All of this
was much clearer before the assimilation of literature to
private enterprise."49
69
This is the flip side of the arguments that Diderot and later
Hugo put forward. Perhaps the romantic author does not create
out of thin air. Perhaps he or she is deeply embedded in a
literary, musical, cultural, or scientific tradition that would
not flourish if treated as a set of permanently walled private
plots. Even within the tradition, we see a recognition that the
continuing progress of enlightenment and the ssacred genius of
authors might both require a certain level of freedom in
knowledge inputs and a certain level of control over knowledge
outputs. We see also the recognition that these two requirements
are in fundamental tension. When it comes to reconciling that
tension we must turn in part to utilitarian effects. In short,
we should pay attention to Jefferson and Macaulay and Condorcet,
not just because their thoughts shaped the legal and
philosophical traditions in which we now work--though that is
particularly true in the case of the United States--but because
they were right, or at least more right than the alternative.
70
Of course, we could build a culture around a notion of natural,
absolute, and permanent rights to invention and expression. It
is not a world many of us would want to live in. There are
exceptions of course. In a recent New York Times op-ed, Mark
Helprin--author of Winter's Tale--argued that intellectual
property should become perpetual.50 After all, rights in real
estate or personal property do not expire--though their owners
might. Why is it that copyrights should "only" last for a
lifetime plus seventy additional years, or patents for a mere
twenty? Mr. Helprin expresses respect for the genius of the
framers, but is unmoved by their firm command that rights be
granted only for "limited times." He concludes that it was a
misunderstanding. Jefferson did not realize that while ideas
cannot be owned, their expression can. What's more, the framers
were misled by their rustic times. "No one except perhaps
Hamilton or Franklin might have imagined that services and
intellectual property would become primary fields of endeavor
and the chief engines of the economy. Now they are, and it is no
more rational to deny them equal status than it would have been
to confiscate farms, ropewalks and other forms of property in
the 18th century." Poor Jefferson. How lucky we are to have Mr.
Helprin to remedy the consequences of his lack of vision.
71
Or perhaps not. Think of the way that Jefferson traced the
origins of the mechanical arts used in the elevators and hopper-
boys all the way back to ancient Persia. (In Mr. Helprin's
utopia, presumably, a royalty stream would run to Cyrus the
Great's engineers.) Jefferson's point was that for the process
of invention to work, we need to confine narrowly the time and
scope of the state-provided monopoly, otherwise further
inventions would become impossible. Each process or part of a
new invention would risk infringing a myriad of prior patents on
its subcomponents. Innovation would strangle in a thicket of
conflicting monopolies with their roots vanishing back in time.
Presumably the title of Mr. Helprin's excellent novel would
require clearance from Shakespeare's heirs.
72
Of course, one could construct a more modest Lockean idea of
intellectual property51 --building on the notion of "enough and
as good" left over for others and drawing the limits tightly
enough to avoid the worst of Mr. Helprin's excesses. But as one
attempts to do this systematically, the power of the
Jeffersonian vision becomes all the more apparent--at least as a
starting place.
73
The Jefferson Warning will play an important role in this book.
But my arguments here have implications far beyond Jefferson's
time, country, or constitutional tradition. In the last
analysis, I hope to convince you of the importance of the
Jefferson Warning or the views of Macaulay not because they are
famous authorities and revered thinkers or because they framed
constitutions or debated legislation. I wish to convince you
that their views are important because they encapsulate neatly
an important series of truths about intellectual property. We
should listen to the Jefferson Warning not because it is
prestigious but because of its insight. As the Diderot-Condorcet
debates point out, the questions on which Jefferson and Macaulay
focused do not disappear merely because one embraces a
philosophy of moral rights--if anything, they become more
pressing, particularly when one comes to define the limits of
intellectual property in scope and time. I ask that those
readers who remain leery of the Jeffersonian focus concentrate
on that last issue. In an era when we have been expanding
intellectual property rights relentlessly, it is a crucial one.
If the Jefferson Warning produces in my unconvinced reader even
a slight queasiness about the likely effects of such a process
of expansion, it will have done its job--though in fact the
tradition it represented was much richer than a simple
utilitarian series of cautions.
74
A TRADITION OF SKEPTICAL MINIMALISM
75
Eighteenth- and nineteenth-century intellectual property debates
went beyond Macaulay's antimonopolist focus on price, access,
quality, and control of the nation's literary heritage. While
Macaulay is the best-remembered English skeptic from the 1840s,
there were other, more radical skeptics who saw copyright
primarily as a "tax on literacy" or a "tax on knowledge,"
identical in its effects to the newspaper stamp taxes.52 This
was a time when mass literacy and mass education were the hotly
debated corollaries to the enlargement of the franchise. The
radical reformers looked with hostility on anything that seemed
likely to raise the cost of reading and thus continue to
restrict political and social debate to the wealthier classes.
Macaulay worried about a world in which "a copy of Clarissa
would . . . [be] as rare as an Aldus or a Caxton."53 His more
radical colleagues saw copyright--to use our ugly jargon rather
than theirs--as one of the many ways in which state
communications policy is set and the communicative landscape
tilted to favor the rich and powerful.54 Macaulay worried about
the effects of monopoly on literature and culture. All of them
worried about the effects of copyright on democracy, on speech,
on education. In the world of the Internet, these skeptics too
have their contemporary equivalents.
76
Patent law also attracted its share of attacks in the mid-
nineteenth century. A fusillade of criticism, often delivered by
economists and cast in the language of free trade, portrayed the
patent system as actively harmful.
77
At the annual meeting of the Kongress deutscher Volkswirthe
held in Dresden, September 1863, the following resolution was
adopted "by an overwhelming majority": "Considering that patents
hinder rather than further the progress of invention; that they
hamper the prompt general utilization of useful inventions; that
on balance they cause more harm than benefit to the inventors
themselves and, thus, are a highly deceptive form of
compensation; the Congress of German Economists resolves: that
patents of invention are injurious to common welfare."55
78
In the Netherlands, the patent system was actually abolished in
1869 as a result of such criticisms. Observers in a number of
other countries, including Britain, concluded that their
national patent systems were doomed. Various proposals were made
to replace patents, with state-provided prizes or bounties to
particularly useful inventions being the most popular.56
79
These snippets are hardly sufficient to constitute any kind of
survey of critical reactions to intellectual property systems,
but I believe that nevertheless they give us some sense of
typical debates. What do these debates tell us?
80
From the early days of intellectual property as we know it now,
the main objections raised against it were framed in the
language of free trade and "anti-monopoly." In the United
States, the founding generation of intellectuals had been
nurtured on the philosophy of the Scottish Enlightenment and the
history of the struggle against royal monopolies. They saw the
arguments in favor of intellectual property but warned again and
again of the need to circumscribe both its term and its scope.
This is the point at the heart of Jefferson's letter. This is
why he insisted that we understand the policy implications of
the differences between tangible property and ideas, which "like
fire" are "expansible over all space, without lessening their
density in any point."
81
What were the concerns of these early critics? They worried
about intellectual property producing artificial scarcity, high
prices, and low quality. They insisted that the benefits of each
incremental expansion of intellectual property be weighed
against its costs. Think of Macaulay discussing Johnson's
preference for a shin of beef rather than another slice of
postmortem copyright protection. They worried about its justice;
given that we all learn from and build on the past, do we have a
right to carve out our own incremental innovations and protect
them by intellectual property rights?57 Price aside, they also
worried that intellectual property (especially with a lengthy
term) might give too much control to a single individual or
corporation over some vital aspect of science and culture. In
more muted fashion, they discussed the possible effects that
intellectual property might have on future innovation. The most
radical among them worried about intellectual property's effects
on political debate, education, and even control of the
communications infrastructure, though they did not use that
particular phrase. But the overwhelming theme was the promotion
of free trade and a corresponding opposition to monopolies.
82
Now if we were to stop here and simply require that today's
policy makers, legislators, and judges recite the Jefferson
Warning before they rush off to make new intellectual property
rules for the Internet and the genome, we would have
accomplished a great deal. National and international policy
makers are keen to set the "rules of the road for the digital
age." If they would momentarily pause their excited millenarian
burbling and read the points scratched out with a quill pen in
1813, or delivered (without PowerPoint support) on the floor of
the House of Commons in the 1840s, we would be better off.
Everyone is beginning to understand that in the world of the
twenty-first century the rules of intellectual property are both
vital and contentious. How good it would be then if our debate
on intellectual property policy were as vigorous and as informed
as the debates of the nineteenth century. (Though we might hope
it would also be more democratic.)
83
And yet . . . there is much that is missing from the skepticism
of the eighteenth and nineteenth centuries and much that remains
unclear. Look at the structure of these comments; they are
framed as criticisms of intellectual property rather than
defenses of the public domain or the commons, terms that simply
do not appear in the debates. There is no real discussion of the
world of intellectual property's outside, its opposite. Most of
these critics take as their goal the prevention or limitation of
an "artificial" monopoly; without this monopoly our goal is to
have a world of--what? The assumption is that we will return to a
norm of freedom, but of what kind? Free trade in expression and
innovation, as opposed to monopoly? Free access to expression
and innovation, as opposed to access for pay? Or free access to
innovation and expression in the sense of not being subject to
the right of another person to pick and choose who is given
access, even if all have to pay some flat fee? Or is it common
ownership and control that we seek, including the communal right
to forbid certain kinds of uses of the shared resource? The
eighteenth- and nineteenth-century critics brushed over these
points; but to be fair, we continue to do so today. The opposite
of property, or perhaps we should say the opposites of property,
are much more obscure to us than property itself.
84
For the most part, the antimonopolist view of intellectual
property makes a simple case. Monopolies are bad. Have as few as
possible and make them as narrow and as short as possible. This
is a fine principle, but it falls short of an affirmative
explanation and defense of the role of the public domain or the
commons in enabling creativity, culture, and science. That is a
shame because just as intellectual property is different from
tangible property, so too is its opposite, its outside.
85
What are those opposites? The two major terms in use are "the
public domain" and "the commons." Both are used in multiple
ways--probably a good thing. The public domain is material that
is not covered by intellectual property rights. Material might
be in the public domain because it was never capable of being
owned. Examples would be the English language or the formulae of
Newtonian physics. Alternatively, something might be in the
public domain because rights have expired. The works of
Shakespeare or the patents over powered flight are examples.
86
Some definitions of the public domain are more granular. They
focus not only on complete works but on the reserved spaces of
freedom inside intellectual property. The public domain would
include the privilege to excerpt short quotations in a review.
This vision is messier, but more instructive. If one uses a
spatial metaphor, the absolutist vision is a tessellated map.
Areas of private property are neatly delineated from areas of
the public domain. Mozart's plot sits next to that of Britney
Spears; one public, the other private. In the granular view, the
map is more complex. Ms. Spears' plot is cut through with rights
to make fair use, as well as with limitations on ownership of
standard themes. Instead of the simple tiled map, the granular
vision has private plots with public roads running through them.
87
In popular discussion, we tend to use the absolutist view of
both property and the public domain. Lawyers prefer the more
complex view of property and are coming slowly to have a
similarly complex view of the public domain. That is the
definition I will be using.
88
The term "commons" is generally used to denote a resource over
which some group has access and use rights--albeit perhaps under
certain conditions. It is used in even more ways than the term
"public domain." The first axis along which definitions of the
term "commons" vary is the size of the group that has access
rights. Some would say it is a commons only if the whole society
has access. That is the view I will take here.
89
The other difference between public domain and commons is the
extent of restrictions on use. Material in the public domain is
free of property rights. You may do with it what you wish. A
commons can be restrictive. For example, some open source
software makes your freedom to modify the software contingent on
the condition that your contributions, too, will be freely open
to others. I will discuss this type of commons in Chapter 8.
90
So these are working definitions of public domain and commons.
But why should we care? Because the public domain is the basis
for our art, our science, and our self-understanding. It is the
raw material from which we make new inventions and create new
cultural works. Why is it so important? Let us start with the
dry reasons.
91
Information and innovation are largely nonrival and
nonexcludable goods. This is Jefferson's point, though expressed
in less graceful language. It has some interesting corollaries.
Information is hard to value until you have it, but once you
have it, how can you dispossess yourself of it? The apple can be
taken back by the merchant if you decide not to buy. The facts
or the formulae cannot. The moment when you might have decided
to pay or not to pay is already over. The great economist
Kenneth Arrow formalized this insight about information
economics,58 and it profoundly shapes intellectual property
policy. (To a large extent, for example, the requirement of
"patent disclosure" attempts to solve this problem. I can read
all about your mousetrap but I am still forbidden from using it.
I can decide whether or not to license your design at that
point.) But for all the material in the public domain, where no
intellectual property right is necessary, this point is solved
elegantly by having the information be "free as the air to
common use." All of us can use the same store of information,
innovation, and free culture. It will be available at its cost
of reproduction--close to zero--and we can all build upon it
without interfering with each other. Think of the English
language, basic business methods, tables of logarithms, the
Pythagorean theorem, Shakespeare's insights about human nature,
the periodic table, Ohm's law, the sonnet form, the musical
scale.
92
Would you have paid to purchase access to each of these? I might
tell you that English was a superior communication tool--a really
good command language for your cognitive operating system. There
could be levels of access with corresponding prices. Would you
pay to get access to "English Professional Edition"? We can
certainly imagine such a way of organizing languages. (To some
extent, scribal conventions operated this way. The languages of
the professions still do. One paid for access to "law French" in
the common law courts of England. One pays for an interpreter of
contemporary legal jargon in today's legal system. But even
there the language is free to the autodidact.) We can imagine
language, scientific knowledge, basic algebra, the tonic scale,
or the classics of four-hundred-year-old literature all being
available only as property. Those who had the highest "value for
use" would purchase them. Those who did not value them
highly--whether because they could not know what could be built
with them until they had done so or because they did not have
the money--would not. What would this world, this culture, this
science, this market look like?
93
It would probably be very inefficient, the economists tell us.
Perfect information is a defining feature of the perfect market.
The more commodified and restricted our access to information,
the less efficient the operation of the market, the more poorly
it allocates resources in our society. (The permanent and in
some sense insoluble tension between the need to provide
incentives to generate information, thus raising its cost, and
the need to have access to perfect information for efficiency is
the central feature of our intellectual property policy.)59 When
we commodify too much we actually undermine creativity, since we
are raising the price of the inputs for future creations--which
might themselves be covered by intellectual property rights. But
"inefficient" is too bloodless a way to describe this world. It
would be awful.
94
Our markets, our democracy, our science, our traditions of free
speech, and our art all depend more heavily on a public domain
of freely available material than they do on the informational
material that is covered by property rights. The public domain
is not some gummy residue left behind when all the good stuff
has been covered by property law. The public domain is the place
we quarry the building blocks of our culture. It is, in fact,
the majority of our culture. Or at least it has been.
95
I deliberately gave easy examples. It is obvious how unnecessary
but also how harmful it would be to extend property rights to
language, to facts, to business methods and scientific
algorithms, to the basic structures of music, to art whose
creators are long dead. It is obvious that this would not
produce more innovation, more debate, more art, more democracy.
But what about the places where the value of the public domain
is not obvious?
96
What if we were actually moving to extend patents to business
methods, or intellectual property rights to unoriginal
compilations of facts? What if we had locked up most of
twentieth-century culture without getting a net benefit in
return? What if the basic building blocks of new scientific
fields were being patented long before anything concrete or
useful could be built from them? What if we were littering our
electronic communication space with digital barbed wire and
regulating the tiniest fragments of music as if they were stock
certificates? What if we were doing all this in the blithe
belief that more property rights mean more innovation? The story
of this book is that we are.
97
The Jefferson Warning is important. It is, however, just a
warning. While it would be excellent to print it on pocket cards
and hand it to our elected representatives, that alone will not
solve the most pressing problems we face. In the chapters that
follow, I shall try to go further. In Chapter 3, I set the
process of expansion we are engaged in--our "second enclosure
movement"--in perspective by comparing it to the original
enclosures of the grassy commons of old England. In Chapter 4, I
jump from the world of the fifteenth or nineteenth century to
the world of the twenty-first, from elevators and grain hoppers
to video recorders, the Internet, and file-sharing services. I
use the story of several key legal disputes to illustrate a
broader history--the history of intellectual property's struggle
with communications technologies that allow people to copy more
cheaply. Strangely enough, the Jefferson Warning will be crucial
in understanding the debate over copyright online and, in
particular, in understanding the fear that drives our current
policy making, a fear I refer to as the Internet Threat.
Chapter 3: The Second Enclosure Movement
1
The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
2
The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.
3
The poor and wretched don't escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.
4
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.
[Anon.]1
5
In fits and starts from the fifteenth to the nineteenth century,
the English "commons" was "enclosed." 2 Enclosure did not
necessarily mean physical fencing, though that could happen.
More likely, the previously common land was simply converted
into private property, generally controlled by a single
landholder.
6
The poem that begins this chapter is the pithiest condemnation
of the process. It manages in a few lines to criticize double
standards, expose the controversial nature of property rights,
and take a slap at the legitimacy of state power. And it does
this all with humor, without jargon, and in rhyming couplets.
Academics should take note. Like most criticisms of the
enclosure movement, the poem depicts a world of rapacious,
state-aided "privatization," a conversion into private property
of something that had formerly been common property or perhaps
had been outside the property system altogether. One kind of
"stealing" is legal, says the poet, because the state changes
the law of property to give the "lords and ladies" a right over
an area formerly open to all. But let a commoner steal something
and he is locked up.
7
The anonymous author was not alone in feeling indignant. Thomas
More (one of only two saints to write really good political
theory) made similar points, though he used sheep rather than
geese in his argument. Writing in the sixteenth century, he had
argued that enclosure was not merely unjust in itself but
harmful in its consequences: a cause of economic inequality,
crime, and social dislocation. In a wonderfully bizarre passage
he argues that sheep are a principal cause of theft. Sheep? Why,
yes.
8
[Y]our sheep that were wont to be so meek and tame, and so
small eaters, now, as I hear say, be become so great devourers
and so wild, that they eat up, and swallow down the very men
themselves. They consume, destroy, and devour whole fields,
houses, and cities.
9
Who were these sheep? Bizarre Dolly-like clones? Transgenic
killer rams? No. More meant only that under the economic lure of
the wool trade, the "noblemen and gentlemen" were attempting
their own enclosure movement.
10
[They] leave no ground for tillage, they enclose all into
pastures; they throw down houses; they pluck down towns, and
leave nothing standing, but only the church to be made a sheep-
house. . . . Therefore that one covetous and insatiable
cormorant and very plague of his native country may compass
about and enclose many thousand acres of ground together within
one pale or hedge, the husbandmen be thrust out of their own.3
11
The sheep devour all. The dispossessed "husbandmen" now find
themselves without land or money and turn instead to theft. In
More's vision, it is all very simple. Greed leads to enclosure.
Enclosure disrupts the life of the poor farmer. Disruption leads
to crime and violence.
12
Writing 400 years later, Karl Polanyi echoes More precisely. He
calls the enclosure movement "a revolution of the rich against
the poor" and goes on to paint it in the most unflattering
light. "The lords and nobles were upsetting the social order,
breaking down ancient law and custom, sometimes by means of
violence, often by pressure and intimidation. They were
literally robbing the poor of their share in the common. . . ."
4 And turning them to "beggars and thieves." The critics of
enclosure saw other harms too, though they are harder to
classify. They bemoaned the relentless power of market logic to
migrate to new areas, disrupting traditional social
relationships and perhaps even views of the self, or the
relationship of human beings to the environment. Fundamentally,
they mourned the loss of a form of life.
13
So much for the bad side of the enclosure movement. For many
economic historians, everything I have said up to now is the
worst kind of sentimental bunk, romanticizing a form of life
that was neither comfortable nor noble, and certainly not very
egalitarian. The big point about the enclosure movement is that
it worked; this innovation in property systems allowed an
unparalleled expansion of productive possibilities. 5 By
transferring inefficiently managed common land into the hands of
a single owner, enclosure escaped the aptly named "tragedy of
the commons." It gave incentives for large-scale investment,
allowed control over exploitation, and in general ensured that
resources could be put to their most efficient use. Before the
enclosure movement, the feudal lord would not invest in drainage
systems, sheep purchases, or crop rotation that might increase
yields from the common--he knew all too well that the fruits of
his labor could be appropriated by others. The strong private
property rights and single-entity control that were introduced
in the enclosure movement avoid the tragedies of overuse and
underinvestment: more grain will be grown, more sheep raised,
consumers will benefit, and fewer people will starve in the long
run. 6
14
If the price of this social gain is a greater concentration of
economic power, the introduction of market forces into areas
where they previously had not been so obvious, or the disruption
of a modus vivendi with the environment--then, enclosure's
defenders say, so be it! In their view, the agricultural surplus
produced by enclosure helped to save a society devastated by the
mass deaths of the sixteenth century. Those who weep over the
terrible effects of private property should realize that it
literally saves lives.
15
Now it is worth noting that while this view was once
unchallenged, 7 recent scholarship has thrown some doubts on the
effects of enclosure on agricultural production. 8 Some scholars
argue that the commons was actually better run than the
defenders of enclosure admit. 9 Thus, while enclosure did
produce the changes in the distribution of wealth that so
incensed an earlier generation of critical historians, they
argue that there are significant questions about whether it led
to greater efficiency or innovation. The pie was carved up
differently, but did it get bigger? The debate about these
issues is little known, however, outside the world of economic
historians. "Everyone" knows that a commons is by definition
tragic and that the logic of enclosure is as true today as it
was in the fifteenth century. I will not get involved in this
debate. Assume for the sake of argument that enclosure did
indeed produce a surge in agriculture. Assume, in other words,
that converting the commons into private property saved lives.
This is the logic of enclosure. It is a powerful argument, but
it is not always right.
16
This is all very well, but what does it have to do with
intellectual property? I hope the answer is obvious. The
argument of this book is that we are in the middle of a second
enclosure movement. While it sounds grandiloquent to call it
"the enclosure of the intangible commons of the mind," in a very
real sense that is just what it is. 10 True, the new state-
created property rights may be "intellectual" rather than
"real," but once again things that were formerly thought of as
common property, or as "uncommodifiable," or outside the market
altogether, are being covered with new, or newly extended,
property rights.
17
Take the human genome as an example. Again, the supporters of
enclosure have argued that the state was right to step in and
extend the reach of property rights; that only thus could we
guarantee the kind of investment of time, ingenuity, and capital
necessary to produce new drugs and gene therapies. 11 To the
question, "Should there be patents over human genes?" the
supporters of enclosure would answer that private property saves
lives. 12 The opponents of enclosure have claimed that the human
genome belongs to everyone, that it is literally the common
heritage of humankind, that it should not and perhaps in some
sense cannot be owned, and that the consequences of turning over
the human genome to private property rights will be dreadful, as
market logic invades areas which should be the farthest from the
market. In stories about stem cell and gene sequence patents,
critics have mused darkly about the way in which the state is
handing over monopoly power to a few individuals and
corporations, potentially introducing bottlenecks and
coordination costs that slow down innovation. 13
18
Alongside these accounts of the beneficiaries of the new
property scheme run news stories about those who were not so
fortunate, the commoners of the genetic enclosure. Law students
across America read Moore v. Regents of University of
California, a California Supreme Court case deciding that Mr.
Moore had no property interest in the cells derived from his
spleen. 14 The court tells us that giving private property
rights to "sources" would slow the freewheeling practice
researchers have of sharing their cell lines with all and
sundry. 15 The doctors whose inventive genius created a billion-
dollar cell line from Mr. Moore's "naturally occurring raw
material," by contrast, are granted a patent. Private property
rights here, by contrast, are a necessary incentive to research.
16 Economists on both sides of the enclosure debate concentrate
on the efficient allocation of rights. Popular discussion, on
the other hand, doubtless demonstrating a reprehensible lack of
rigor, returns again and again to more naturalistic assumptions
such as the essentially "common" quality of the property
involved or the idea that one owns one's own body. 17
19
The genome is not the only area to be partially "enclosed"
during this second enclosure movement. The expansion of
intellectual property rights has been remarkable--from business
method patents, to the Digital Millennium Copyright Act, to
trademark "anti-dilution" rulings, to the European Database
Protection Directive. 18 The old limits to intellectual property
rights--the antierosion walls around the public domain--are also
under attack. The annual process of updating my syllabus for a
basic intellectual property course provides a nice snapshot of
what is going on. I can wax nostalgic looking back to a five-
year-old text, with its confident list of subject matter that
intellectual property rights could not cover, the privileges
that circumscribed the rights that did exist, and the length of
time before a work falls into the public domain. In each case,
the limits have been eaten away.
20
HOW MUCH OF THE INTANGIBLE COMMONS SHOULD WE ENCLOSE?
21
So far I have argued that there are profound similarities
between the first enclosure movement and our contemporary
expansion of intellectual property, which I call the second
enclosure movement. Once again, the critics and proponents of
enclosure are locked in battle, hurling at each other
incommensurable claims about innovation, efficiency, traditional
values, the boundaries of the market, the saving of lives, the
loss of familiar liberties. Once again, opposition to enclosure
is portrayed as economically illiterate: the beneficiaries of
enclosure telling us that an expansion of property rights is
needed in order to fuel progress. Indeed, the post-Cold War
"Washington consensus" is invoked to claim that the lesson of
history itself is that the only way to get growth and efficiency
is through markets; property rights, surely, are the sine qua
non of markets. 19
22
This faith in enclosure is rooted in a correspondingly deep
pessimism about the possibility of managing resources that are
either commonly owned or owned by no one. If all have the right
to graze their herds on common land, what incentive does anyone
have to hold back? My attempt to safeguard the future of the
pasture will simply be undercut by others anxious to get theirs
while the getting is good. Soon the pasture will be overgrazed
and all our flocks will go hungry. In a 1968 article, Garrett
Hardin came up with the phrase that would become shorthand for
the idea that there were inherent problems with collectively
managed resources: "the tragedy of the commons." 20 The phrase,
more so than the actual arguments in his article, has come to
exercise considerable power over our policies today. Private
property--enclosure--is portrayed as the happy ending for the
tragedy of the commons: when policy makers see a resource that
is unowned, they tend to reach reflexively for "the solving idea
of property." According to this view, enclosure is not a
"revolution of the rich against the poor," it is a revolution to
save the waste of socially vital resources. To say that some
social resource is not owned by an individual, that it is free
as the air to common use, is automatically to conjure up the
idea that it is being wasted.
23
But if there are similarities between our two enclosures, there
are also profound dissimilarities; the networked commons of the
mind has many different characteristics from the grassy commons
of Old England. 21 I want to concentrate here on two key
differences between the intellectual commons and the commons of
the first enclosure movement, differences that should lead us to
question whether this commons is truly tragic and to ask whether
stronger intellectual property rights really are the solution to
our problems. These differences are well known, indeed they are
the starting point for most intellectual property law, a
starting point that Jefferson and Macaulay have already laid out
for us. Nevertheless, reflection on them might help to explain
both the problems and the stakes in the current wave of
expansion.
24
Unlike the earthy commons, the commons of the mind is generally
"nonrival." Many uses of land are mutually exclusive: if I am
using the field for grazing, it may interfere with your plans to
use it for growing crops. By contrast, a gene sequence, an MP3
file, or an image may be used by multiple parties; my use does
not interfere with yours. To simplify a complicated analysis,
this means that the threat of overuse of fields and fisheries is
generally not a problem with the informational or innovational
commons. 22 Thus, one type of tragedy of the commons is avoided.
25
The concerns in the informational commons have to do with a
different kind of collective action problem: the problem of
incentives to create the resource in the first place. The
difficulty comes from the assumption that information goods are
not only nonrival (uses do not interfere with each other), but
also nonexcludable (it is impossible, or at least hard, to stop
one unit of the good from satisfying an infinite number of users
at zero marginal cost). Pirates will copy the song, the
mousetrap, the drug formula, the brand. The rest of the argument
is well known. Lacking an ability to exclude, creators will be
unable to charge for their creations; there will be inadequate
incentives to create. Thus, the law must step in and create a
limited monopoly called an intellectual property right.
26
How about the argument that the increasing importance of
information-intensive products to the world economy means that
protection must increase? Must the information commons be
enclosed because it is now a more important sector of economic
activity? 23 This was certainly one of the arguments for the
first enclosure movement. For example, during the Napoleonic
Wars enclosure was defended as a necessary method of increasing
the efficiency of agricultural production, now a vital sector of
a wartime economy.
27
Here we come to another big difference between the commons of
the mind and the earthy commons. As has frequently been pointed
out, information products are often made up of fragments of
other information products; your information output is someone
else's information input. 24 These inputs may be snippets of
code, discoveries, prior research, images, genres of work,
cultural references, or databases of single nucleotide
polymorphisms--each is raw material for future innovation. Every
increase in protection raises the cost of, or reduces access to,
the raw material from which you might have built those future
products. The balance is a delicate one; one Nobel Prize-winning
economist has claimed that it is actually impossible to strike
that balance so as to produce an informationally efficient
market. 25
28
Whether or not it is impossible in theory, it is surely a
difficult problem in practice. In other words, even if enclosure
of the arable commons always produced gains (itself a subject of
debate), enclosure of the information commons clearly has the
potential to harm innovation as well as to support it. 26 More
property rights, even though they supposedly offer greater
incentives, do not necessarily make for more and better
production and innovation--sometimes just the opposite is true.
It may be that intellectual property rights slow down
innovation, by putting multiple roadblocks in the way of
subsequent innovation. 27 Using a nice inversion of the idea of
the tragedy of the commons, Heller and Eisenberg referred to
these effects--the transaction costs caused by myriad property
rights over the necessary components of some subsequent
innovation--as "the tragedy of the anticommons." 28
29
In short, even if the enclosure movement was a complete success,
there are important reasons to believe that the intangible world
is less clearly a candidate for enclosure, that we should pause,
study the balance between the world of the owned and the world
of the free, gather evidence. After all, even in physical space,
"common" property such as roads increases the value of the
surrounding private tracts. If there are limits to the virtues
of enclosure even there, how much more so in a world of
intangible and nonrival goods, which develop by drawing on prior
creations? Yet the second enclosure movement proceeds
confidently nevertheless--with little argument and less evidence.
30
To be sure, there is a danger of overstatement. The very fact
that the changes have been so one-sided makes it hard to resist
exaggerating their impact. In 1918, Justice Brandeis confidently
claimed that "[t]he general rule of law is, that the noblest of
human productions--knowledge, truths ascertained, conceptions,
and ideas--become, after voluntary communication to others, free
as the air to common use." 29 That baseline--intellectual
property rights are the exception rather than the norm; ideas
and facts must always remain in the public domain--is still
supposed to be our starting point. 30 It is, however, under
attack.
31
Both overtly and covertly, the commons of facts and ideas is
being enclosed. Patents are increasingly stretched to cover
"ideas" that twenty years ago all scholars would have agreed
were unpatentable. 31 Most troubling of all are the attempts to
introduce intellectual property rights over mere compilations of
facts. 32 If U.S. intellectual property law had an article of
faith, it was that unoriginal compilations of facts would remain
in the public domain, that this availability of the raw material
of science and speech was as important to the next generation of
innovation as the intellectual property rights themselves. 33
The system would hand out monopolies in inventions and in
original expression, while the facts below (and ideas above)
would remain free for all to build upon. But this premise is
being undermined. Some of the challenges are subtle: in patent
law, stretched interpretations of novelty and nonobviousness
allow intellectual property rights to move closer and closer to
the underlying data layer; gene sequence patents come very close
to being rights over a particular discovered arrangement of
data--C's, G's, A's, and T's. 34 Other challenges are overt: the
European Database Protection Directive did (and various proposed
bills in the United States would) create proprietary rights over
compilations of facts, often without even the carefully framed
exceptions of the copyright scheme, such as the usefully protean
category of fair use.
32
The older strategy of intellectual property law was a "braided"
one: thread a thin layer of intellectual property rights around
a commons of material from which future creators would draw. 35
Even that thin layer of intellectual property rights was limited
so as to allow access to the material when that was necessary to
further the goals of the system. Fair use allows for parody,
commentary, and criticism, and also for "decompilation" of
computer programs so that Microsoft's competitors can reverse
engineer Word's features in order to make sure their program can
convert Word files. It may sound paradoxical, but in a very real
sense protection of the commons was one of the fundamental goals
of intellectual property law.
33
In the new vision of intellectual property, however, property
should be extended everywhere; more is better. Expanding
patentable and copyrightable subject matter, lengthening the
copyright term, giving legal protection to "digital barbed
wire," even if it is used to prevent fair use: each of these can
be understood as a vote of no confidence in the productive
powers of the commons. We seem to be shifting from Brandeis's
assumption that the "noblest of human productions are free as
the air to common use" to the assumption that any commons is
inefficient, if not tragic.
34
The expansion is more than a formal one. It used to be
relatively hard to violate an intellectual property right. The
technologies of reproduction or the activities necessary to
infringe were largely, though not entirely, industrial. Imagine
someone walking up to you in 1950, handing you a book or a
record or a movie reel, and saying "Quick! Do something the law
of intellectual property might forbid." (This, I admit, is a
scenario only likely to come to the mind of a person in my line
of work.) You would have been hard-pressed to do so. Perhaps you
could find a balky mimeograph machine, or press a reel-to-reel
tape recorder into use. You might manage a single unauthorized
showing of the movie--though to how many people? But triggering
the law of intellectual property would be genuinely difficult.
Like an antitank mine, it would not be triggered by the
footsteps of individuals. It was reserved for bigger game.
35
This was no accident. The law of intellectual property placed
its triggers at the point where commercial activity by
competitors could undercut the exploitation of markets by the
rights holder. Copying, performance, distribution--these were
things done by other industrial entities who were in competition
with the owner of the rights: other publishers, movie theaters,
distributors, manufacturers. In practice, if not theory, the law
was predominantly a form of horizontal industry regulation of
unfair competition--made by the people in the affected industries
for the people in the affected industries. The latter point is
worth stressing. Congress would, and still does, literally hand
over the lawmaking process to the industries involved, telling
them to draft their intra-industry contract in the form of a
law, and then to return to Congress to have it enacted. The
public was not at the table, needless to say, and the assumption
was that to the extent there was a public interest involved in
intellectual property law, it was in making sure that the
industries involved got their act together, so that the flow of
new books and drugs and movies would continue. Members of the
public, in other words, were generally thought of as passive
consumers of finished products produced under a form of
intraindustry regulation that rarely implicated any act that an
ordinary person would want, or be able, to engage in.
36
In the world of the 1950s, these assumptions make some
sense--though we might still disagree with the definition of the
public interest. It was assumed by many that copyright need not
and probably should not regulate private, noncommercial acts.
The person who lends a book to a friend or takes a chapter into
class is very different from the company with a printing press
that chooses to reproduce ten thousand copies and sell them. The
photocopier and the VCR make that distinction fuzzier, and the
networked computer threatens to erase it altogether.
37
So how are things different today? If you are a person who
routinely uses computers, the Internet, or digital media,
imagine a day when you do not create--intentionally and
unintentionally--hundreds of temporary, evanescent copies. (If
you doubt this, look in the cache of your browser.) Is there a
day when you do not "distribute" or retransmit fragments of
articles you have read, when you do not seek to share with
friends some image or tune? Is there a day when you do not
rework for your job, for your class work, or simply for pastiche
or fun, some of the digital material around you? In a networked
society, copying is not only easy, it is a necessary part of
transmission, storage, caching, and, some would claim, even
reading. 36
38
As bioinformatics blurs the line between computer modeling and
biological research, digital production techniques blur the
lines between listening, editing, and remaking. "Rip, mix, and
burn," says the Apple advertisement. It marks a world in which
the old regime of intellectual property, operating upstream as a
form of industrial competition policy, has been replaced.
Intellectual property is now in and on the desktop and is
implicated in routine creative, communicative, and just plain
consumptive acts that each of us performs every day. Suddenly,
the triggers of copyright--reproduction, distribution--can be
activated by individual footsteps.
39
Of course, we would hope that in your daily actions you
scrupulously observed the rights--all the rights--of the companies
that have interests in the texts, tunes, images of celebrities,
trademarks, business method patents, and fragments of computer
code you dealt with. Did you? Can you be sure? I teach
intellectual property, but I admit to some uncertainty.
40
I would not have imagined that a temporary image of a Web page
captured in the cache of my browser counted as a "copy" for the
purposes of copyright law. 37 I would have thought that it was
fair use for a company to photocopy articles in journals it
subscribed to, and paid for, in order to circulate them to its
researchers. 38 If a conservative Web site reposted news
articles from liberal newspapers with critical commentary, that,
too, would have seemed like fair use. 39 I would have thought
that it was beneficial competition, and not a trespass, for an
electronic "aggregator" to gather together auction prices or
airline fares, so as to give consumers more choice. 40 I would
not have thought that a search engine that catalogued and
displayed in framed format the digital graphics found on the
Internet would be sued for infringing the copyrights of the
owners of those images. 41 I would not have thought that I might
be sued for violating intellectual property law if I tried to
compete with a printer company by making toner cartridges that
were compatible with its printers. 42
41
The examples go on. I know that the "research exemption" in U.S.
patent law is very tightly limited, but I would have laughed if
you had told me that even a research university was forbidden
from doing research unless that research had no conceivable
practical or academic worth--in other words that even in
academia, in a project with no commercial goal, the research
exemption only covered research that was completely pointless.
43 Why have an exemption at all, in that case? I would have told
an academic cryptography researcher that he need not fear legal
threats from copyright owners simply for researching and
publishing work on the vulnerabilities of copy protection
schemes. 44 I would not have thought that one could patent the
idea of having an electronic Dutch auction on the Internet,
working out the daily prices of a bundle of mutual funds through
simple arithmetic, or buying something online with one click. 45
I would have assumed that celebrities' rights to control their
images should end with their deaths, and that courts would agree
that those rights were tightly limited by the First Amendment.
Yet, in each of these cases, I would have been wrong, or at
least I might be wrong--enough that a sane person would worry.
Not all of the expansive claims eventually triumphed, of course,
but some did. Guessing which would and which would not was hard
even for me, though, as I said, I teach intellectual property
law. You, probably, do not.
42
In 1950 none of this would have mattered. Unless you were in
some related business--as a publisher, broadcaster, film
distributor, or what have you--it would have been hard for you to
trigger the rules of intellectual property law. If you were in
such a business, you were probably very familiar with the rules
that governed your activities and well represented by corporate
counsel who knew them even better. What's more, the rules were
neither as complex nor as counterintuitive as they are now. They
also did not reach as far. The reach of the rights has been
expanded, and their content made more difficult to understand,
at the exact moment that their practical effect has been
transformed. It is not merely that the triggers of intellectual
property law can easily be set off by individual footsteps.
There are now many more triggers and their trip wires are harder
to see.
43
From the point of view of the content industries, of course, all
this is foolishness. It is not some undesirable accident that
intellectual property has come to regulate personal,
noncommercial activity. It is absolutely necessary. Think of
Napster. When individuals engaging in noncommercial activity
have the ability to threaten the music or film industry's
business plan by engaging in the very acts that copyright law
always regulated--namely reproduction and distribution--of course
it is appropriate for them, and the networks they "share" on, to
be subject to liability. What's more, to the extent that copying
becomes cheaper and easier, it is necessary for us to strengthen
intellectual property rights. We must meet the greater danger of
copying with more expansive rights, harsher penalties, and
expanded protections, some of which may indeed have the
practical effect of reducing rights that citizens thought they
had, such as fair use, low-level noncommercial sharing among
personal friends, resale, and so on. Without an increase in
private property rights, in other words, cheaper copying will
eat the heart out of our creative and cultural industries. I
call this claim the Internet Threat.
Chapter 4: The Internet Threat
1
The conventional wisdom is that governments respond slowly to
technological change. In the case of the Internet, nothing could
be further from the truth. In 1994 and 1995, "dot-com" was still
a mystical term for many. Most stories about the Internet dealt
with sexual predation rather than possibilities of extreme
wealth. Internet commerce itself was barely an idea, and some of
the most exciting sites on the Web had pictures of coffeepots in
university departments far away. ("See," one would proudly say
to a technological neophyte friend when introducing him to the
wonders of the Net, "the pot is empty and we can see that live
from here! This changes everything!") It was an innocent time.
Yet the U.S. government was already turning the wheels of
intellectual property policy to respond to the threat (and
promise) of the Internet. More precisely, they were trying to
shape the future of the cumbersomely named "National Information
Infrastructure," the official name for the "information
superhighway" that it was presumed would replace the "immature"
technology of the Net. The government was wrong about that, and
about a lot else.
2
The blueprint for new intellectual property policy online came
from the Patent and Trademark Office. That office promulgated
first a Green Paper and then, after further hearings, a White
Paper, on "Intellectual Property and the National Information
Infrastructure."1 As policy and legal documents these are in one
sense long out of date. Some of their legal arguments were
successfully challenged. Some of their most important proposals
were rejected, while many others have become law. But as a
starting point from which to trace the frame of mind that has
come to dominate intellectual property policy online, they are
hard to equal.
3
These documents contained proposals that nowadays would be seen
as fairly controversial. Internet service providers were said to
be "strictly liable" for copyright violations committed by their
subscribers; that is to say, they were legally responsible
whether or not they knew about the violation or were at fault in
any way. Loading a document into your browser's transient cache
memory while reading it was said to be making a "copy." There
was more: the beginnings of what later became the Digital
Millennium Copyright Act,2 making it illegal to cut through the
digital fences which content providers put around their
products. The attitude toward fair use was particularly
revealing. At one point in the White Paper it was hinted that
fair use might be a relic of the inconveniences of the analog
age, to be discarded now that we could have automated fractional
payments for even the most insignificant use.3 (It was noted,
however, that some disagreed with this conclusion.) At another
point, fair use was described as a "tax" on rights holders and a
"subsidy" to those who benefited from it, such as educational
institutions.4 The White Paper also suggested that while any
potential loss to rights holders caused by the new technology
needed to be countered with new rights and new protections, any
potential gain to them through the new technology was simply
theirs. Potential gain did not offset the need to compensate for
potential loss.
4
So what views of intellectual property were we carrying forward
into the Internet age? Intellectual property is just like other
property. Rights are presumptively absolute. Any limitations on
them, such as fair use, are taxes on property owners, subsidies
to the society at large. It sounds like a perfect time to
administer the Jefferson Warning I sketched out in Chapter 2.
After all, Jefferson was specifically warning against each of
these errors two hundred years ago. To find them in a student
paper would be disappointing--irritating, even. But this document
was the blueprint for the intellectual property regime of
cyberspace.
5
But do these mistakes matter? How important is it that we get
the rules of intellectual property right? To me, a number of my
colleagues, some librarians, a few software gurus, the White
Paper was more than just a bit of bad policy in a technical
field--like a poorly drafted statute about the witnessing of
wills, say. When you set up the property rules in some new
space, you determine much about the history that follows.
Property rules have a huge effect on power relationships and
bargaining positions. Think of rules setting out water rights or
the right to drive cattle over homesteaders' land in the
American West. But they also are part of a larger way of seeing
the world; think of the early-twentieth-century rules treating
unions as "conspiracies in restraint of trade" or the Supreme
Court decisions that dispossessed the American Indians on the
theory that they did not comprehend the concept of property and
thus did not "own" the land being taken from them.5 We were at a
comparable point in the history of cyberspace. What was being
set up here was a vision of economy and culture, a frame of mind
about how the world of cultural exchange operates, and
eventually a blueprint for our systems of communication. At this
stage, the range of possibilities is extremely wide. A lot of
different choices could be made, but subsequent changes would be
harder and harder as people and companies built their activities
around the rules that had been laid down. This was, in short, a
tipping point where it was particularly important that we make
the right decisions.
6
Conventional political science told us there were a lot of
reasons to fear that we would not make the right decisions. The
political process was going to be particularly vulnerable to
problems of capture by established industries, many of whom
would (rightly) see the Internet as a potential threat to their
role as intermediaries between artists and creators on the one
hand and the public on the other.
7
Intellectual property legislation had always been a cozy world
in which the content, publishing, and distribution industries
were literally asked to draft the rules by which they would
live. The law was treated as a kind of contract between the
affected industries. Rationally enough, those industries would
wish to use the law not merely to protect their legitimate
existing property rights, but to make challenges to their basic
business plans illegal. (Imagine what would have happened if we
had given the lamp-oil sellers the right to define the rules
under which the newfangled electric light companies would
operate.) There would be no easy counterweight to these
pressures, as Jessica Litman points out in a wonderful set of
reflections on copyright lawmaking, because the potential
competitors to existing titans were just being born and could
thus be strangled safely in their cradles.6 Certainly the public
would have little grasp as yet of what was at stake.
8
In any event, when had the public played a role in intellectual
property legislation? That kind of law affected businesses with
printing presses or TV towers, not normal citizens. It did not
help that the legislators were largely both ignorant and
distrustful of the technology of the Internet--which was, at the
time, thought to be dominated by foreign hackers, suicidal
cults, pirates, and sleazy pornographers. (Terrorists and
Nigerian spammers would be added to the mix later.)
9
Given an area of law that legislators were happy to hand over to
the affected industries and a technology that was both
unfamiliar and threatening, the prospects for legislative
insight were poor. Lawmakers were assured by lobbyists
10
a) that this was business as usual, that no dramatic changes
were being made by the Green or White papers; or
b) that the technology presented a terrible menace to the
American cultural industries, but that prompt and statesmanlike
action would save the day; or
c) that layers of new property rights, new private enforcers of
those rights, and technological control and surveillance
measures were all needed in order to benefit consumers, who
would now be able to "purchase culture by the sip rather than by
the glass" in a pervasively monitored digital environment.
11
In practice, somewhat confusingly, these three arguments would
often be combined. Legislators' statements seemed to suggest
that this was a routine Armageddon in which firm, decisive
statesmanship was needed to preserve the digital status quo in a
profoundly transformative and proconsumer way. Reading the
congressional debates was likely to give one conceptual
whiplash.
12
To make things worse, the press was--in 1995, at least--clueless
about these issues. It was not that the newspapers were ignoring
the Internet. They were paying attention--obsessive attention in
some cases. But as far as the mainstream press was concerned,
the story line on the Internet was sex: pornography, online
predation, more pornography. The lowbrow press stopped there. To
be fair, the highbrow press was also interested in Internet
legal issues (the regulation of pornography, the regulation of
online predation) and constitutional questions (the First
Amendment protection of Internet pornography). Reporters were
also asking questions about the social effect of the network
(including, among other things, the threats posed by pornography
and online predators).
13
There were certainly important issues within the areas the press
was willing to focus on, and I do not mean to trivialize them. I
worked with a couple of civil liberties groups in opposing the
hapless Communications Decency Act, one of the most poorly
drafted pieces of speech regulation ever to come out of
Congress.7 It was a palpably unconstitutional statute,
eventually struck down by a unanimous Supreme Court.8 Its
proposals would have burdened the speech of adults while failing
to protect the interests of minors. Reporters loved the topic of
the Communications Decency Act. It was about sex, technology,
and the First Amendment. It foreshadowed the future of online
speech regulation. One could write about it while feeling
simultaneously prurient, principled, and prescient: the
journalistic trifecta. For law professors who worked on digital
issues, the Communications Decency Act was an easy topic to get
the public to focus on; we had the reporters and editors calling
us, pleading for a quote or an opinion piece.
14
Intellectual property was something quite different. It was
occasionally covered in the business pages with the same
enthusiasm devoted to changes in derivatives rules. Presented
with the proposals in the Green and White Papers, the reporters
went looking for opinions from the Software Publishers
Association, the Recording Industry Association of America, or
the Motion Picture Association of America. This was not bias or
laziness--to whom else would they go? Who was on the "other side"
of these issues? Remember, all of this occurred before Napster
was a gleam in Sean Fanning's eye. Sean Fanning was in middle
school. Amazon.com was a new company and "Google" was not yet a
verb.
15
In this environment, convincing the legislature or the press
that fundamental public choices were implicated in the design of
intellectual property rights for the digital world was about as
easy as convincing them that fundamental public choices were
implicated in the rules of tiddlywinks. My own experience is
probably representative. I remember trying to pitch an article
on the subject to a charming but uncomprehending opinion page
editor at the Washington Post. I tried to explain that decisions
about property rules would shape the way we thought about the
technology. Would the relatively anonymous and decentralized
characteristics of the Internet that made it such a powerful
tool for global speech and debate come to be seen as a bug
rather than a feature, something to be "fixed" to make the Net
safe for protected content? The rules would also shape the
economic interests that drove future policy. Would we try to
build the system around the model of proprietary content
dispensed in tightly controlled chunks? Would fair use be made
technologically obsolescent? Would we undercut the various
nontraditional methods of innovation, such as free software,
before they ever managed to establish themselves? What would
become of libraries in the digital world, of the ideal that
access to books had important differences from access to
Twinkies? After I concluded this lengthy and slightly incoherent
cri de Coeur, there was a long pause; then the editor said
politely, "Are you sure you couldn't make some of these points
about a free speech issue, like the Communications Decency Act,
maybe?"
16
I finally placed the piece in the Washington Times,9 which was
best known at the time as the only metropolitan newspaper owned
by the Unification Church, familiarly referred to as the
Moonies. This hardly counted as a direct line to the popular
imagination (though the article's mild criticisms elicited an
extraordinary reaction from the Clinton administration's lead
official on intellectual property policy--throwing me for several
weeks into a surreal world of secondhand threats, third-party
leaks, and a hilarious back-and-forth in the letters page).10
17
Things were not completely one-sided. An unlikely group of
critics had formed: librarians, a few software developers, law
professors, some Internet libertarians. Of particular note was
the Digital Future Coalition, which grew to represent a broad
range of interested groups and industries thanks in part to the
prescient analysis and remarkable energy of one of my
colleagues, Peter Jaszi.11 Together with Pamela Samuelson,
Jessica Litman, and a number of other distinguished legal
scholars, Peter turned his considerable intellectual talents to
explaining why writers, telecom companies, scientists,
manufacturers of consumer electronics, and a host of other
groups should be interested in the rules being debated. There
had been a series of official hearings in which complaints were
carefully collected and just as carefully ignored. This became
harder to do as the critics became more numerous and better
organized. Nevertheless, the currents were clearly running
against them. It would be nice to say that this was merely
because of the clubby history of intellectual property
legislation, or the difficulty in getting press attention, or
the various issues of industry capture and collective action
problems. Yet this would be to miss a vital element of the
situation.
18
Conventional political science showed that there were structural
reasons why the legislative process was likely to succumb to
industry capture.12 The reality turned out to be much worse. The
real problem was not a political process dominated by cynical
power politics, nor an initial absence of critical newspaper
coverage, though both of those factors contributed. The real
problem was that most of the proponents of the White Paper's
policies believed their own arguments so deeply and sincerely
that they saw any criticism of those positions as either godless
communism or hippy digital anarchism. (Frequently, in fact, they
clung to their arguments even when there was fairly strong
evidence that they would actually be harming themselves by
putting these policies into effect. I will expand on this point
later.) More importantly, they succeeded in getting their story
about the threats and promises of the digital future accepted as
the basis for all discussion of intellectual property policy. It
became the organizing set of principles, the master
narrative--call it what you will.
19
The heart of the story is beguilingly simple. The Internet makes
copying cheaper and does so on an unparalleled global scale.
Therefore we must meet the greater danger of illicit copying
with more expansive rights, harsher penalties, and expanded
protections. True, as I pointed out before, some of these
expansions may indeed have the practical effect of reducing
rights that citizens thought they had, such as fair use, low-
level noncommercial sharing among personal friends, resale, and
so on. But without an increase in private property rights,
cheaper copying will eat the heart out of our creative and
cultural industries. I call this story the Internet Threat. It
is a powerful argument and it deserves some explanation.
20
Think back for a moment to the first chapter and the difference
between Madame Bovary and the petunia. If the reason for
intellectual property rights is the "nonrival" and
"nonexcludable" nature of the goods they protect, then surely
the lowering of copying and transmission costs implies a
corresponding need to increase the strength of intellectual
property rights. Imagine a line. At one end sits a monk
painstakingly transcribing Aristotle's Poetics. In the middle
lies the Gutenberg printing press. Three-quarters of the way
along the line is a photocopying machine. At the far end lies
the Internet and the online version of the human genome. At each
stage, copying costs are lowered and goods become both less
rival and less excludable. My MP3 files are available to anyone
in the world running Napster. Songs can be found and copied with
ease. The symbolic end of rivalry comes when I am playing the
song in Chapel Hill, North Carolina, at the very moment that you
are both downloading and listening to it in Kazakhstan--now that
is nonrival.
21
THE LOGIC OF PERFECT CONTROL
22
My point is that there is a teleology--a theory about how
intellectual property law must develop historically--hidden
inside the argument I call the Internet Threat. The argument,
which is touted endlessly by the content industries--and not
without reason--can be reduced to this: The strength of
intellectual property rights must vary inversely with the cost
of copying. With high copying costs, one needs weak intellectual
property rights if any at all. To deal with the monk-copyist, we
need no copyright because physical control of the manuscript is
enough. What does it matter if I say I will copy your
manuscript, if I must do it by hand? How will this present a
threat to you? There is no need to create a legal right to
exclude others from copying, no need for a "copy right." As
copying costs fall, however, the need to exclude increases. To
deal with the Gutenberg press, we need the Statute of Anne--the
first copyright statute--and the long evolution of copyright it
ushered in.
23
But then comes the Internet. To deal with the Internet, we need
the Digital Millennium Copyright Act,13 the No Electronic Theft
Act,14 the Sonny Bono Copyright Term Extension Act,15 and
perhaps even the Collections of Information Antipiracy Act.16 As
copying costs approach zero, intellectual property rights must
approach perfect control. We must strengthen the rights,
lengthen the term of the rights, increase the penalties, and
make noncommercial illicit copying a crime. We must move outside
the traditional realm of copyright altogether to regulate the
technology around the copyrighted material. Companies are
surrounding their digital materials with digital fences. We must
make it a violation of the law to cut those digital fences, even
if you do so to make a "fair use" of the material on the other
side. We must prohibit the making of things that can be used as
fence-cutters--a prospect that worries researchers on encryption.
In the long run, we must get rid of the troublesome anonymity of
the Internet, requiring each computer to have an individual ID.
We must make click-wrap contracts enforceable, even on third
parties, even when you cannot read them before clicking--so that
you never actually buy the software, music, movies, and e-books
you download, merely "license" them for a narrowly defined range
of uses. We must create interlocking software and hardware
systems that monitor and control the material played on those
systems--so that songs can be licensed to particular computers at
particular times. Uses that the owners wish to forbid will
actually be impossible, whether they are legal or not.
24
In other words, we must make this technology of the Internet,
which was hailed as the great "technology of freedom," into a
technology of control and surveillance. The possibility of
individuals circulating costless perfect digital copies requires
it. It would be facile (if tempting) to say we must remake the
Internet to make it safe for Britney Spears. The "Internet
Threat" argument is that we must remake the Net if we want
digital creativity--whether in music or software or movies or e-
texts. And since the strength of the property rights varies
inversely with the cost of copying, costless copying means that
the remade Net must approach perfect control, both in its legal
regime and its technical architecture.
25
Like any attractive but misleading argument, the Internet Threat
has a lot of truth. Ask the software company producing
expensive, specialized computer-assisted design programs costing
thousands of dollars what happens when the program is made
available on a "warez" site or a peer-to-peer filesharing
network. The upstart computer game company pinning its hopes and
its capital on a single new game would tell you the same thing.
The easy availability of perfect, costless copies is a danger to
all kinds of valuable cultural and economic production. The
story of the Internet Threat is not wrong, it is simply
dramatically incomplete in lots of ways. Here are two of them.
26
Costless Copying Brings Both
Costs and Benefits
27
The Internet does lower the cost of copying and thus the cost of
illicit copying. Of course, it also lowers the costs of
production, distribution, and advertising, and dramatically
increases the size of the potential market. Is the net result a
loss to rights holders such that we need to increase protection
and control in order to maintain a constant level of incentives?
A large, leaky market may actually provide more revenue than a
small one over which one's control is much stronger. What's
more, the same technologies that allow for cheap copying also
allow for swift and encyclopedic search engines--the best devices
ever invented for detecting illicit copying. What the Net takes
away with one hand, it often gives back with the other. Cheaper
copying does not merely mean loss, it also means opportunity.
Before strengthening intellectual property rights, we would need
to know whether the loss was greater than the gain and whether
revised business models and new distribution mechanisms could
avoid the losses while capturing more of the gains.
28
But wait, surely theft is theft? If the new technologies enable
more theft of intellectual property, must we not strengthen the
laws in order to deal with the problem? If some new technology
led to a rash of car thefts, we might increase police resources
and prison sentences, perhaps pass new legislation creating new
crimes related to car theft. We would do all of this even if the
technology in question gave car owners significant benefits
elsewhere. Theft is theft, is it not?
29
The answer in a word is no. Saying "theft is theft" is exactly
the error that the Jefferson Warning is supposed to guard
against. We should not assume that intellectual property and
material property are the same in all regards. The goal of
creating the limited monopoly called an intellectual property
right is to provide the minimum necessary incentive to encourage
the desired level of innovation. Anything extra is deadweight
loss. When someone takes your car, they have the car and you do
not. When, because of some new technology, someone is able to
get access to the MP3 file of your new song, they have the file
and so do you. You did not lose the song. What you may have lost
is the opportunity to sell the song to that person or to the
people with whom they "share" the file. We should not be
indifferent to this kind of loss; it is a serious concern. But
the fact that a new technology brings economic benefits as well
as economic harm to the creation, distribution, and sale of
intellectual property products means that we should pause before
increasing the level of rights, changing the architecture of our
communications networks, creating new crimes, and so on.
30
Remember, many of the things that the content industries were
concerned about on the Internet were already illegal, already
subject to suit and prosecution. The question is not whether the
Internet should be an intellectual property-free zone; it should
not be, is not, and never was. The question is whether, when the
content industries come asking for additional or new rights, for
new penalties, for the criminalization of certain types of
technology, we should take into account the gains that the
Internet has brought them, as well as the costs, before we
accede to their requests. The answer, of course, is that we
should. Sadly, we did not. This does not mean that all of the
content industries' attempts to strengthen the law are wrong and
unnecessary. It means that we do not know whether they are or
not.
31
There is a fairly solid tradition in intellectual property
policy of what I call "20/20 downside" vision. All of the
threats posed by any new technology--the player piano, the
jukebox, the photocopier, the VCR, the Internet--are seen with
extraordinary clarity. The opportunities, however, particularly
those which involve changing a business model or restructuring a
market, are dismissed as phantoms. The downside dominates the
field, the upside is invisible. The story of video recorders is
the best-known example. When video recorders--another technology
promising cheaper copying--first appeared, the reaction of movie
studios was one of horror. Their business plans relied upon
showing movies in theaters and then licensing them to television
stations. VCRs and Betamaxes fit nowhere in this plan; they were
seen merely as copyright violation devices. Hollywood tried to
have them taxed to pay for the losses that would be caused.
Their assumption? Cheaper copying demands stronger rights.
32
Having lost that battle, the movie studios tried to have the
manufacturers of the recording devices found liable for
contributory copyright infringement; liable, in other words, for
assisting the copyright violations that could be carried out by
the owners of Sony Betamaxes. This, of course, was exactly the
same legal claim that would be made in the Napster case. In the
Sony case, however, the movie companies lost. The Supreme Court
said that recording of TV programs to "time-shift" them to a
more convenient hour was a fair use.17 The movie studios' claims
were rejected.
33
Freed from the threat of liability, the price of video recorders
continued to fall. They flooded consumers' houses at a speed
unparalleled until the arrival of the World Wide Web. All these
boxes sitting by TVs now cried out for content, content that was
provided by an emerging video rental market. Until the triumph
of DVDs, the videocassette rental market made up more than 50
percent of the movie industry's revenues.18 Were losses caused
by video recorders? To be sure. Some people who might have gone
to see a movie in a theater because the TV schedule was
inconvenient could instead record the show and watch it later.
Videos could even be shared with friends and families--tattered
copies of Disney movies recorded from some cable show could be
passed on to siblings whose kids have reached the appropriate
age. VCRs were also used for copying that was clearly
illicit--large-scale duplication and sale of movies by someone
other than the rights holder. A cheaper copying technology
definitely caused losses. But it also provided substantial
gains, gains that far outweighed the losses. Ironically, had the
movie companies "won" in the Sony case, they might now be worse
off.
34
The Sony story provides us with some useful lessons--first, this
20/20 downside vision is a poor guide to copyright policy. Under
its sway, some companies will invariably equate greater control
with profit and cheaper copying with loss. They will conclude,
sometimes rightly, that their very existence is threatened, and,
sometimes wrongly, that the threat is to innovation and culture
itself rather than to their particular way of delivering it.
They will turn to the legislature and the courts for guarantees
that they can go on doing business in the old familiar ways.
Normally, the marketplace is supposed to provide correctives to
this kind of myopia. Upstart companies, not bound by the habits
of the last generation, are supposed to move nimbly to harvest
the benefits from the new technology and to outcompete the
lumbering dinosaurs. In certain situations, though, competition
will not work:
35
* if the dinosaurs are a cartel strong enough to squelch
competition;
* if they have enlisted the state to make the threatening
technology illegal, describing it as a predatory encroachment on
the "rights" of the old guard rather than aggressive
competition;
* if ingrained prejudices are simply so strong that the
potential business benefits take years to become apparent; or
* if the market has "locked in" on a dominant standard--a
technology or an operating system, say--to which new market
entrants do not have legal access.
36
In those situations, markets cannot be counted on to self-
correct. Unfortunately, and this is a key point, intellectual
property policy frequently deals with controversies in which all
of these conditions hold true.
37
Let me repeat this point, because it is one of the most
important ones in this book. To a political scientist or market
analyst, the conditions I have just described sound like a
rarely seen perfect storm of legislative and market dysfunction.
To an intellectual property scholar, they sound like business as
usual.
38
In the case of the VCR wars, none of these factors obtained. The
state refused to step in to aid the movie companies by
criminalizing the new technology. There were equally powerful
companies on the other side of the issue (the consumer
electronics companies selling VCRs) who saw this new market as a
natural extension of a familiar existing market--audio recorders.
There was no dominant proprietary technological standard
controlled by the threatened industry that could be used to shut
down any threats to their business model. The market was allowed
to develop and evolve without premature legal intervention or
proprietary technological lockout. Thus we know in this case
that the movie companies were wrong, that their claims of
impending doom from cheap copies were completely mistaken. The
public and, ironically, the industry itself benefited as a
result. But the Sony case is the exception rather than the rule.
That is why it is so important. If competition and change can be
forbidden, we will get relatively few cases that disprove the
logic that cheaper copying must always mean stronger rights. The
"natural experiments" will never be allowed to happen. They will
be squelched by those who see only threat in the technologies
that allow cheaper copies and who can persuade legislators or
judges to see the world their way. The story line I describe
here, the Internet Threat, will become the conventional wisdom.
In the process, it will make it much less likely that we will
have the evidence needed to refute it.
39
The Holes Matter as Much as the Cheese
40
The Sony case is important in another way. The Supreme Court's
decision turned on the judgment that it was a "fair use" under
U.S. copyright law for consumers to record television programs
for time-shifting purposes. Since fair use comes up numerous
times in this book, it is worth pausing for a moment to explain
what it is.
41
The content industries like to portray fair use as a narrow and
grudging defense against an otherwise valid case for copyright
infringement--as if the claim were, "Yes, I trespassed on your
land, which was wrong, I admit. But I was starving and looking
for food. Please give me a break." This is simply inaccurate.
True, fair use is asserted as "an affirmative defense"; that is
the way it is brought up in a copyright case. But in U.S. law,
fair uses are stated quite clearly to be limitations on the
exclusive rights of the copyright holder--uses that were never
within the copyright holder's power to prohibit. The defense is
not "I trespassed on your land, but I was starving." It is "I
did not trespass on your land. I walked on the public road that
runs through it, a road you never owned in the first place."
When society hands out the right to the copyright holder, it
carves out certain areas of use and refuses to hand over control
of them. Again, remember the Jefferson Warning. This is not a
presumptively absolute property right. It is a conditional grant
of a limited and temporary monopoly. One cannot start from the
presumption that the rights holder has absolute rights over all
possible uses and therefore that any time a citizen makes use of
the work in any way, the rights holder is entitled to get paid
or to claim "piracy" if he does not get paid. Under the sway of
the story line I called the Internet Threat, legislators have
lost sight of this point.
42
So what is "fair use"? When I am asked this question by
nonlawyers, I offer to show them the actual provision in the
copyright act. They recoil, clearly imagining they are about to
be shown something the size and complexity of the tax code. Here
is the statutory fair use provision in its entirety:
43
Sec. 107. - Limitations on exclusive rights: Fair use
44
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered
shall include--
45
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
46
The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon consideration
of all the above factors.
47
"But this seems quite sensible," people often say, as though
they had expected both Byzantine complexity and manifest
irrationality. (Perhaps they have had some experience with legal
matters after all.) The ones who think about it a little longer
realize that these factors cannot be mechanically applied. Look
at factor 3, for example. Someone who is making a parody
frequently needs to take large chunks of the parodied work. That
is the nature of a parody, after all. They might then sell the
parody, thus also getting into trouble with factor 1. And what
about factor 4? Someone might quote big chunks of my book in a
devastating review that ruined any chance the book had of
selling well. Come to think of it, even a parody might have a
negative effect on the "potential market" for the parodied work.
But surely those uses would still be "fair"? (In both instances,
the Supreme Court agrees that they are fair uses.)
48
In coming up with these hypothetical problem cases, the
copyright novice is probably closer to having a good
understanding of the purpose of fair use than many people who
have studied it for years. In fact, the novice's questions shed
light on all of the exceptions, limitations, and defenses to
proprietary rights--the holes in the cheese of intellectual
property. The scholar's urge is to find one theory that explains
all the possible applications of the fair use doctrine, to
arrange all of the cases like targets and shoot a single arrow
through all of them. Perhaps fair use is designed to reduce the
difficulty of clearing rights when it would be uneconomical or
impossibly complex to do so: to reduce the paperwork, hassle,
delay, ignorance, and aggravation that economists refer to under
the sanguine name of "transaction costs."19 (Though the idea
that fair use is about transaction costs hardly explains some of
the types of fair use we care most about--the rights to parody,
to criticize, to reverse engineer.) Or perhaps fair use allows
the rights of a transformative author to be trumped only by a
second transformative author, who is building on the first--the
parodist, reviewer, collage artist, or what have you.20 (Then
again, photocopying for classroom use does not sound very
"transformative.") Could fair use be dictated by the
Constitution or by international free speech guarantees? In this
view, fair use provides a safety valve that allows copyright to
coexist with the First Amendment, property rights over speech to
coexist with freedom of expression.21 After all, it is not
entirely obvious how it could be constitutional to forbid me, in
the name of a federal law, from translating Mein Kampf in order
to warn of the dangers of fascism or parodying some piece of art
to subversive effect.
49
Each of these ideas about fair use has much to recommend it, as
do the many other grand theories that have been offered to
explain the puzzle. And therein lies the problem.
50
Intellectual property is a brilliant social invention which
presents us with great benefits but also with a multitude of
dangers:
51
1. the danger that the monopoly is unnecessary to produce the
innovation, or that it is broader or lasts for longer than is
necessary to encourage future production;
2. that overly broad rights will chill speech, criticism, or
scientific progress;
3. that it will restrict access in ways that discourage "follow-
on" innovation;
4. that it will lead to industry concentration in a way that
hurts consumers or citizens while being less subject to
antitrust regulation precisely because the monopoly or oligopoly
rests on intellectual property rights;
5. that it will establish strong "network effects" which cause
the market to tip over to some inefficient technology; and
6. that it will give the rights holder control over some
technology outside the range of the monopoly but closely linked
to it.
52
The list of dangers goes on and on, and so does the list of
exceptions, limitations, and restraints designed to prevent
them. We restrict the length of intellectual property rights.
(At least, we used to. The framers thought it so important to do
so that they put the need to have a limited term in the
Constitution itself; nevertheless both Congress and the Supreme
Court seem to have given up on that one.) We restrict the scope
of intellectual property rights, so that they cannot cover raw
facts or general ideas, only the range of innovation and
expression in between. (At least, we used to. Developments in
database protection, gene patents, and business method patents
are clearly eroding those walls.) As with fair use, we impose
limitations on the rights when we hand them out in the first
place. The exclusive right conferred by copyright does not
include the right to prevent criticism, parody, classroom
copying, decompilation of computer programs, and so on. (Though
as the next chapter shows, a number of recent legal changes mean
that the practical ability to exercise fair use rights is
seriously threatened.)
53
These limitations on intellectual property do not fit a single
theory, unless that theory is "avoiding the multiple and
evolving dangers of intellectual property itself." Even a single
limitation such as fair use clearly responds to many different
concerns about the dangers of intellectual property rights.
Indeed it will evolve to fit new circumstances. When computer
programs were first clearly covered by copyright law, software
engineers wondered if this would cripple the industry. Why?
Anyone who wishes to compete with a dominant program needs to
"decompile" it in order to make their program "interoperable,"
or simply better. For example, a new word processing program, no
matter how good, would be dead on arrival unless it could read
all the files people had created with the old, dominant word
processing software. But to do this, the engineers at the
upstart company would have to take apart their competitor's
program. In the process they would have to create temporary
copies of the old program, even though the final product--the hot
new software--would be completely different from the old. Would
this be a violation of copyright law?
54
In a series of remarkable and far-seeing cases involving such
issues, the courts said no.22 "Decompilation" was fair use. The
law of fair use had evolved in the context of expressive,
nonfunctional, stand-alone works such as books, poems, songs.
Now it was being applied to a functional product whose economics
depended strongly on "network effects"--many types of programs
are useful only if they are widely used. Without
interoperability, we could never take our existing documents or
spreadsheets or datasets and move to a new program, even if it
was better. One program would not be able to read the files
created by another. It would be as if language itself had been
copyrighted. To have said that the incidental copies created in
the process of decompiling software were actually infringements
of copyright would have turned the law on its head because of a
technological accident (you needed temporarily to "copy" the
programs in order to understand how they worked and make yours
work with them) and a legal accident (copyright was now being
used to regulate functional articles of commerce: "machines"
made of binary code). The difference between copying and
reading, or copying and understanding, had changed because of
the technology. The context had changed because the law was
being stretched to cover new types of products, whose economics
were very different from those of novels. Rather than let the
dominant software companies use copyright to stop others from
making interoperable software, the courts used an escape
hatch--fair use--to prevent that danger and to uphold the basic
goal of copyright: encouraging progress in science and the
useful arts.
55
This long story is told to make a simple point. The variegated
and evolving limitations on intellectual property are as
important as the rights they constrain, curtail, and define. The
holes matter as much as the cheese.
56
What does this have to do with the Sony case? In that case,
remember, the Supreme Court had said that copying TV shows in
order to time-shift was fair use. The Court could simply have
stopped there. It could have said, "since most of what consumers
do is legal, there can be no claim of contributory or vicarious
infringement. Sony is not contributing to infringement since
consumers are not infringing copyright by copying shows in the
first place." Interestingly, though this is the heart of the
ruling, the court went further. It quoted some seemingly
unrelated patent law doctrine on contributory infringement: "A
finding of contributory infringement does not, of course, remove
the article from the market altogether; it does, however, give
the patentee effective control over the sale of that item.
Indeed, a finding of contributory infringement is normally the
functional equivalent of holding that the disputed article is
within the monopoly granted to the patentee." Clearly, the
Justices were concerned that, by using copyright law, the movie
studios could actually get control of a new technology.
57
The fact that the Court expressed this concern through an
analogy to patent law was, at first sight, fairly surprising.
Courts do not normally look at copyrights in quite the same way
as they look at patents. For one thing, patent rights are
stronger, though they are harder to obtain and last for a
shorter period of time. For another, while courts often express
concern about the dangers of a patent-driven monopoly over a
particular technology, it is strange to see that concern in the
context of copyright law. An unnecessary monopoly over a plow or
a grain elevator may, as Jefferson pointed out, slow
technological development. But a monopoly over Snow White or
"Ode on a Grecian Urn"? We do not normally think of rights over
expression (the realm of copyright) threatening to sweep within
their ambit an entire new technological invention (the realm of
patent).
58
But in the Sony case, the Supreme Court quite clearly saw that,
in a world where technological developments made copying easier,
the idea of contributory infringement in copyright could be used
to suppress or control entire technologies that seemed, in the
logic of 20/20 downside vision, to pose a threat to the
copyright holder. Indeed, in some sense, the logic behind the
Internet Threat--"cheaper copying requires greater
control"--demands this result, though the Sony case antedates the
World Wide Web by a considerable time. If it is cheap copying
itself that poses the threat, then the content owners will
increasingly move to gain control over the technologies of cheap
copying, using copyright as their stalking horse. That is why
the Sony Court went beyond the simple ruling on fair use to
explain the consequences of the movie companies' claim. In a
footnote (the place where judges often bury their most trenchant
asides) the Court was almost snide:
59
It seems extraordinary to suggest that the Copyright Act
confers upon all copyright owners collectively, much less the
two respondents in this case, the exclusive right to distribute
VTR's [Video Tape Recorders] simply because they may be used to
infringe copyrights. That, however, is the logical implication
of their claim. The request for an injunction below indicates
that respondents seek, in effect, to declare VTR's contraband.
Their suggestion in this Court that a continuing royalty
pursuant to a judicially created compulsory license would be an
acceptable remedy merely indicates that respondents, for their
part, would be willing to license their claimed monopoly
interest in VTR's to Sony in return for a royalty.23
60
The real heart of the Sony case is not that "time-shifting" of
TV programs is fair use. It is an altogether deeper principle
with implications for all of the holes in the intellectual
property cheese. The Sony Court declared that because video
recorders were capable of substantial noninfringing uses, the
manufacturers of those devices were not guilty of contributory
infringement. If the rights of copyright holders were absolute,
if they had the authority to prohibit any activity that appeared
to pose a threat to their current business model, then it is
quite possible that video recorders would have been guilty of
contributory infringement. It is because we have, and need,
multiple exceptions and limitations on intellectual property
that the Supreme Court was able to resist the claim that
copyright itself forbids technologies of cheaper copying. To put
it another way, without a robust set of exceptions and
limitations on copyright, the idea that cheaper copying requires
greater control will inexorably drive us toward the position
that the technologies of cheaper reproduction must be put under
the governance of copyright holders.
61
Thus we have a corollary to the Jefferson Warning--call it the
Sony Axiom: cheaper copying makes the limitations on copyright
more rather than less important. Without those limitations,
copyright law will bloat and metastasize into a claim of
monopoly, or at least control, over the very architectures of
our communications technology. And that is exactly where the
logic of the Internet Threat is taking us today.
62
FROM NAPSTER TO GROKSTER
63
Seventeen years after the Sony decision, another court had to
deal with a suit by outraged copyright holders against the
creators of a technology that allowed individuals to copy
material cheaply and easily. The suit was called A&M Records v.
Napster.24 Napster was a "peer-to-peer" file sharing system. The
files were not kept on some huge central server. Instead, there
was a central directory--think of a telephone directory--which
contained a constantly updated list of the addresses of
individual computers and the files they contained. Anyone who
had the software could query the central registry to find a
file's location and then establish a direct computer-to-computer
connection--anywhere in the world--with the person who had the
file they desired. This decentralized design meant the system
was extremely "robust," very fast, and of nearly infinite
capacity. Using this technology, tens of millions of people
around the world were "sharing" music, an activity which record
companies quite understandably viewed as simple theft. In fact,
it would be hard to think of a situation that illustrated the
Internet Threat better. The case ended up in front of the U.S.
Court of Appeals for the Ninth Circuit, which hears cases in an
area that includes California and thus has decided a lot of
copyright cases over the years.
64
There was an irony here. When the Supreme Court decided the Sony
case, it was on appeal from the Ninth Circuit Court of Appeals.
Sony, with its rule about reproductive technologies with
substantial noninfringing uses, reversed the appeals court
decision. The Supreme Court was, in effect, telling the Ninth
Circuit that it was wrong, that its ruling would have required
the "extraordinary" (legal shorthand for "stupid") conclusion
that copyright law gave copyright holders a veto on new
technology. In the process, the Supreme Court told the Ninth
Circuit that it also did not understand the law of fair use, or
the freedom that should be given to individuals to make
"noncommercial" private copies. The identities of the judges had
changed, but now, seventeen years later, the same Circuit Court
had another high-profile case on exactly the same issues. In
case any of the judges might have missed this irony, it took
David Boies, the lawyer for Napster, about ninety seconds to
remind them in his oral argument. "This court," he said, adding
as if in afterthought, "in the decision that the Supreme Court
ultimately reversed in Sony. . . ."25 To the laypeople in the
audience it probably just seemed like another piece of legal
droning. But to the lawyers in the room the message was quite
clear. "The last time you got a case about a major new
technology of consumer reproduction, you really screwed it up.
Hope you can do better this time." The judges' mouths
quirked--not entirely in pleasure. The point had been registered.
65
Think for a moment of the dilemma in which the court had been
placed. On the one hand, you had tens of millions of people
"sharing" music files and Napster was the service that allowed
them to do it. If this was not contributory copyright
infringement, what was? On the other hand, Napster seemed to fit
very nicely under the rule announced in the Sony case.
66
The argument went like this. Like the VCR, the Napster service
had substantial noninfringing uses. It allowed bands to expose
their music to the world through the "New Artists" program. It
made it easy to share music which was no longer under copyright.
These uses clearly do not infringe copyright. There were also
the claims that it permitted "space-shifting" by consumers who
already owned the music or "sampling" of music by listeners as
they decided whether or not to buy. One could argue that space-
shifting and sampling were fair use (though in the end the court
disagreed). But since we have two clear noninfringing uses, the
technology obviously does have substantial uses that do not
violate copyright. Thus, Napster cannot be liable as a
contributory infringer, just as Sony could not be liable for the
Betamax. Supreme Court precedent covers this case. The Ninth
Circuit is bound by that precedent. All the judges can do, goes
the argument, is to apply the words of the rule laid down in
Sony, say that Napster wins, and move on to the next case. If
Congress wants to make services like Napster illegal, it is
going to have to pass a new law. The boundaries of the Sony rule
are clear and Napster fits within them. (Of course, the last
point is subject to argument, but the argument for Napster on
this issue was a good one. Not overwhelming--there were more
noninfringing uses in the Sony case because the normal way
consumers used the technology in question was found to be a fair
use--but certainly powerful.)
67
A more daring strategy was to suggest that all the copying done
over Napster was fair use, or at least presumptively fair. In
Sony, the Supreme Court had said that the law presumes that
noncommercial private copying--such as taping a show at home for
future viewing--is a fair use. This presumption shifts the burden
to the copyright holder to prove that the practice caused harm
to them. Copying on Napster was done by private individuals. No
money was exchanged. Does this mean we must presume it was fair
use and require the music companies and songwriters to show
clear evidence of "market harm" if they want to convince us
otherwise?
68
It sounds as though proving market harm would be pretty easy.
How could millions of people exchanging hundreds of millions of
songs not be causing harm? But it is more complicated. Remember
the Jefferson Warning. We are not talking about swiping shoes
from a shoe store. There one merely has to show the theft to
prove the loss. By contrast, music files are copied without
being "taken" from their owner. The record companies would have
to show harm to their market--the people downloading who do not
purchase music because it is available for free. Those who
download, but would not have purchased, do not count. And we
have to balance those who are deterred from purchasing against
those who purchase a whole CD because they are exposed to new
music through Napster. One very interesting empirical study on
the subject indicates that the result is a wash, with hardly any
measurable effect on sales; the overall drop in CD purchases
results from larger macroeconomic issues.26 This study, however,
has been subject to detailed methodological criticism.27 Another
study shows a weak effect on sales, though rather woundingly it
seems to suggest that the result is economically efficient--fewer
people end up with music they do not like.28 Other studies, by
contrast, support the record company position--suggesting that
illicit file sharing does indeed undercut sales of both CDs and
authorized digital downloads.29 Given the complexities of the
issue, the record companies did not want to engage in a war of
dueling empirical studies.
69
So, if Napster's users were not infringing copyright law in the
first place--at least until the record companies came up with
convincing evidence of market harm--because their copying was
noncommercial, then Napster could hardly be guilty of
contributory infringement, could it? There would be no
infringement at all!
70
You could see Mr. Boies's arguments as simple equations between
the cases.
71
* Noninfringing uses such as recording public domain films and
"time-shifting" programs are equivalent to noninfringing uses
such as the New Artists program or sharing public domain music
(and maybe "space-shifting" one's own music?); or
* Private noncommercial videotaping is equivalent to private
noncommercial file sharing. Both are presumptively fair uses.
* Either way, Sony=Napster and Napster wins.
72
Napster did not win, of course, though when the judges handed
down their decision it was clear they had been paying attention
to Mr. Boies, at least enough to make them very wary of
tampering with Sony. They claimed that they were upholding that
case, but that Napster could be liable anyway. How? Because
there was enough evidence here to show that the controllers of
Napster had "actual knowledge that specific infringing material
is available using its system, that it could block access to the
system by suppliers of the infringing material, and that it
failed to remove the material." There was indeed evidence that
Napster knew how its system was being used--an embarrassing
amount of it, including early memos saying that users will want
anonymity because they are trading in "pirated music." Then
there were nasty circumstantial details, like the thousands of
infringing songs on the hard drive of one particular Napster
employee--the compliance officer tasked with enforcing the
Digital Millennium Copyright Act! (The recording company lawyers
waxed wonderfully sarcastic about that.)
73
But despite the ludicrously dirty hands of Napster as a company,
lawyers could see that the appeals court was making a lot of new
law as it struggled to find a way to uphold Sony while still
making Napster liable. The court's ruling sounded reasonable and
clear, something that would only strike at bad actors while
paying heed to the Sony Axiom and the assurance of safety that
the rule in Sony had provided to technology developers for the
previous twenty years. But hard cases make bad law. In order to
accomplish this piece of legal legerdemain, the court had to
alter or reinterpret the law in ways that are disturbing.
74
The first thing the court did was to reject the argument that
the "sharing" was private and noncommercial. As to the idea that
it is not private, fair enough. Sharing one's music with fifty-
four million people does not sound that private, even if it is
done for private ends, in private spaces. What about
noncommercial? Embracing some earlier rulings on the subject,
the court said a use was "commercial" if you got for nothing
something for which you would otherwise have to pay. On the
surface this sounds both clever and reasonable--a way to
differentiate home taping from global file sharing--but the
argument quickly begins to unravel. True, the Betamax owners
could get TV shows for free just by watching at the regular
time. But they could not get a copy of the show for free at the
moment they wanted to watch it. That was why they taped. One
could even argue that Napster users would have access to most
songs over the radio for free. But lawyers' quibbling about
which way the rule cuts in this case is not the point. Instead,
we need to focus on the change in the definition of
"commercial," because it illustrates a wider shift.
75
Remember, a finding that a use is "noncommercial" makes it more
likely that a court will find it to be legal--to be a fair use.
The old test focused mainly on whether the motive for the
copying was to make money. (A different stage of the inquiry
concerned whether there was harm to the copyright holder's
market.) The Napster court's test concentrates on whether the
person consuming the copy got something for free. Instead of
focusing on the fact that the person making the copy is not
making money out of it--think of a professor making electronic
copies of articles for his students to download--it focuses on
the presumptively dirty hands of those who are "getting
something for nothing." But lots of copyright law is about
"getting something for nothing."
76
To put it differently, one central goal of copyright is to limit
the monopoly given to the copyright owner so that he or she
cannot force citizens to pay for every single type of use. The
design of the law itself is supposed to facilitate that. When
"getting something for free" comes to equal "commercial" in the
analysis of fair use, things are dangerously out of balance.
Think back to Jefferson's analogy. If I light my candle at
yours, am I getting fire for free, when otherwise I would have
had to pay for matches? Does that make it a "commercial" act?
77
Having dismissed the claim that this was noncommercial sharing,
the court then reinterpreted the Sony decision to allow
liability when there was "actual knowledge" of specific
copyright violations, an ability to block access by infringers,
and a failure to do so. Neither side was entirely happy with
this ruling, but the record companies believed--rightly--that it
would allow them effectively to shut Napster down. Yet the
Napster ruling only postponed the issue. The next set of file
sharing services to be sued after Napster were even more
decentralized peer-to-peer systems; the Napster court's
reinterpretation of Sony would not be able to reach them.
78
The peer-to-peer file sharing service called Grokster is a
relatively typical example. Unlike Napster, Grokster had no
central registry. The system was entirely run by the individual
"peer" computers. Because the system was designed this way, the
people who made and distributed the software had no knowledge of
specific infringing files. The users were doing the searching,
indexing, and storing, and Grokster had no ability to control
their behavior. For those reasons, a court of appeals held that
Grokster was not liable. As in Sony, the system had substantial
noninfringing uses. Lots of interesting content was traded on
Grokster with the copyright holder's consent. Other material was
in the public domain. Grokster made money by streaming
advertisements to the users of its software. The movie companies
and record companies saw this as a flagrant, for-profit piracy
ring. Grokster's response was that like the makers of the VCR,
it was simply providing a technology. Its financial interest was
in people using that technology, not in using it for illicit
purposes--though, like the VCR manufacturer, it would profit
either way. The court of appeals agreed. True, the majority of
the material traded on Grokster was illicitly copied, but the
court felt that it could not give the recording or movie
companies control over a technology simply because it allowed
for easier copying, even if most of that copying was illegal. As
I tried to point out in the section on the Sony Axiom, that line
of thought leads to copyright holders having a veto over
technological development.
79
It was at this point that the Supreme Court stepped in. In the
case of MGM v. Grokster,30 the Supreme Court followed the line
of the Napster court, but went even further. The Court created a
new type of contributory copyright infringement--while apparently
denying it was doing so. Grokster and its fellow services were
liable because of three different kinds of evidence that they
had "intended" to induce copyright violation. First, they were
trying "to satisfy a known demand for copyright infringement."
This could be shown by the way that they advertised themselves
as alternatives to the "notorious filesharing service, Napster."
Second, the file sharing services did not try to develop
filtering software to identify and eliminate copyrighted
content--though this alone would not have been enough to make
them liable. Finally, their advertising-supported system clearly
profited by high-intensity use, which they knew was driven in
the most part by illicit copying. This too would not have been
enough by itself, the Court added, but had to be seen in the
context of the whole record of the case.
80
Let me be clear. I wept no tears for Napster, Grokster, and
their ilk. I see no high-minded principle vindicated by middle-
class kids getting access to music they do not want to pay for.
It is difficult to take seriously the sanctimonious preening of
those who cast each junior downloader of corporate rock as a Ché
Guevara, fighting heroically to bring about a new creative
landscape in music. (It is almost as hard to take seriously the
record industry executives who moralistically denounce the
downloading in the name of the poor, suffering artists, when
they preside over a system of contracts with those same artists
that makes feudal indenture look benign.) The file sharing
companies themselves were also pretty unappealing. Many of the
services were bloated with adware and spyware. True, some of
their software engineers started with a dewy-eyed belief that
this was a revolutionary technology that would break the record
companies and usher in a new era of musical creativity. Whether
one agrees or disagrees with them, it is hard--for me at least--to
doubt their sincerity. But even this quality did not last long.
For most of the people involved, the words "stock options"
worked their normal, morally debilitating magic. In internal
company correspondence, attacks on the hypocrisy of the music
companies and defenses of a democratic communications structure
imperceptibly gave way to discussions of "customer base," "user
experience," and "saleable demographics." I care little that
Napster and Grokster--as individual companies--lost their specific
legal battles. There are few heroes in this story. But if we had
to rely on heroes, nothing would ever get done.
81
I do care about the technology behind Napster and Grokster--about
the kind of decentralized system it represents. I also care
about the principle I identified as the Sony Axiom--a principle
that goes far beyond music, peer-to-peer systems, or the
Internet as a whole. The Supreme Court's decision in Grokster
could have been much worse. But it still offers a modest threat
both to that technology and to that axiom.
82
What is so great about peer-to-peer systems? We talk about
"cheap speech" on the Internet, but bandwidth is actually
expensive. If one is talking about music or video files, and one
wishes to speak to many people in a short period of time, one
vital way to have cheap speech is over peer-to-peer networks. If
many of your viewers or listeners are willing to become
broadcasting stations as they watch, you can cheaply reach a
million people in a short period of time with your video of
abuse in Abu Ghraib or your parody of political leaders. You do
not need to rely on a broadcasting station, or even on the
continued existence of entities such as YouTube, which face
their own legal worries. By making your listeners your
distributors, you can quickly reach the same number of ears that
the payola-soaked radio waves allow the record companies to
reach.
83
One need not cheer Grokster. Much of what went on there was
indeed illicit. But there are two key things to understand about
peer-to-peer networks. The first is that they are hard to
police. They have multiple nodes. That is why they work. It
means they will have both infringing and noninfringing uses, and
the noninfringing uses will be centrally connected to our
deepest values of free speech and cultural decentralization.
84
The second feature of peer-to-peer networks is even more basic.
They are networks and thus subject to the laws of network
economics. In short, they only work well if many people use
them. A person who uses a peer-to-peer system that no one else
uses is in the position of the person who owns the only fax
machine in the world. Peer-to-peer networks provide cheap and
unregulable audiovisual or data-heavy "speech" to a mass
audience. And if the past is any guide, those networks will also
carry large amounts of illicit material, just as photocopying
machines (and VCRs) are widely used to violate copyright. The
Grokster case makes it harder, but not impossible, to have
successful, widely used peer-to-peer systems that are not
themselves illicit. If they are widely used, there will be
infringing content. If you try to police them and filter them,
you will know more about that infringing content and thus might
be liable--that was the point of the Napster case. If you do not,
you will be failing to take precautions. That was the point of
the Grokster case. What is a poor peer-to-peer network to do?
Apart from making sure that the last four letters of your
service's name are not "-ster," I am hard-pressed to advise you.
85
A decision does not need to make an activity illegal in order to
impede it. It only needs to make it uncertain. Already, for
example, the free--and so far as I could tell, entirely well-
meaning--service "bonpoo," which allowed you to send large file
attachments to many people at once, has shut down all of its
capabilities except photo transfer. That is simply one trivial
instance of a larger harm. Lots of new communications
technologies will remain undeveloped because of the
uncertainties left by this ruling.
86
My colleague Jennifer Jenkins gave one useful hyperbolic
illustration, drawing on earlier work by the Electronic Frontier
Foundation: if one were launching the iPod today, it is not
clear how it would fare under Grokster's standard. Of course,
there is no danger that the iPod will be challenged. It has
become respectable and the music companies ended up sanctioning
it. But how does it fare if we simply apply the tests laid down
in the Grokster case? There is Apple's "tainted" advertising
campaign, urging users to "Rip, Mix, and Burn." Does this not
suggest complicity, or even intent? There is the fact that the
iPod does not restrict itself solely to proprietary formats
protected by digital rights management. It also allows
uncontrolled MP3 files despite the fact that this format is
"notoriously" used to transfer files against the wishes of the
copyright owner. This, surely, is a "failure to police." And
finally, there is the fact that it would cost about $10,000 to
fill an iPod with songs downloaded from iTunes. Clearly Apple
must be aware that much of the music that fills iPods is
illicitly copied. They are profiting from that fact to drive
demand for the product, just as Grokster was profiting from the
attractions of illicit traffic to drive people to use their
service!
87
No one is going to sue Apple now, of course. In fact,
established players in the marketplace are probably fairly safe
(and have better lawyers). But what if a product as good as the
iPod were being developed now by some upstart company? What if
it were no more and no less likely to be used for infringing
purposes? Would the business plan ever see the light of day? Or
would it be quietly smothered due to legal uncertainty? I have
little sympathy for Grokster the company, but the decision that
doomed it is a bad piece of technology policy.
88
There is a second reason to dislike the Grokster decision.
Despite some of the angst-ridden announcements made when the
decision was handed down, the Supreme Court has not killed peer-
to-peer systems. The concept is far too well entrenched. But the
decision will mean that there are fewer of them that are widely
used, easy to operate, and made by responsible and reputable
people you can trust. This will probably lessen, but not end,
illicit copying online. But that effect comes with a price--it
makes our communications architecture a little bit more tightly
controlled, reducing but not removing the availability of
methods of mass distribution that are entirely outside
centralized public or private control. It is another--relatively
small--step toward an Internet that is more like cable TV or
iTunes, a one-way flow of approved content. One might decide
that such a price was well worth paying. But where is the
limiting principle or end point of the logic that led to it?
89
There is no provision in U.S. statutory copyright law that
imposes liability for contributory or vicarious infringement.
None. The patent statute has such a provision; not the Copyright
Act. The courts have simply made the scheme up themselves. Then
they made up limitations--such as Sony--in order to rein it in. In
Grokster, the Supreme Court went further. It made up a new type
of "inducement" liability. Fine. As I have tried to indicate
here, the decision is not as dreadful as it is reputed to be.
But so long as there is any unregulated space in our
communications network, some portion of it will have illicitly
copied content on it. The more the system is free of central
control, the more it is open to use by any citizen, the cheaper
it gets--all very desirable characteristics--the more illicit
content there will be. That is the premise of the Internet
Threat--the belief that control must rise as copying costs fall.
I have tried here to suggest an alternative interpretation, the
Sony Axiom: without a strong internal set of limitations over
copyright, cheaper copying and the logic of the Internet Threat
will always drive us toward giving control over our
communications architecture to the content industries.
90
There was one particularly striking moment in the Napster oral
argument. The lawyer for the recording companies was arguing
that Napster was illegal. The judges interrupted, as they often
do, and there was a back-and-forth debate about the likely reach
of any ruling that would shut down Napster. "I am not trying to
say the Internet is illegal," said the lawyer. There was a pause
as everyone weighed those words carefully.
91
My response would be "Really? Why not?" The logic of the
Internet Threat leads to the position that a network is either
controlled or illegal. The better and cheaper the network, the
tighter the control needed. The Internet itself could have been
designed differently. There could have been more centralized
control, filtering of content, a design based on one-way
transmission, closed protocols that allow users only a limited
number of options. Indeed there were such systems--the national
French Minitel system is an example. The Internet represents the
opposite set of choices--freedom from centralized control,
absence of intervention. In a famous article, Saltzer, Reed, and
Clark provided the argument that an "end-to-end" network that is
"dumb" and leaves processing to the "ends"--the smart terminals
at either end of the wires--will be stable and robust.31 But it
will also be remarkably uncontrolled and it will lower global
copying costs close to zero for digital content. It is that
principle that has made it successful. To put it tersely: the
logic of the Internet Threat runs in exactly the opposite
direction to the Internet itself. The logic of control is not
the logic of the Net.
92
Here is one last thought experiment. Apply the same test I
suggested for the iPod to the Internet itself.32 Imagine you
knew nothing of the Net. (Those of you who are over twenty-five
may actually be able to remember when you knew nothing of the
Net.) Imagine that you are sitting in a room somewhere
discussing--perhaps with a group of government bureaucrats or
some policy analysts from the Commerce Department--whether to
develop this particular network. The scientists are
enthusiastic. They talk of robustness and dumb networks with
smart terminals. They talk of TCP/IP and HTML and decentralized
systems that run on open protocols, so that anyone can connect
to this network and use it any way they want to. You, of course,
know nothing about the truly astounding outburst of creativity
and communication that would actually flower on such a system,
that would flower precisely because it is so open and no one
country or company controls it or the protocols that run it. You
do not know that millions of people worldwide will assemble the
greatest factual reference work the world has ever seen on this
network--often providing their information for free out of some
bizarre love of sharing. You do not know about Amazon.com or
Hotornot.com or the newspapers of the world online, or search
engines, automatic page translation, plug-ins, or browsers. You
cannot imagine free or open-source software being assembled by
thousands of programmers worldwide. E-mail is only a dimly
understood phenomenon to you. Teenagers in your world have never
heard of instant messaging--a nostalgic thought.
93
As the scientists talk, it becomes clear that they are
describing a system without centralized direction or policing.
Imagine that your decision is framed by the logic of control I
have described in this chapter, by the fears that the content
industry has had for at least the last thirty years--by the logic
of the suit they brought in Sony. Imagine, in other words, that
we make the up-or-down decision to develop the Internet based on
the values and fears that our copyright policy now exhibits, and
that the content industries have exhibited for thirty years.
There is no way, no way at all, that a network like it would
ever be developed. It would be strangled at birth. You would be
told by the lawyers and policy wonks that it would be a haven
for piracy and illegality. (And it would be, of course--though it
would also be much, much more.) You would be told that the
system needed to be designed to be safe for commerce or it would
never attract investment, that it would need to be controlled
and centralized for it to be reliable, that it would need to be
monitored to stop it being a hotbed of crime. With the copyright
lawyers in the room, you would end up designing something that
looked like cable TV or Minitel. The Internet would never get
off the ground.
94
The Internet is safe now, of course, because it developed so
fast that it was a reality before people had time to be afraid
of it. But it should give us pause that if we had our current
guiding set of policy goals in place, our assumption that
cheaper copying means we need greater regulation, we would never
have allowed it to flourish. As Jessica Litman points out, we
are increasingly making our decisions about technology and
communications policy inside copyright law. We are doing so
according to the logic of control that I have sketched out in
this chapter. But the logic of control is a partial logic. It
blinds us to certain possibilities, ones that have huge and
proven potential--look at the Internet.
95
The law has not been entirely one-sided, however. The Sony case
drew a line in the sand which promised to halt the inevitable
drift toward greater and greater control over communications
technology by content owners. It turned out the heavens did not
fall. Indeed, the content companies thrived. Perhaps that line
was drawn in the wrong place; reasonable people can disagree
about that. But Grokster smudges the line without drawing a
clear new one. If that new line is drawn according to the logic
of control, what technologies will we never see? Could they be
technologies that would transform our lives as unimaginably as
the Internet has since 1995?
96
I have described the story line--the cluster of metaphors and
images and concerns--that pervades our copyright policy. I
labeled it "the Internet Threat." In the next chapter, I discuss
an alternative story line, a different way of understanding our
current policies. The subject of that story line is the best-
known example of contemporary attempts to control the digital
world, the Digital Millennium Copyright Act or DMCA.
Chapter 5: The Farmers' Tale: An Allegory
1
Imagine that a bustling group of colonists has just moved into a
new area, a huge, unexplored plain. (Again, assume the native
inhabitants have conveniently disappeared.) Some of the
colonists want to farm just as they always did in the old
country. "Good fences make good neighbors" is their motto.
Others, inspired by the wide-open spaces around them, declare
that this new land needs new ways. They want to let their cattle
roam as they will; their slogan is "Protect the open range." In
practice, the eventual result is a mixture of the two regimes.
Fields under cultivation can be walled off but there is a right
of passage through the farmers' lands for all who want it, so
long as no damage is done. This means travelers do not need to
make costly and inefficient detours around each farm. In the
long run, these "public roads" actually increase the value of
the private property through which they pass. They also let the
ranchers move their cattle around from one area of pasture to
another. The ranchers become strong proponents of "public, open
highways" (though some people muse darkly that they do very well
out of that rule). Still, most people want open highways; the
system seems to work pretty well, in fact.
2
Two new technologies are introduced. First, the automobile is
developed. Now thieves can drive through the farmers' fields,
stop quickly to grab some corn or a lettuce, and be back on the
highway before they can be caught. Of course, the farmers' costs
have also fallen dramatically; now they have tractors to work
their fields and trucks to take their products to distant
markets. The farmers do not dwell on the benefits of the new
technology, however. Understandably, they focus more on the
profits they could reap if they could get all the advantages of
the technology and none of its costs. They demand new legal
protections aimed at producing that result. "What's good for
agriculture is good for the nation," they say. But now comes the
second technological shock--the development of barbed wire. The
cost of erecting impassable barriers falls dramatically. The
farmers begin to see the possibility of enclosing all of their
land, roads and fields alike. This will help them protect their
crops from pilfering, but it will also allow them to charge
people for opening the gates in their fences--even the gates on
public roads. That is a nice extra revenue stream which will,
the farmers say, "help encourage agriculture." After all, more
fences mean more money for farmers, and more money for farmers
means they can invest in new methods of farming, which will mean
everyone is better off, right?
3
What is to be done? Assume that each side presents its case to
the legislature. There are three obvious possibilities:
4
First, the legislature can simply tell each side to work it out
amongst themselves. The law will continue to forbid trespass,
but we are neither going to make it a crime to put up a barbed
wire fence if it blocks legitimate public rights of way nor to
make it a crime to cut a barbed wire fence, unless the fence
cutter is also a trespasser. The farmers can attempt to enclose
land by putting barbed wire around it. Ranchers and drivers can
legally cut those fences when they are blocking public rights of
way. Trespass remains trespass, nothing more.
5
Second, the legislature could heed the ranchers' fears that
barbed wire will permit the farmers not only to protect their
own land, but to rob the public of its existing rights of way,
turning open highways into toll roads. (The ranchers, of course,
are more concerned with the rights of cattle than people, but
most drivers agree with them.) As a result, the state could
forbid the erection of a barbed wire fence where it might block
a public right of way--classing it as a kind of theft, perhaps.
6
Third, the legislature could take the farmers' side. Theorizing
that this new automobile technology presents "a terrible threat
to agriculture, because of rampant crop piracy," the state could
go beyond the existing law of trespass and make it a crime to
cut barbed wire fences wherever you find them (even if the
fences are enclosing public lands as well as private, or
blocking public roads). To back up its command, it could get
into the technology regulation business--making the manufacture
or possession of wire cutters illegal.
7
The state picks option three. Wire cutting becomes a crime, wire
cutters are classed with lock picks and other "criminals'
tools," and the people who make wire cutters are told their
business is illegal. A storm of protest arises in the rural
driving community. The wire cutter manufacturers claim that
their products have lots of legitimate uses. All to no avail:
the farmers press on. They have two new demands. Cars should be
fitted with mandatory radio beacons and highways put under
constant state surveillance in order to deter crop theft. In
addition, car trunks should be redesigned so they can hold
less--just in case the owner plans to load them up with purloined
produce. Civil libertarians unite with car manufacturers to
attack the plan. The farmers declare that the car manufacturers
are only interested in making money from potential thieves and
that the civil libertarians are Nervous Nellies: no one has
anything to fear except the criminals. "What's good for
agriculture is good for the nation," they announce again. As the
barbed wire gates swing shut across the highways of the region,
the legislature heads back into session.
8
BETWEEN PARANOIA
AND REALITY: THE DMCA
9
I have argued that confusing intellectual property with physical
property is dangerous. I stand by that argument. Yet analogies
to physical property are powerful. It is inevitable that we
attempt to explain new phenomena by comparing them to material
with which we are more familiar. While the content companies'
tales of "theft" and "piracy" are the most prevalent, they are
by no means the only such analogy one can make. In this chapter
I try to prove that point.
10
The Farmers' Tale is my allegorical attempt to explain the
struggle over the single most controversial piece of
intellectual property legislation in recent years, the Digital
Millennium Copyright Act, or DMCA.1 The DMCA did many things,
but for our purposes its crucial provisions are those forbidding
the "circumvention of copyright protection systems," the
technological measures that copyright holders can use to deny
access to their works or control our behavior once we get
access. These measures include encryption, controls on how many
times a file can be copied, password protection, and so on.
Copyright protection systems are, in other words, the digital
equivalent of barbed wire, used to add an additional layer of
"physical" protection to the property owner's existing legal
protection. But, unlike barbed wire, they can also control what
we do once we get access to the property.
11
The rules that forbid circumvention of these systems are
logically, if not elegantly, referred to as the
anticircumvention provisions. They are to be found in Section
1201 of the Copyright Act, an ungainly and lumpily written
portion of the law that was inserted in 1998 as part of the
complex set of amendments collectively referred to as the DMCA.
I will explain the significance of these rules in a moment. My
hope is that the analogy to the Farmers' Tale will make them a
little easier to understand--at least for those of you for whom
talk of digital rights management, anticircumvention provisions,
and network effects is not second nature.
12
Notice the differences between this allegory and the "Internet
Threat" story line I described in the last chapter. There are
two sets of bad guys in the Farmers' Tale. The greedy thieves
(who are still thieves in this story--not heroes) and the greedy
farmers who use a genuine if indefinite "threat" posed by a new
technology to mask a power grab. The Internet Threat is the
story of an industry devastated by piracy, in desperate need of
help from the state to protect its legitimate property
interests. By contrast, the Farmers' Tale is the story of a
self-interested attempt not only to protect property but to cut
off recognized rights of public access in a way that will
actually make the whole society worse off. The legitimate role
of the state in protecting private property has been stretched
into an attempt to regulate technology so as to pick winners in
the marketplace, enriching the farmers at the expense of
consumers and other businesses. In the long run this will not be
good for business as a whole. A patchwork of private toll roads
is an economic nightmare.
13
That is not the most worrying part of the story: the farmers'
proposals are moving in the direction of regulating still more
technology--the mandatory radio beacons and constantly monitored
roads conjure up a police state--and all to protect a bunch of
hysterical vegetable growers whose political clout far outweighs
their actual economic importance.
14
Both the Internet Threat and the Farmers' Tale are, of course,
ways to understand what is currently going on in the
intellectual property wars. In the digital realm, the part of
the farmers is played by the content companies, the recording
industry associations, the movie and software trade groups.
Pointing to the threat of digital piracy, they demanded and
received extra legal protection for their copyrighted content.
Unlike earlier expansions--longer copyright terms, more stringent
penalties, the shrinking of exceptions and limitations,
expansions in copyrightable subject matter--this was not a
protection of the work itself; it was a protection of the
digital fences wrapped around it, and a regulation of the
technology that might threaten those fences.
15
What is the significance of this? The digital revolution makes
it easier to copy copyrighted content. It also makes it easier
to protect that content, and to do so in a more granular and
precisely calibrated way. Imagine being able to sell a paperback
book that could only be read by the original purchaser or a song
that could only be listened to by a particular person in a
particular room. Digital rights management technology makes it a
lot easier to do these things. Suddenly the copyright owners
have considerable physical control over their songs, e-books,
and software, even after they have sold them. It is as if the
recording industry or the publishers had a representative in
your living room. They can use that control not merely to
prevent illicit copying but to control and limit usage in ways
that go far beyond their exclusive rights under copyright. All
of this happens without the law or the state doing anything.
Like barbed wire, this is a technological protection measure.
16
Like the farmers, the content companies were not content with
their barbed wire alone. They wanted legally protected barbed
wire in addition to their existing legal rights under copyright.
Under the Digital Millennium Copyright Act, it became illegal to
circumvent a technical protection measure such as encryption--the
digital barbed wire behind which content companies secrete their
work--even if what you did with the content when you got past the
barbed wire was a fair use; excerpting a fragment of a film for
a school presentation, for example, or making a copy of an
encrypted audio file for personal use in another device. In
other words, by using digital barbed wire, the content companies
could prevent citizens from making the "fair uses" the copyright
law allowed. This undermines some of the limitations on their
exclusive rights that the Copyright Act explicitly carves out in
Section 107, and thus shifts the balance of power that the
Copyright Act establishes. Cutting barbed wire became a civil
wrong, and perhaps a crime, even if the wire blocked a public
road. Under most circumstances, making wire cutters was also now
against the law.
17
The ranchers--whose digital equivalents are communications
companies and hardware manufacturers--chafed under these new
rules. The most powerful groups managed to get special
dispensations. Internet service providers, for example, got a
qualified immunity from copyright infringement that occurs over
their networks. But ordinary citizens, librarians, and civil
libertarians also complained, and they were not as well
represented in the legislature. It is true that the new rules
may help to prevent illicit copying, but they also strike a blow
against the exercise of fair use rights--rights that are
important both to free speech and competition. Even if the
content companies were absolutely right about the threats from
digital piracy, this consequence should make us pause. But
critics of the DMCA say that there is little evidence that the
content companies are right. They quote some of the empirical
studies I mentioned in the last chapter, particularly the ones
that show no net negative effect from unauthorized music
downloading on CD sales. They claim--and they are on strong
ground here--that even if there are some losses from the new
copying technologies, there are also benefits. Like the farmers,
the critics would argue, the content companies take the benefits
of the new technology for granted, but wish the law to step in
to ameliorate the harms it also creates. And like the farmers,
they are not yet satisfied. Their new proposals go even
further--scarily further. Thus runs the critics' argument.
18
The critics of the DMCA conjure up a world in which it will be
illegal to lend each other books or songs, where it will be
impossible for us to copy even small fragments of digital work
for criticism or parody, where encryption research will be
severely "chilled," and where large quantities of the public
domain will be enclosed together with the copyrighted content
that the DMCA is supposed to protect. (The Electronic Frontier
Foundation's "Unintended Consequences" studies give concrete
examples.)2 They think the DMCA undoes the balance at the heart
of copyright law, that it can be used to entrench existing
businesses and their business methods, that it threatens speech,
competition, privacy, and innovation itself. In short, they
think the DMCA is the worst intellectual property law Congress
has ever passed and view the adoption of similar laws around the
world with a reaction little short of horror.
19
Those who supported the DMCA disagree, of course, and do so
honestly. They see rampant piracy as a reality and the threat to
fair use as some kind of academic hypothetical rarely
encountered in reality. What's more, many of them do not think
fair use is that important economically or culturally. If
markets work well, users could be made to pay for the rights
that fair use gives--but only if they wanted them. One could buy
expensive digital books which one was allowed to share, quote,
or copy for classroom use, and cheaper ones which one had to
keep to oneself. Remember that for many of the people who
supported the DMCA, fair use is something of a "loophole";
certainly not an affirmative right of the public or a reserved
limitation on the original property grant from the state.
(Remember the Sony Axiom from Chapter 4?) They find the analogy
of fair use to a public road ludicrous. This film, or book, or
song, is mine; anything you do with it, or to it, you do at my
sufferance. (Remember the Jefferson Warning from Chapter 2?)
20
How has the DMCA worked in reality? Which group's attitudes were
vindicated? Two case studies may help us to answer these
questions.
21
Infectious Speech: The DMCA
and Freedom of Expression
22
Jon Johansen, a 16-year-old Norwegian, was the unwitting
catalyst for one of the most important cases interpreting the
DMCA. He and two anonymous helpers wrote a program called DeCSS.
Depending on whom you listen to, DeCSS is described either as a
way of allowing people who use Linux or other open source
operating systems to play DVDs on their computers, or as a tool
for piracy that threatened the entire movie industry and
violated the DMCA.
23
A little background is in order. When you play a commercial DVD,
your actions are partly controlled by a simple encryption scheme
called CSS, or the Content Scramble System. The DVD Copy Control
Association licenses the keys to this encryption system to the
manufacturers of DVD players. Without a key, most DVDs could not
be played. The manufacturer then embeds this key in its hardware
design in such a way that it is easy for your player to decode
and play the movie but hard, at least for a person of average
technical competence, to copy the decoded "stream."
24
Because the DVD Copy Control Association will only license keys
to manufacturers whose DVD players conform exactly to their
specifications, the CSS scheme can also be used to control
viewers in other ways. For example, DVD players are required to
have one of six "region codes," depending on where in the world
they are sold. Region 1 is the United States and Canada. Region
2 is Japan, Europe, South Africa, the Middle East,
and--bizarrely--Greenland. Region 3 is South Korea, Taiwan, and
Hong Kong; and so on. The CSS scheme can be used to restrict a
movie to a player with the appropriate region code. If you try
to play a movie coded for region 6 (China) in a DVD player from
region 1, it will not play. This allows filmmakers to distribute
different versions of films to different regions at different
times based on sequential release in cinemas, or simply to
distribute DVDs with different prices to different regions
without worrying about whether the cheaper DVDs will "leak" into
the more lucrative markets. CSS and the hardware scheme that
unlocks it can also be used to prevent you from fast-forwarding
through the commercials at the beginning of the movie if the
copyright owner does not want you to, or from skipping the FBI
notice. The machine will not do it. In fact, it is deliberately
built so that it cannot do it.
25
What we have here is a digital fence that is partly used to
prevent copying. Movie studios are understandably worried about
the worldwide circulation of perfect digital copies of their
movies. CSS was supposed to help to prevent that, or at least
make it much harder. But because almost all movies are encrypted
with CSS and access to the keys comes with conditions, CSS also
allows a more fine-grained control over consumers. Manufacturers
are not allowed to make players which can view movies from all
region codes or skip portions of the DVD that the owners do not
want you to skip. The licensing body puts it this way on its Web
site: "Q. Under the terms of the CSS licensing agreement, is it
legal for a licensed manufacturer to produce and sell a product
which allows a user to disable any CSS protections? A. No. Such
products are not allowed under the terms of the CSS license.
They are illegal."3 A technology introduced to protect
intellectual property rights allows control in ways that those
rights alone do not.
26
Before the DMCA, the movie companies could have done exactly
this. They could have wrapped their movies in a digital fence.
The consumer electronics companies that wanted to could license
a key and be allowed to use a trademark that indicated that they
were approved by the DVD Copy Control Association. But what if a
manufacturer of DVD players felt that American consumers wanted
to be able to play their Japanese anime movies without buying
another DVD player to do so? Or what if they thought people were
antsy and did not want to watch the FBI notice before every
film? The manufacturer could have tried to "reverse engineer"
the CSS system, to figure out how it worked. If they succeeded,
they could make a player that was free of the restrictions that
the CSS licensing authority imposed.
27
Of course there were some legal limitations even before the
DMCA. Our hypothetical manufacturer could not break into the
safe where the CSS code was being held or bribe an employee to
provide it. (That would be a trespass or a violation of trade
secret law.) It could not violate copyright laws over the
various types of software that controlled DVD players. It could
not use the trademarks of any of the entities involved,
including any seal of approval granted by the DVD Copy Control
Association. But it could--at least in the United States--try to
reverse engineer the product so as to make a competing product
with features that the customers liked more. It would be no more
illegal than a company making a cheaper generic razor cartridge
that fits my expensive Gillette Mach 3 razor, a generic printer
cartridge to replace the expensive one in my Lexmark printer,
or, for that matter, a generic remote control for my garage door
opener. In each case, of course, the original manufacturer would
prefer that I use their products rather than the unlicensed
ones. They can design their product to make it hard to use a
generic replacement or even tell me that my warranty will be
void if I use one. But they cannot say that the unlicensed
product is illegal. We are back in option one of the Farmers'
Tale, before the legislature acted. The farmers can put up their
wire, and even use it to block passage that would be otherwise
legal, but it is not a crime to figure out a way through the
fence unless the fence cutter is also a trespasser. The DMCA,
however, might have changed all of that.
28
Let us return to Mr. Johansen, the 16-year-old Norwegian. He and
his two anonymous collaborators claimed that they were affected
by another limitation imposed by the CSS licensing body. At that
time, there was no way to play DVDs on a computer running Linux,
or any other free or open source operating system. (I will talk
more about free and open source software later.) Let's say you
buy a laptop. A Sony Vaio running Windows, for example. It has a
slot in the side for DVDs to slide in and software that comes
along with it which allows the DVD reader to decode and play the
disk. The people who wrote the software have been licensed by
the DVD Copy Control Association and provided with a CSS key.
But at the time Mr. Johansen set out to create DeCSS, the
licensing body had not licensed keys to any free or open source
software developers. Say Mr. Johansen buys the Sony Vaio, but
with the Linux operating system on it instead of Windows. The
computer is the same. The little slot is still there. Writing an
open source program to control the DVD player is trivial. But
without the CSS key, there is no way for the player to decode
and play the movie. (The licensing authority later did license
an open source player, perhaps because they realized its
unavailability gave Mr. Johansen a strong defense, perhaps
because they feared an antitrust suit, or perhaps because they
just got around to it.)
29
Mr. Johansen and his supporters claimed strenuously that DeCSS
was not in fact an aid to illicit copying. In fact, they argued
that CSS was not really designed to protect DVDs against illicit
copying. Commercial DVD "pirates" do not need to crack the CSS
encryption. Quite the contrary: they produce exact copies of the
DVD, CSS encryption and all, and the buyer's player dutifully
decodes it and plays it. Mr. Johansen claimed that his goals
were very different from those of the pirates.
30
The motivation was being able to play DVDs the way we want
to. I don't like being forced to use a specific operating system
or a specific player to watch movies (or listen to music). Nor
do I like being forced to watch commercials. When your DVD
player tells you "This operation is not allowed" when you try to
skip commercials, it becomes pretty clear that DRM really stands
for Digital Restrictions Management.4
31
In Mr. Johansen's view, CSS was simply an attempt to control
consumers, an attempt which should be a valid target for legal
reverse engineering. He has a point. There were indeed other
ways to copy DVDs which did not require DeCSS and which gave you
files of more manageable size. CSS was indeed more than a simple
anticopying device. The entire scheme--the keys, the licenses,
the hardware requirements--was designed to give movie studios
greater control over their movies in a number of ways, some of
them unrelated to copying. On the other hand, he overstated the
point. One function of CSS was indeed to make it harder for the
average person playing a DVD on a computer to copy the file from
the DVD to her hard disk and give it to a friend. It is very
easy for the average 14-year-old to take a commercial music CD,
change the songs into smaller files in the MP3 format, and share
them with a friend. It is not as easy to do the same thing to a
DVD--not impossible, just harder--and CSS is one of the reasons
why.
32
Mr. Johansen's program, DeCSS, was quickly made available
worldwide. Mirror sites provided copies of the program and lists
of such locations were easy to find using standard search tools.
One such list was provided by the online site run by a magazine
called 2600: The Hacker Quarterly. The magazine features
everything from pictures of pay phones from around the world to
tips on how to hack into computer or telephone systems. Its
publisher is one Eric Corley, who goes by the name Emmanuel
Goldstein--the resistance leader in George Orwell's 1984.
33
In 1999, Universal City Studios brought suit against a number of
individuals for distributing DeCSS. The case was called
Universal City Studios v. Reimerdes et al. Corley was among the
defendants. The suit prominently included a claim that the
defendants were violating the DMCA. It was in this case that the
DMCA received its first major legal challenge.
34
Depending on the characterization of the facts, the case seems
to be about very different things. It could seem a classic First
Amendment fight. ("Plucky magazine publisher told copyright law
forbids him from linking to other sites on the Internet!") Or it
could seem the very essence of illegal activity. ("Shadowy site
which unashamedly caters to computer 'hackers' tries to spread
access to the burglar's tools of cyberspace!")
35
Of course, most lawsuits involve conflicts over facts. Much of
what lawyers do is put the same facts into different conceptual
boxes. But here, merely describing what Corley does, what
hackers are, or what 2600 magazine is all about involves one in
a profound culture clash. The best way to capture the clash may
be to quote from an early entry about Corley in Wikipedia, the
remarkable online encyclopedia.
36
The encyclopedia first quotes the description of 2600 magazine
from Judge Lewis A. Kaplan, the federal district court judge who
decided the Reimerdes case.
37
"2600: The Hacker Quarterly has included articles on such
topics as how to steal an Internet domain name, how to write
more secure ASP code, access other people's e-mail, secure your
Linux box, intercept cellular phone calls, how to put Linux on
an Xbox, how to remove spyware, and break into the computer
systems at Costco stores and Federal Express. One issue contains
a guide to the federal criminal justice system for readers
charged with computer hacking. In addition, 2600 operates a web
site located at 2600.com (http://www.2600.com), which is managed
primarily by Mr. Corley and has been in existence since 1995."
38
The Wikipedia article then continues as follows:
39
While the judge's tone is clearly disapproving, others would
point out that bookstores, movies and television channels are
filled with material on how to commit murder . . . and that
without the efforts of the hacker community, however
illintentioned, computer insecurity would be even more of a
problem than it already is.5
40
In fact, Judge Kaplan was not entirely disapproving. He mentions
articles in 2600 that cover laudable or innocuous tasks, as well
as others about tasks that most readers would find objectionable
and rightly think to be illegal. But the anonymous volunteer who
wrote this version of Corley's Wikipedia entry clearly saw the
issue differently. Wikipedia does not portray the hacker
community as universally benevolent ("however ill-intentioned"),
but that community is also seen as providing a useful service
rather than merely a set of how-to guides for would-be digital
burglars.
41
To most people, pointing out vulnerabilities in computer
security systems seemed, at least in 1999, like telling the
world that your neighbor has forgotten to lock his door and all
his possessions are there for the taking. But to the online
community, it is by no means so clear. From the perspective of
those who are knowledgeable in the field, there is a moral
continuum. There is clearly legitimate computer security and
cryptography research, which includes attempts to break into
computer systems to test their defenses--that is how one finds
out they are secure, after all. Then there are "hackers." This
term could be used to describe those who merely like to program.
Richard Stallman, for example, the originator of the free
software movement, describes himself thus. But the term could
also be used for those who are interested in security or
interoperability--making two systems work together. That was Mr.
Johansen's declared goal, after all. But some self-described
hackers go further. They believe that exploring and disclosing
the weaknesses of supposedly secure systems is intellectually
fulfilling, practically important, and protected by the First
Amendment. They disclaim both moral and legal responsibility for
the consequences of their disclosures. (Or at least the negative
consequences; they frequently take credit for the positive
consequences, such as improved security.) Finally, there are
"crackers," whose interest in gaining entry to computer systems
is malicious or for financial gain. At what point on this
continuum does the activity become legally, or morally,
unacceptable? As the Reimerdes trial went on, it became clear
that the answer the DMCA gave might not be the same as the one
given even by undeniably legitimate computer scientists.
42
A large number of legal arguments were involved in the Reimerdes
case, but for our purposes here the most important ones dealt
with the relationship between copyright and the First Amendment.
What is that relationship?
43
In one obvious sense copyright actually aids free speech. By
providing an incentive to create works, copyright "add[s] the
fuel of interest to the fire of genius,"6 and thus helps to
create the system of decentralized creative production and
distribution I described in Chapter 1. But copyright also
restrains speech. At its base, it allows an individual to call
upon the state to prevent someone from speaking or expressing
themselves in a particular way. This may involve a simple
refusal to let the speaker use some text, picture, verse, or
story in their message, or it may involve a refusal to let them
transform it in some way.
44
Neither copyright law nor the American Constitution is blind to
these dangers. Copyright has a number of built-in safeguards.
The most important of these is that copyright only covers
"original expression"--both the ideas and facts in this book can
be used by anyone without my permission. Thus, goes the theory,
the speaker's freedom of expression is never truly restrained.
The only thing I am barred from is using your words, your exact
plot, your photograph, your music--not your facts, your ideas,
your genre, the events you describe.
45
That is not always enough, of course. Sometimes the problem is
that the speaker cannot paraphrase around the restraints posed
by copyright. He needs to use the particular text or image in
question to convey his message. The ideas, the facts, or a mere
paraphrase of the expression would not be enough. In cases like
that copyright's answer is "fair use." A politician could not
prevent journalists who disagree with him from quoting his
autobiography in discussing his life. If an African-American
author wishes to tell the story of Gone With the Wind from the
slaves' perspective, she may do so in the face of the copyright
holders' attempts to stop her. Even fair use, though, may not
cover every concern about free expression. Before World War II,
Alan Cranston--later a U.S. Senator--wanted to convince American
readers that the version of Hitler's Mein Kampf published in the
United States was distorted. He believed it to be slanted toward
American sensibilities, downplaying both anti-Semitism and
German expansionism. His solution? To publish his own English
translation, taken direct and uncut from the German edition. He
wanted to prove, with Hitler's own words, that the United States
had a dangerously distorted version of the German leader. But
this is the kind of thing copyright law forbids and it is not
clear that fair use allows. (In the end he did it anyway.)7
46
For the moment though, it is enough to realize that copyright
law is not immune from the First Amendment or from free speech
concerns more generally. If we do not notice that most of the
time, it is because the internal limitations of copyright--fair
use, the idea-expression distinction, and so on--generally take
care of the First Amendment issue, not because the issue was
never there.
47
So what First Amendment issues did the DMCA present? Most
obviously, the DMCA gave a new right to copyright owners. By
using a few simple technological measures, they could distribute
a work in a particular format and yet, because of their new
intellectual property right, they could make illegal an
otherwise lawful process of gaining access for the purposes of
making fair use. Of course, the First Amendment allows me to
make fair use factually impossible. I can do that without
raising any constitutional issues by hiding my manuscript and
never letting you see it or just by using unbreakable encryption
on my digital products. It allows me to use existing
conventional property rights to make fair use illegal. If I own
the only copy of the book and it is inside my house, it would be
trespass for you to enter. No First Amendment problem there. But
in passing the DMCA, Congress had created a new intellectual
property right inside copyright law itself, a law aimed directly
at expression, that made it illegal to get access for the
purpose of making fair use even when you legally bought the
physical book, or the physical DVD, and now wish to quote it or
parody it. Even that is not the problem. It is that Congress
cannot grant the exclusive rights of copyright without
simultaneously accompanying them by the limitations of fair
use.8 Regardless of what physical constraints and tangible
property rights might do to limit my ability to make fair uses,
Congress had now, by law, allowed a copyright owner to
distribute a particular work with the exclusive rights but
without some of those limitations.
48
Imagine that Congress had passed the following law instead of
the DMCA: "Any copyright owner can make it illegal to make a
fair use of a copyrighted work by putting a red dot on their
books, records, and films before selling them. It shall be a
crime to circumvent the red dot even if, but for the dot, the
use would have been fair." That would be clearly
unconstitutional. It gives copyright owners a new intellectual
property right to "turn off fair use" in copyrighted works
distributed to the mass market. Is the DMCA not the same thing?
49
This was the issue in Reimerdes. True, if I cut through the
digital fence on a DVD in order to excerpt a small portion in a
critical documentary, I would not be violating your copyright,
but I would be violating the anticircumvention provisions. And
DeCSS seemed to be a tool for doing what the DMCA forbids. By
providing links to it, Mr. Corley and 2600 were "trafficking" in
a technology that allows others to circumvent a technological
protection measure. DeCSS could, of course, be used for purposes
that did not violate copyright--to make the DVD play on a
computer running Linux, for example. It enabled various
noninfringing fair uses. It could also be used to aid illicit
copying. But the alleged violation of the DMCA had nothing to do
with that. The alleged violation of the DMCA was making the
digital wire cutters available in the first place. So one First
Amendment problem with the DMCA can be stated quite simply. It
appeared to make it illegal to exercise at least some of the
limitations and exceptions copyright law needs in order to pass
First Amendment scrutiny. Or did it just make it very, very
difficult to exercise those rights legally? I could, after all,
make a videotape of the DVD playing on my television, and use
that grainy, blurry image in my documentary criticizing the
filmmaker. The DMCA would not be violated, though my movie might
be painful to watch.
50
The other possible First Amendment problem with the DMCA was
that in regulating programs such as DeCSS, the DMCA was actually
regulating "speech." The first challenge to the DMCA was that,
by making tools like DeCSS illegal, the DMCA took away a
constitutionally necessary escape hatch to copyright, thus
making copyright law as a whole violate the First Amendment's
guarantee of freedom of speech. The second challenge was
different. The problem was that the program itself was speech
and the DMCA was regulating it illicitly.
51
The reasoning went like this. A computer program is a form of
expression and communication. The source code can even be read
by human beings. True, it is an abstract form of
communication--like musical notation and mathematical algorithms.
But those are clearly protected by the First Amendment. Congress
could not make Schoenberg's twelve-tone scale illegal or punish
mathematicians for physics equations that seemed to support a
theory of the universe's origin other than the creationism that
is currently so popular. True, the source code is a description
of a method of doing something, and the code can, if run on a
computer, produce a result--but one could argue that those
attributes do not affect the First Amendment's protection.
Neither a recipe for hash brownies nor a player piano roll for
the Nazi "Horst Wessel" song could constitutionally be
prohibited, even though actually to make the hash brownies would
be illegal, and even though the piano roll is functional (it
"makes" the player piano play the tune). True, most people
cannot read computer code, but speech does not need to be common
or accessible to be protected. In fact, the courts have even
held that the choice to communicate in a particular language is
constitutionally protected in some settings.
52
On the other hand, software code is undeniably functional. Lots
of functional articles can be said to have some expressive
content--a gun, an airbag, a crash helmet, a set of burglar's
tools, a computer virus. And many actions have expressive
content: a terrorist bombing, for example. Surely these could be
regulated by Congress? To the defendants, DeCSS looked like a
physics equation, a musical score, or a recipe. To the movie
studios, DeCSS had all the First Amendment significance of a
crowbar, lock pick, or, for that matter, a car bombing. The same
argument was repeated over the hyperlinks that Corley and others
provided to sites which carried the DeCSS program. Speech or
function? To the defendants, forbidding 2600 to link to these
sites was like preventing the Washington Post from describing
the availability of drugs on certain blocks of 16th Street. To
the movie companies, the hyperlinks were the equivalent of
loading potential buyers into a van, taking them down there, and
giving them enough money to make the purchase.
53
Which of the two First Amendment arguments is more convincing?
That the DMCA is a congressionally created off-switch for fair
use? Or that software code is speech and the DMCA restricts it?
Like a lot of scholars, before Reimerdes went to trial, I
thought that the first argument was by far the more powerful. I
still do. I thought the odds of the court buying the "code is
speech" argument were low. About that I was wrong, though it
turned out not to matter.
54
A number of the reports noted that after some initial
skepticism, Judge Kaplan had been impressed by the defendants'
expert witnesses, particularly those who had testified that code
was speech. When the ruling came out, this impression was
confirmed. Judge Kaplan agreed that code was a form of speech or
expression. But celebration was premature. Having done so, he
disagreed with the defendants' claim that it could not be
regulated.
55
Computer code is expressive. To that extent, it is a matter
of First Amendment concern. But computer code is not purely
expressive any more than the assassination of a political figure
is purely a political statement. Code causes computers to
perform desired functions. Its expressive element no more
immunizes its functional aspects from regulation than the
expressive motives of an assassin immunize the assassin's
action. In an era in which the transmission of computer viruses--
which, like DeCSS, are simply computer code and thus to some
degree expressive-- can disable systems upon which the nation
depends and in which other computer code also is capable of
inflicting other harm, society must be able to regulate the use
and dissemination of code in appropriate circumstances. The
Constitution, after all, is a framework for building a just and
democratic society. It is not a suicide pact.9
56
Judge Kaplan is right in saying that there cannot be a bright-
line rule immunizing computer code from regulation merely
because it has expressive elements. The First Amendment does not
protect computer viruses. But the defendants were not arguing
that computer code was constitutionally inviolable, only that
any law that regulated it had to be subject to First Amendment
scrutiny. After all, the government makes the description of how
to make a nuclear weapon classified information. That is clearly
"speech," but its regulation is also constitutional. The First
Amendment is not, and never was, an absolute guarantee of
freedom of speech. Instead, the question is whether the law is
within the realm of "the freedom of speech" guarantee, which in
turn depends on what kind of a law it is. Where does it fit in
the "levels of scrutiny" that courts have constructed to
discriminate between types of legislation affecting speech? Is
the DMCA a "content-based" regulation, such as a law forbidding
labor picketing but allowing other kinds of demonstrations?
Content-based regulations are given the highest and most
demanding level of scrutiny. Alternatively, is it a "content-
neutral" regulation, such as a law that forbids talking--about
any subject--in a library? To Judge Kaplan, the answer was clear,
and grounds for sarcasm.
57
The reason that Congress enacted the anti-trafficking
provision of the DMCA had nothing to do with suppressing
particular ideas of computer programmers and everything to do
with functionality--with preventing people from circumventing
technological access control measures--just as laws prohibiting
the possession of burglar tools have nothing to do with
preventing people from expressing themselves by accumulating
what to them may be attractive assortments of implements and
everything to do with preventing burglaries.
58
I agree, though it is worth noting that the burglar tool analogy
is a disputed one. Johansen claimed DeCSS was more like a
screwdriver--something with both licit and illicit uses.
59
So the DMCA was content-neutral regulation. That means it still
has to pass a fairly daunting legal threshold. It will only be
upheld if "it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest."10 Judge
Kaplan felt that the DMCA satisfied that standard. I am not so
sure. Yes, the governmental interest in protecting copyright
holders' rights is important. And yes, I must disagree with some
of my friends in the civil liberties world and say that the
government's interest is unrelated to the suppression of free
expression. But is "the incidental restriction of First
Amendment freedoms no greater than is essential to the
furtherance of that interest"? In other words, could the DMCA
have achieved its goals without imposing as great a limitation
on the expression of people like Mr. Johansen and Mr. Corley?
60
Congress could have passed many laws less restrictive than the
DMCA. It could have only penalized the use of programs such as
DeCSS for an illicit purpose. If it wished to reach those who
create the tools as well as use them, it could have required
proof that the creator intended them to be used for illegal
purposes. Just as we look at the government's intention in
creating the law, we could make the intent of the software
writer critical for the purposes of assessing whether or not his
actions are illegal. If I write a novel detailing a clever way
to kill someone and you use it to carry out a real murder, the
First Amendment does not allow the state to punish me. If I
write a manual on how to be a hit man and sell it to you, it
may. First Amendment law is generally skeptical of statutes that
impose "strict liability" without a requirement of intent. But
Judge Kaplan believed that the DMCA made the motives of Mr.
Johansen irrelevant, except insofar as they were relevant to the
narrowly tailored exceptions of the DMCA, such as encryption
research. In other words, even if Mr. Johansen made DeCSS so
that he and his friends could watch DVDs they purchased legally
on computers running Linux, they could still be liable for
breaking the DMCA.
61
The DMCA's breadth goes further than its treatment of intent.
The statute could have only made it illegal to provide a program
yourself. But Judge Kaplan interpreted it to prohibit even
linking to a site where the program is to be found. No
requirement of intent. No requirement that you actually supply
the infringing program. That is a pretty broad interpretation
and one which he admits restricts expression. How could he
conclude that restrictions this broad were "no greater than
essential"? From his rhetoric, the answer is clear. Judge Kaplan
believes the story of the Internet Threat I discussed in Chapter
4. He sees DeCSS as a poison. In fact, he thinks it is worse
than a poison because it may spread to infect others. It is a
disease, a virus. The DMCA is the stern and harsh quarantine
required to control it--a digital public health measure. His
reasoning is worth quoting at length.
62
There was a time when copyright infringement could be dealt
with quite adequately by focusing on the infringing act. . . .
The copyright holder . . . usually was able to trace the copies
up the chain of distribution, find and prosecute the infringer,
and shut off the infringement at the source. In principle, the
digital world is very different. Once a decryption program like
DeCSS is written, it quickly can be sent all over the world.
Every recipient is capable not only of decrypting and perfectly
copying plaintiffs' copyrighted DVDs, but also of retransmitting
perfect copies of DeCSS and thus enabling every recipient to do
the same. . . . The process potentially is exponential rather
than linear. Indeed, the difference is illustrated by comparison
of two epidemiological models describing the spread of different
kinds of disease. In a common source epidemic, as where members
of a population contract a non-contagious disease from a
poisoned well, the disease spreads only by exposure to the
common source. If one eliminates the source, or closes the
contaminated well, the epidemic is stopped. In a propagated
outbreak epidemic, on the other hand, the disease spreads from
person to person. Hence, finding the initial source of infection
accomplishes little, as the disease continues to spread even if
the initial source is eliminated.11
63
This is a very good point, and one that the critics of the DMCA
sometimes gloss over too quickly. The structure of digital
replication is indeed different from the old centralized model
of copying and distribution. Instead of tracing all illicit
copies back to a single infringing printing press, we face the
fear that the machinery of piracy can be copied just as fast as
the copies it allows us to make.
64
It is here that the defendants lose the battle of the metaphors.
Yes, code is speech, it conveys information. But viruses are
codes and they convey information too. Judge Kaplan explicitly
invokes this comparison several times. Biological viruses are
tools for the replication of genetic information. They subvert
their hosts' cellular programming to make copies of themselves,
just as a computer virus hijacks an infected computer and causes
it to send out more copies of the virus. True, DeCSS requires
human intervention to download the program and use it. Yet from
Judge Kaplan's language it is evident that he sees the program
not as an act of expression but as a virus spreading like
wildfire. Seen this way, the individual "choices" to download or
redistribute are simply the program's method of spreading
itself, like the irritation produced by the cold virus that
encourages sneezes and coughs, thereby transmitting the illness
to others. Just as in an epidemic, the harshest measures are
called for. There is no poisoned well here, no pirate with a
printing press we can shut down. Anyone is potentially an
infringer. Individuals cannot be presumed to be healthy. We
cannot give their immune systems, or their motives, the benefit
of the doubt. Instead we must see them as potential carriers.
The healthy must be quarantined as well as the sick. Facing such
a danger, Judge Kaplan agrees that Congress needed to be
draconian. We cannot wait for illegal copying. We must strike
preemptively at the technology that might enable it. There is no
place for inquiries into "intent" here; no way that we can
restrict liability to those who actually provide the program.
Thus, though "code is speech" and the DMCA does incidentally
restrict expression, Judge Kaplan concludes that its restraints
are no greater than is necessary.
65
There are three questions here. The first is whether Congress
was right. The second is whether, in the context of the movie
industry, we can see evidence of the evil it needed to combat.
The third question is very different: whether the DMCA is
constitutional. In my opinion, the answer to questions one and
two is no, for the reasons outlined in Chapter 4's analysis of
the Internet Threat. Yes, cheaper copying can increase the rate
of illicit copying, but it also lowers advertising costs and
offers new business models--Netflix, downloads on demand, viral
distribution of trailers, and so on. The technology helps as
well as hurts. It does not help the movie industry as much as it
might help the music industry, which can more easily distribute
its products over the Internet. But the Internet also does not
pose as much danger to movies as it does to music. The movie
industry's doomsaying aside, there is no exact movie equivalent
of Napster and there is unlikely to be one in the near future.12
66
This is not just because movies are longer and harder to
download than songs. It is because most people only watch a film
once. Most people do not want a library of two thousand films to
play again and again. Music is a repeated experience good in a
way that movies simply are not, and that social fact profoundly
affects the likelihood of downloading as opposed to rental. The
transient song on a radio or an Internet stream is not an
adequate substitute for possessing the song
permanently--something which costs a lot more. Apart from kids'
movies, which can be used to induce catatonia in one's progeny
time and again, and a few classic favorites, most people do not
want to own movies. Watching the film on television or renting
it for a night is perfectly satisfactory. Both of these involve
little hassle or cost. The content industries are fond of saying
"you cannot compete with free." But this is simply not true.
Cheap and easily acquired goods of certified quality compete
very well with free goods of uncertain quality whose acquisition
involves some difficulty. This is one of the main reasons the
movie companies were wrong in the Sony case.
67
Thus while Judge Kaplan's discussion of the looming digital
Black Death is nicely apocalyptic, it does not seem very
accurate. How many of your friends download movies illicitly
over the Internet, let alone movies that were ripped from DVDs?
Yes, it can be done. But the actual descriptions of the process
in the Reimerdes case smack more of bathos than terror.
68
Although the process is computationally intensive,
plaintiffs' expert decrypted a store-bought copy of Sleepless in
Seattle in 20 to 45 minutes. . . . The decryption of a CSS-
protected DVD is only the beginning of the tale, as the
decrypted file is very large. . . . One solution to this
problem, however, is DivX, a compression utility available on
the Internet that is promoted as a means of compressing
decrypted motion picture files to manageable size. . . . While
the compressed sound and graphic files then must be
synchronized, a tedious process that took plaintiffs' expert
between 10 and 20 hours, the task is entirely feasible. . . . At
trial, defendants repeated, as if it were a mantra, the refrain
that plaintiffs, as they stipulated, have no direct evidence of
a specific occasion on which any person decrypted a copyrighted
motion picture with DeCSS and transmitted it over the Internet.
But that is unpersuasive. Plaintiffs' expert expended very
little effort to find someone in an IRC chat room who exchanged
a compressed, decrypted copy of The Matrix, one of plaintiffs'
copyrighted motion pictures, for a copy of Sleepless in Seattle.
While the simultaneous electronic exchange of the two movies
took approximately six hours, the computers required little
operator attention during the interim.
69
So the epidemic threat that hangs over the movie industry
consists of the danger that someone will spend fifteen minutes
decrypting and ten to twenty hours tediously synchronizing a
movie that is then available for a speedy six-hour download?
70
Admittedly, someone only needs to do the synchronizing once.
There are newer tools that make the task easier. And we could
improve the download time. But even so, would you bother? Faced
with the colossal expense and hassle of renting the same movie
at Blockbuster for $3, some consumers might prefer this process,
I suppose. But I would not sell my shares in movie studios quite
yet. In fact, the real threat to movie studios is the large-
scale criminal distribution of illicitly copied DVDs--copied bit
for bit from the original. The distributors of those do not need
to use programs like DeCSS. A more distant threat comes from
legal recordings from television made on TiVo's and
ReplayTVs--where consumers' actions are legal and CSS is not an
issue. So far as we can tell, there is no measurable effect of
illicit digital downloads on sales or rentals of DVDs. We could
go through the process Judge Kaplan describes, I suppose, just
as when the VCR was invented we could have taped movies from
television and swapped them with our friends. But as the movie
studios discovered after the Sony case, most of us would rather
just rent the movie. Because something is possible does not mean
it will happen.
71
So in my view, Congress generally overestimated the threat posed
by the digital world and underestimated the benefits. In
addition, the movie industry is a weak place to make the case
for the necessity of the DMCA. Fine, but that is not the legal
issue here. The constitutionality of the DMCA does not turn on
whether the DMCA was a good idea. That is not the court's
decision to make. The question is not even whether the
particular industry involved is, in reality, facing much of a
threat from digital downloading. The law, after all, exists for
all digital works, not just the ones at issue here. The question
is whether the restriction on speech imposed by the DMCA was "no
greater than is essential." And that is a harder question.
72
I still disagree with Judge Kaplan. A more narrowly tailored
statute could have accomplished the DMCA's legitimate goals
without impinging as greatly on expression. I think that the
rhetoric of the Internet Threat blinded Judge Kaplan to some
important issues and led him to overestimate the danger and thus
the severity of the measures necessary to combat it. Thus, even
under the "code is speech" part of the analysis, I think the
DMCA fails First Amendment scrutiny. But if we are confining
ourselves to the expression inherent in the software itself, I
acknowledge that it is a close call.
73
Sadly, Judge Kaplan spent much less time on the other First
Amendment argument against the DMCA--that it is unconstitutional
because it gives copyright holders a new intellectual property
entitlement, created by Congress under the Copyright Clause, a
legal power to deprive users of a constitutionally required
limitation on copyright's exclusive rights. In my view, he also
framed the argument wrongly when he did discuss it. To be fair,
these problems can partly be traced to the fact that the
defendants spent most of their energy on the argument that code
was expression, paying less attention to everything else. As
Judge Kaplan explained it, the claim was that the DMCA might
have the effect of restricting an alleged fair use right of
access to copyrighted material. Predictably enough, he responded
that there was no such right of access. Copyright holders could
always lock up the book or restrict entrance to the gallery. In
any event, while fair use of DVDs might be curtailed, he argued
that most movies are also available on videotape. Even if the
film were only available on DVD, the prospective fair user could
write down the words and quote them, or record the sound from
the screen. Finally, Judge Kaplan pointed out that even if the
DMCA might allow a significant erosion of fair use to develop
over time, such a problem was not present here. Those making
First Amendment claims are sometimes allowed by courts to show
that, even if the law as it applied to them were constitutional,
it would restrict the First Amendment rights of others. Judge
Kaplan declined to apply that doctrine here. In effect, he said
"come back when there is a problem."
74
On appeal, the case was decided by a panel led by Judge Jon
Newman. Here the fair use argument received more attention but
the result was the same: "Come back when there is a problem."
Significantly, both courts pointed out another concern. The DMCA
could effectively make copyright perpetual because even though
the copyright term would expire, the legally protected
encryption would continue, and tools such as DeCSS, which would
have allowed access to the public domain work, would be
illegal.13 This is a major issue because it appears to violate
both the First Amendment and the Copyright Clause's requirement
of a limited time. The defendants did not spend adequate time on
this argument, however, and the courts again left it for later
consideration.
75
The court of appeals saw the defendants' argument in just the
same way as Judge Kaplan had seen it: a claim that there was a
fair use right of actual access to the finest version of every
work in every medium, on which the DMCA put a practical
limitation. Such a claim was easy to dismiss. There was no such
right of guaranteed practical access. Copyright owners could
restrict the practical ability to exercise fair use in many ways
without the Constitution being involved. In addition, in a world
where copyrighted content is frequently available in both analog
and digital form, the actual effects of the DMCA might be
trivial and were, in any event, constitutionally acceptable.
Judge Newman repeated Judge Kaplan's point that one could always
make fair use of the work in a way the DMCA did not reach, such
as by videotaping a picture of the screen.
76
The fact that the resulting copy will not be as perfect or
as manipulable as a digital copy obtained by having direct
access to the DVD movie in its digital form, provides no basis
for a claim of unconstitutional limitation of fair use. A film
critic making fair use of a movie by quoting selected lines of
dialogue has no constitutionally valid claim that the review (in
print or on television) would be technologically superior if the
reviewer had not been prevented from using a movie camera in the
theater, nor has an art student a valid constitutional claim to
fair use of a painting by photographing it in a museum. Fair use
has never been held to be a guarantee of access to copyrighted
material in order to copy it by the fair user's preferred
technique or in the format of the original.
77
Once the issue is framed this way, the case has been lost. I
would argue that there are three baseline errors here: a focus
on "affirmative rights of access" as opposed to limits on
Congress's power in handing out exclusive rights over expression
without their constitutionally necessary limitations, a focus on
practical effects of the provisions rather than on formal
constitutional limitations on the copyright system over all
classes of works, and a confusion between intellectual property
rights and physical property rights that goes to the heart of
the Jefferson Warning discussed in Chapter 2. The question is
not whether users have a constitutionally protected right of
practical access to a preferred version of a work. The question
is whether it violates the First Amendment for Congress to give
to copyright holders an intellectual property right to exempt
their copyrighted works in some formats from fair use and other
provisions that are necessary for copyright law in general to be
constitutional.
78
Remember my earlier example. What if Congress amended Section
1201 to say "Any copyright owner can make it illegal to make a
fair use of a copyrighted work by putting a red dot on their
books, records, and films before selling them. It shall be a
crime to circumvent the red dot even if, but for the dot, the
use would have been fair"? This statute, I think, is clearly
unconstitutional. It would be no answer to say that some owners
will not use the red dot, and even for those that do, there will
be older, dotless versions still available. It is irrelevant
that I might be able to copy down the crucial lines of the book
over your shoulder while you read it and thus claim that I,
personally, had not circumvented the dot. The
unconstitutionality of the statute does not turn on whether the
dots might fall off because of bad adhesive, or whether there
are many secondhand bookstores in the area, in which undotted
volumes can be found. Even if the red dot rule were only to be
applied to hardback books, or graphic novels, or cassette tapes,
it would still be unconstitutional. Nor do we have to wait until
the entire marketplace is dominated by red-dotted products
before considering the issue. It is no answer to say that even
before the red dot rule, copyright holders could always have
hidden their works, or locked them in safes, or even negotiated
individual contracts with the purchasers that have the effect of
limiting fair use. That way of framing it just misunderstands
the issue on a fundamental level. The claim is not about the
happenstance of practical access or the way that a copyright
holder can use physical control of an object or existing
tangible property rights to undercut fair use.
79
The point is that Congress violates the First Amendment when,
with respect to any work, it gives me an intellectual property
right to prohibit copying and distribution of an expressive work
sold in the marketplace and an additional legal power to opt out
of the limitations contained in Section 107 over that work. The
bundle of rights conveyed by the DMCA does exactly that. It is
not the DMCA alone that we must analyze. The question is whether
Congress can give the exclusive rights contained in Section 106
of the Copyright Act over a particular class of works (say
digital works), if it also gives a new right to prohibit
citizens from gaining access to those works for the purposes of
making a fair use. If Judge Kaplan and Judge Newman are correct,
then the DMCA gives an entirely new intellectual property right
(technically, a legal power) to the copyright holders to do
exactly that. To put it the other way around, the DMCA subtracts
from the citizen's bundle of entitlements under federal
copyright law, the right (technically, lawyers would call it a
privilege) to gain access to a work legally in his possession
for the purpose of making a fair use. It is that rule change
that is unconstitutional, I would argue, and the way Judge
Kaplan and Judge Newman frame that issue makes them miss the
point.
80
Framing is important. The confusions that I have talked about in
this book all make an appearance. It starts with the whole
controversy being framed by the Internet Threat story line from
Chapter 4. Because Judge Kaplan is convinced that every citizen
is now a potential infringer, a potentially infectious virus
carrier, he is ill disposed to listen to claims about fair use.
Civil liberties claims do not do very well in epidemics. It is
only right for him to defer to Congress's perception of the
problem and the solution, of course. But he buys so deeply into
the magnitude of the threat, the extent of the potential piracy
pandemic, that it is very hard for him to take seriously the
idea that even here there is a legitimate constitutional fair
use claim.
81
The Sony Axiom from Chapter 4 is also ignored, or at least
undervalued. As I pointed out there, without a robust set of
exceptions and limitations on copyright, the idea that cheaper
copying requires greater control will inexorably drive us toward
the position that the technologies of cheaper reproduction must
be put under the governance of copyright holders. The DMCA
continues that logic; its drafters concluded that the right to
get access to digital works for purposes of making a fair use
must be taken from the bundle of rights possessed by citizens,
while the right to enjoin both access and the technologies of
access is added to those of copyright holders. Never mind the
correctness of such a conclusion as a matter of policy. Are
there constitutional limitations on Congress taking such an
action? Kaplan and Newman in effect tell us, "not yet."
82
More important than the perception of the threat is the
understanding of what intellectual property is all about. In
Chapter 2, Jefferson warned us that intellectual property rights
are not like physical property rights. In analyzing the DMCA,
where do we turn for analogies? To physical property, violence,
and theft. The cases analyzing the DMCA are full of analogies to
trespass, to breaking and entering, to burglars' tools, and to
safecrackers. Private property carries a lot of baggage with it,
but we know it well--it is the place we naturally turn for
insight. Even I, in order to point out some of the difficulties
with those analogies, had to turn to farmers and barbed wire and
public rights-of-way along highways. There is nothing wrong with
analogies. They help us understand things that are new by
comparing them to things we think we understand better.
Analogies are only bad when they ignore the key difference
between the two things being analyzed. That is what happens
here.
83
Jefferson reminded us that intellectual property rights are
clearly artifacts of state creation, monopolies whose internal
limitations in scope, duration, and so on are just as important
as the rights themselves. Jefferson doubts whether even property
rights over land can be understood as natural and
absolute--copyrights and patents, which cover subject matter that
can be infinitely reproduced without diminishing its substance,
clearly cannot. They frequently involve a claim to control
purchasers' behavior with respect to some aspect of an artifact
after it has been sold to them in the marketplace, making
simpleminded analogies to "breaking and entering"
inappropriate--the extent of the property in question is
precisely the issue in dispute. (When Johansen was tried in
Norway under the national computer crime law, the court
laconically observed that he had bought the DVDs, and one cannot
break into one's own property--effectively turning the analogy on
its head.) Jefferson starts from the baseline that monopoly is
the exception and freedom is the rule--any limitations on that
freedom have to be justified. That is why he always discusses
the right and the limitations on the right as an inseparable
pair. One cannot discuss them in isolation.
84
Kaplan and Newman are fine, thoughtful judges. They do not
altogether ignore those points. But look how the analysis is set
up. At several points in the discussion, there seems to be the
assumption that copyright owners have entitlements to total
control as of right and that fair use is a mere lucky loophole
which, because it can be negated by the happenstance of whether
one can get physical access, can hardly have major First
Amendment status. They keep pointing out that physical control
and tangible property rights frequently allow copyright holders
to make fair use impracticable. "And so what?" Jefferson might
have responded. This is a classic non sequitur. The question is
whether the Congress has the power to add a new right of access-
denial to the intellectual property monopoly it is constructing,
undermining--as to some works and some fair uses--the balance that
the law sets up. The citizen is not pleading for a new right of
access, trumping all physical restraint and tangible property
rights. The citizen is claiming that Congress has no power to
give exclusive rights to restrain copying of digital content
while simultaneously taking away the citizen's existing right to
get access to that content for the purposes of fair use--at least
in those cases where access is physically possible and violates
no other property right, real or intellectual.
85
The Constitution does not require the United States to break
into President Nixon's desk to get me his tapes, buy me a tape
recorder, or give me a right to 18.5 minutes on the broadcast
airwaves to play them. But if I can get access to the tapes
legally, it does forbid the government from giving President
Nixon the power to put a red dot on those tapes and thus claim
an intellectual property right to stop me playing them on TV or
digitizing them to make the sounds clearer. The restraints
imposed by physical happenstance and tangible property rights
are different from those imposed by copyright--a congressionally
created monopoly over expression. We cannot assume because one
is constitutionally acceptable that the others are too.
Jefferson understood that, and his analysis can help us even in
a constitutional conflict over a technology he could hardly have
dreamt of. (Though perhaps with Jefferson, this is a bad bet.)
86
The same point comes up in a different way when the court
disconnects the fair use discussion from the exclusive rights
discussion. The question is not "Do I have a constitutionally
protected right of physical access to a preferred version of a
movie, so as to make my task easy?" That gets the court caught
up in questions of when a majority of movies will only be
available on DVD, or how poor a substitute the analog version
would be, or how many fair uses will require actually cutting a
digital fence. But all of these inquiries miss the point. The
question is "Can Congress hand out the exclusive rights of
copyright over digital works if it does not accompany those
rights with the suite of limitations that the court has
repeatedly said "saves" copyright from violating the First
Amendment?" The proportion of digital works to the total number
of works produced in other formats is irrelevant. As to these
works, the rule is unconstitutional. But what about the number
or proportion of types of fair uses affected? That is more
relevant but still not dispositive in the way Kaplan and Newman
imagined. True, not every trivial statutory modification of fair
use makes copyright unconstitutional. But this is not a trivial
modification: over an entire class of works, copyright owners
are given a legal power to deprive users of their privilege to
gain otherwise lawful access for the purposes of fair use. If
you give the digital filmmaker the exclusive rights of copyright
but forbid the film professor from going through the otherwise
lawful process of parodying or quoting, that rule is
unconstitutional, no matter how many other fair uses are
unaffected. If the copyright law were amended to forbid
journalists playing, on a Friday, excerpts of legally acquired
red-dotted tapes made by presidents whose last name begins with
N, it would still be unconstitutional.
87
The legal implementation of this conclusion would be simple. It
would be unconstitutional to punish an individual for gaining
access in order to make a fair use. However, if they cut down
the digital fence to make illicit copies, both the cutting and
the copying would be illegal. But what about the prohibition of
trafficking in digital wire cutters, technologies such as DeCSS?
There the constitutional question is harder. I would argue that
the First Amendment requires an interpretation of the
antitrafficking provisions that comes closer to the ruling in
the Sony case. If Mr. Johansen did indeed make DeCSS to play
DVDs on his Linux computer, and if that were indeed a
substantial noninfringing use, then it cannot be illegal for him
to develop the technology. But I accept that this is a harder
line to draw constitutionally. About my first conclusion,
though, I think the argument is both strong and clear.
88
Ironically, there is some support for my claim and it comes from
an even higher, if not uniformly more thoughtful, set of judges
than Newman and Kaplan. In the depressing case of Eldred v.
Ashcroft, the Supreme Court upheld retrospective copyright term
extensions against a variety of constitutional challenges. (Full
disclosure: I assisted in the preparation of an amicus curiae
brief in the case.) One of those challenges was based on the
First Amendment. The fairly reasonable claim was that Congress
could not retroactively lock up an entire twenty-year swathe of
culture that had already been produced. Such a law would be all
restraint of expression, performance, republication, adaption,
and so on, with no incentive benefits. The Court was
unconvinced. But it did say:
89
To the extent such assertions raise First Amendment
concerns, copyright's built-in free speech safeguards are
generally adequate to address them. We recognize that the D.C.
Circuit spoke too broadly when it declared copyrights
"categorically immune from challenges under the First
Amendment." . . . But when, as in this case, Congress has not
altered the traditional contours of copyright protection,
further First Amendment scrutiny is unnecessary.14
90
The DMCA, of course, does exactly this. As to digital works it
alters the "traditional contours of copyright protection" in a
way that affects "copyright's built-in free speech safeguards."
That is what the Farmers' Tale was all about. Perhaps one day,
in a case not involving a Norwegian teenager, a hacker magazine
run by a long-haired editor with an Orwellian nom de plume, and
an obscure technology that is accused of posing apocalyptic
threats to the American film industry, that point will come out
more clearly.
91
But the issue of speech regulation is only half of the story.
Intellectual property rights over digital technologies affect
not only speech, but the framework of competition and markets as
well, as the next example makes clear.
92
The Apple of Forbidden Knowledge:
The DMCA and Competition
93
You could tell it was a bizarre feud by the statement Apple
issued, one strangely at odds with the Californian Zen-chic the
company normally projects. "We are stunned that RealNetworks has
adopted the tactics and ethics of a hacker to break into the
iPod, and we are investigating the implications of their actions
under the DMCA and other laws."15
94
What vile thing had RealNetworks done? They had developed a
program called Harmony that would allow iPod owners to buy songs
from Real's Music Store and play them on their own iPods. That's
it. So why all the outrage? It turns out that like the story of
DeCSS, this little controversy has a lot to teach us about the
landscape of intellectual property disputes, about the mental
topography of the high-tech economy. But where the DeCSS case
was a war of metaphors around the boundaries of freedom of
expression, the iPod story is about ways in which intellectual
property marks the limits of competition.
95
Apple iPods can be used to store all kinds of material, from
word processing documents to MP3 files. If you want to use these
popular digital music players to download copy-protected music,
though, you have only one source: Apple's iTunes service, which
offers songs at 99 cents a pop in the United States, 79 pence in
the United Kingdom. If you try to download copy-protected
material from any other service, the iPod will refuse to play
it. Or at least, that had been the case until Real managed to
make their Harmony service compatible.
96
Real's actions meant that consumers had two sources of copy-
protected music for their iPods. Presumably all the virtues of
competition, including improved variety and lowered prices,
would follow. The iPod owners would be happy. But Apple was not.
The first lesson of the story is how strangely people use the
metaphors of tangible property in new-economy disputes. How
exactly had Real "broken into" the iPod? It had not broken into
my iPod, which is after all my iPod. If I want to use Real's
service to download music to my own device, where's the breaking
and entering?
97
What Real had done was make the iPod "interoperable" with
another format. If Boyle's word processing program can convert
Microsoft Word files into Boyle's format, allowing Word users to
switch programs, am I "breaking into Word"? Well, Microsoft
might think so, but most of us do not. So leaving aside the
legal claim for a moment, where is the ethical foul?
98
Apple was saying (and apparently believed) that Real had broken
into something different from my iPod or your iPod. They had
broken into the idea of an iPod. (I imagine a small, platonic
white rectangle, presumably imbued with the spirit of Steve
Jobs.) Their true sin was trying to understand the iPod so that
they could make it do things that Apple did not want it to do.
As an ethical matter, does figuring out how things work, in
order to compete with the original manufacturer, count as
breaking and entering? In the strange netherworld between
hardware and software, device and product, the answer is often a
morally heartfelt "yes!" I would stress "morally heartfelt." It
is true manufacturers want to make lots of money and would
rather not have competitors. Bob Young of Red Hat claims "every
business person wakes up in the morning and says 'how can I
become a monopolist?' " Beyond that, though, innovators actually
come to believe that they have the moral right to control the
uses of their goods after they are sold. This isn't your iPod,
it's Apple's iPod.
99
Yet even if they believe this, we don't have to agree. In the
material world, when a razor manufacturer claims that a generic
razor blade maker is "stealing my customers" by making
compatible blades, we simply laugh. The "hacking" there consists
of looking at the razor and manufacturing a blade that will fit.
To say this is somehow immoral seems laughable. Is the
conclusion changed when the information about compatibility is
inscribed in binary code and silicon circuits, rather than the
molded plastic of a razor cartridge? What if ensuring the "fit"
between the two products is not a matter of making sure the new
blades snugly connect to the razor but of making sure the
software embedded in my generic product sends the right code to
the original product in order to be recognized? Our moral
intuitions are a little less confident here. All kinds of bad
policy can flourish in that area of moral uncertainty.
100
This leads us to the law. Surely Apple's suggestion that the
DMCA might prohibit what Real had done is as baseless as their
moral argument? In the United States, the answer is "probably,"
at least if the courts continue in the direction they are
currently taking, but it is a closer call than you would think.
Internationally, the answer is even less certain. That is where
the iPod war provides its second new-economy lesson. Think for a
moment about the way that the law shapes the business choices in
this dispute.
101
In a competitive market, Apple would choose whether to make the
iPod an open platform, able to work with everyone's music
service, or to try to keep it closed, hoping to extract more
money by using consumers' loyalty to the hardware to drive them
to the tied music service. If they attempted to keep it closed,
competitors would try to make compatible products, acting like
the manufacturers of generic razor blades or printer cartridges.
102
The war would be fought out on the hardware (and software)
level, with the manufacturer of the platform constantly seeking
to make the competing products incompatible, to bad-mouth their
quality, and to use fear, uncertainty, and doubt to stop
consumers from switching. (Apple's actual words were: "When we
update our iPod software from time to time, it is highly likely
that Real's Harmony technology will cease to work with current
and future iPods.") Meanwhile the competitors would race to
untangle the knots as fast as the platform manufacturer could
tie them. If the consumers got irritated enough they could give
up their sunk costs and switch to another product altogether.
103
All of this seems fine, even if it represents the kind of
socially wasteful arms race that led critics of capitalism to
prophesy its inevitable doom. Competition is good and
competition will often require interoperability. But what do we
mean by competition? Is it competition if I assassinate your
employees or poison the food in your restaurant? If I trespass
on your land in order to sell a competing product? If I break
into your safe to steal your trade secrets, use my monopoly
position in the market to impose resale price agreements, or
violate your patent? It is the law that draws the line between
competition and theft, between virtuous competitive imitation
and illicit "piracy."
104
Sometimes we need to give innovators property rights that allow
them to prevent second-comers from free riding on their efforts.
We have to do so because it is necessary to encourage future
innovation. On the other hand, sometimes we not only allow the
second-comer to free ride, we positively encourage it, believing
that this is an integral part of competition and that there are
adequate incentives to encourage innovation without the state
stepping in. Intellectual property policy, indeed a large part
of the policy behind all property rights, is about drawing the
line between the two situations. Too far in one direction and
innovation suffers because potential investors realize good
ideas will immediately be copied. Too far in the other direction
and monopolies hurt both competition and future innovation.
105
Imagine you are the first person to invest in getting the public
to eat burritos for breakfast, or to place a petrol station at a
certain crossroads, or to clip papers together with a folded bit
of wire. In each case we give you some property rights. The
fast-food vendor may own a trademarked phrase or jingle that the
public learns to associate with his product. Since the patent
office issued a patent for the sealed and crimped "peanut butter
and jelly" sandwich I described at the beginning of the book,
even a patent is not out of the question if your disgusting
concoction is sufficiently novel and nonobvious. But we should
not allow you to have a patent over all burritos, or burritos
for breakfast, still less over the idea of fast food. As for the
paper clip maker, there might be a trademark over the particular
paper clip, but the idea of folding wire to secure paper stays
in the public domain. The owner of the petrol station gets
physical ownership of the land, but cannot stop a second-comer
from setting up shop across the road, even if the first-comer's
labor, capital, and effort proved that the location is a good
one. We positively encourage follow-on imitation in those cases.
106
Now how about the case in point? What does Apple get in the way
of property rights? Think back to my description of the
intellectual property system in Chapter 1. They can get patents
over those aspects of the iPod--both hardware and software--that
are sufficiently innovative. Patents are what we use to protect
inventions. They also get a copyright over the various pieces of
software involved. That protects them only against someone who
copies their code, not someone who writes new software to do the
same thing. Copyrights are what we use to protect original
expression. They get rights under trademark law over the name
and perhaps parts of the design of the product--maybe the
distinctive look of the iPod--though that is a bit more complex.
All of these rights, plus being the first to break into the
market in a big way, the brilliance of the design, and the tight
integration between the hardware and the service, produce a
formidable competitive advantage. The iPod is a very good
product.
107
Now if a competitor infringes any of Apple's rights, for example
by making a literal copy of the code, using their trademark in a
way the law does not allow, or infringing on one of their
patents, then Apple can shut them down and extract hefty
damages. Quite right, too. But should they be able to prevent
someone from making an interoperable product, provided they do
not violate any of these existing rights in the process? Laws
like the DMCA make that question more complicated.
108
Nowadays, there is software in many, many more products than you
would imagine. Your watch, your phone, your printer, your
thermostat, your garage door opener, your refrigerator, your
microwave, your television--the odds are that if you bought them
in the last ten years, they have some software component. In the
1970s the courts and Congress had concluded that software could
be copyrighted as original expression, like a song or a novel,
as well as being patented when it was novel, nonobvious, and
useful. Frequently, different aspects of the same program will
be covered by copyright and by patent. But software is a machine
made of words, the machine of the digital age. That fact already
causes some problems for our competition policy. Will the
exceptions and limitations designed to deal with a copyright
over a novel work adequately when they are applied to Microsoft
Windows? That issue was already unclear. With the DMCA, we have
added another crucial problem. Where there is copyrighted
software there can be digital fences around it. If the copyright
owner can forbid people to cut these fences to gain access to
the software, then it can effectively enlarge its monopoly,
capture tied services, and prohibit generic competition.
109
It was just this line of thought that led some other companies
to do more than merely make threatening noises about the DMCA.
Lexmark makes printers. But it also makes lots of money off the
replacement ink or toner cartridges for those printers. In some
cases, in fact, that is where printer companies make the
majority of their profits. As a result, they are not exactly
keen on generic replacements. Chamberlain makes garage door
opener systems. But they also sell replacements for the
controllers--the little devices that you use to trigger the door.
Lawyers from both of those firms looked at the DMCA and saw a
chance to do something most companies would love to do; to make
generic competition illegal. Lexmark designed their printer
program so that it would not accept a toner cartridge unless it
received the correct "checksum" or validation number. So far,
this looks no different from the razor manufacturer trying to
make it difficult to manufacture a compatible replacement blade.
Generic competitors now had to embed chips in their printer
cartridges which would produce the correct code, otherwise they
would not work in Lexmark printers.
110
Static Control Components is a North Carolina company that
manufactures chips whose main function is to send the correct
code to the printer program. With this chip implanted in them,
generic cartridges would work in Lexmark printers. Lexmark's
response could have been to change their program, rendering the
chip obsolete, just as Apple could change the iTunes software to
lock out Real Music's Rhapsody. Doing so would have been quite
within their rights. Indeed it is a standard part of the
interoperability wars. Instead, Lexmark sued Static Controls,
claiming, among other things, a violation of the DMCA.16 Like
Apple in the press release I quoted earlier, Lexmark clearly saw
this as a kind of digital breaking and entering. This was their
printer, their printer program, their market for replacement
cartridges. Static was just helping a bunch of cheats camouflage
their generic cartridges as authentic Lexmark cartridges.
Translated into the legal language of the DMCA the claim is a
little different, but still recognizable. Static was
"trafficking" in a device that allowed the "circumvention of a
technical protection measure" used to prevent "access to a
copyrighted work"--namely the computer program inside the
printer. That is behavior that the DMCA forbids.
111
The garage door company, Chamberlain--who also claimed to be
concerned about the security of their garage doors--made a
similar argument. In order to get the garage door to open, the
generic replacement opener had to provide the right code to the
program in the actual motor system. That program is copyrighted.
The code controls "access" to it. Suddenly, the manufacturers of
generic printer cartridges and garage door openers start to look
rather like Jon Johansen.
112
Surely the courts did not accept this argument? Bizarrely
enough, some of them did--at least at first. But perhaps it was
not so bizarre. The DMCA was indeed a radical new law. It did
shift the boundaries of power between intellectual property
owners and others. And intellectual property rights are always
about restraining competition, defining what is legitimate and
what is not--that is what they do. There was a respectable
argument that these devices did in fact violate the DMCA. In
fact, it was respectable enough to convince a federal judge. The
district court judge in the Lexmark case concluded that Lexmark
was likely to win on both the DMCA claim and on a more
traditional copyright claim and issued an injunction against
Static Control. In Skylink, the case involving garage door
openers, by contrast, the district court held that the universal
garage door opener did not violate the DMCA. Both cases were
appealed and both appeals courts sided with the generic
manufacturers, saying that the DMCA did not prohibit this kind
of access--merely making a computer program work the way it was
supposed to.
113
The U.S. Court of Appeals for the Federal Circuit (CAFC) heard
the Skylink appeal. In a remarkably far-reaching decision, the
court effectively took many of the positions that Mr. Corley's
lawyers had argued for in the DeCSS case, but they did so not to
protect speech, but to protect competition. In fact, they
implied that taking Chamberlain's side in the case would
silently overrule the antitrust statutes. They also interpreted
the new right created by the DMCA so as to add an implicit
limitation. In their construction, merely gaining access is not
illegal; only gaining access for the purpose of violating the
copyright holders' rights violates the statute. The Reimerdes
court had been willing to accept that the new access right
allows a copyright holder to prohibit "fair uses as well as
foul." When Chamberlain made the same argument as to their
garage door opener program, the CAFC was incredulous.
114
Such an entitlement [as the one Chamberlain claims] would go
far beyond the idea that the DMCA allows copyright owner to
prohibit "fair uses . . . as well as foul." Reimerdes, 111 F.
Supp. 2d at 304. Chamberlain's proposed construction would allow
copyright owners to prohibit exclusively fair uses even in the
absence of any feared foul use. It would, therefore, allow any
copyright owner, through a combination of contractual terms and
technological measures, to repeal the fair use doctrine with
respect to an individual copyrighted work--or even selected
copies of that copyrighted work.17
115
There are multiple ironies here. The CAFC rarely meets an
intellectual property right it does not like. It has presided
over a twenty-year expansion of American patent law that many
scholars find indefensible. But when (for dubious jurisdictional
reasons) it sorties beyond its traditional ambit of patent law,
it is stunned by the potential expansiveness of the DMCA. Then
there is the comparison with the Reimerdes case. How interesting
that the First Amendment and concerns about free expression have
comparatively little bite when applied to the DMCA, but
antitrust and concerns about competition require that we curtail
it. After all, the heart of Mr. Johansen's argument was that he
had to write the DeCSS program in order to play his own DVDs on
his own computer--to get access to his own DVDs, just as the
purchaser of a replacement garage door control is getting access
to the program that operates his own garage door. Indeed, Mr.
Johansen's criticism of CSS was that it allowed the movie
companies, "through a combination of contractual terms and
technological measures, to repeal the fair use doctrine with
respect to an individual copyrighted work." Mr. Corley echoed
those claims.
116
Of course, the situations are not identical. The key limitation
in Skylink is that the court saw no threat of "foul use." The
Reimerdes court could see little else. On the other hand, the
rulings are not easily reconciled. The Skylink court cannot
imagine that Congress would want to give the copyright holder a
new "property" right to prevent access unconnected to any
underlying copyright violation.
117
As we have seen, Congress chose to create new causes of
action for circumvention and for trafficking in circumvention
devices. Congress did not choose to create new property rights.
. . . Were we to interpret Congress's words in a way that
eliminated all balance and granted copyright owners carte
blanche authority to preclude all use, Congressional intent
would remain unrealized.
118
Yet, arguably, that is exactly what the Reimerdes decision does,
precisely because it focuses on enabling access alone, not
access for the purpose of violating one of the rights of the
copyright holder. The Reimerdes court saw a violation of the law
just in cutting the wire or making a wire cutter. The Skylink
court focused on whether the person cutting the wire was going
to trespass once the cutting was done. In effect, the two courts
disagree on which of the options offered to the legislature in
the Farmers' Tale was actually enacted by Congress. Which court
is correct? The Skylink decision strikes me as sensible. It also
makes the statute constitutionally much more
defensible--something that the Skylink court does not consider.
But in the process, it has to rewrite the DMCA substantially.
One should not presume that it will be this interpretation that
will triumph.
119
SUMMING UP: EXAGGERATIONS,
HALF-TRUTHS, AND BIPOLAR DISORDERS
IN TECHNOLOGY POLICY
120
Let me return to the question with which I began the chapter.
For many critics of contemporary intellectual property law, the
DMCA is the very embodiment of all that is wrong. (I still
cherish a friend's account of British protesters outside the
American Embassy in London singing "D-M-C-A" to the tune of the
Village People's "YMCA" and holding up signs calling for the
law's repeal--to the great confusion of the diplomatic
personnel.) The critics conjure up a digital apocalypse--a world
of perfect control achieved through legally backed digital
fences, in which both speech and competition suffer, and where
citizens lose privacy, the privilege of fair use, and the right
to criticize popular culture rather than simply consume it. In
their view, the legal disaster is only exacerbated by bumbling
judges who do not understand the technology and who are easily
fooled by the doom-laden rhetoric of the content companies. The
DMCA's supporters, on the other hand, think criticisms of the
DMCA are overblown, that the dark tales of digital control are
either paranoid delusions or tendentious exaggerations, and that
far from being excessive, the DMCA's provisions are not
sufficient to control an epidemic of illicit copying. More
draconian intervention is needed. As for fair use, as I pointed
out before, many of the DMCA's supporters do not think fair use
is that important economically or culturally speaking. At best
it is a "loophole" that copyright owners should have the right
to close; certainly not an affirmative right of the public or a
reserved limitation on the original property grant from the
state.
121
Who is right? Obviously, I disagree profoundly with the DMCA's
supporters. I wrote this book partly to explain--using Jefferson
and Macaulay and the Sony case--what was wrong with their logic.
It would be both convenient and predictable for me to claim that
the DMCA is the intellectual property incarnation of the
Antichrist. But it would not be true. In fact, I would not even
put the DMCA in the top three of bad intellectual property
initiatives worldwide. And many of the fears conjured up about
it are indeed overblown.
122
Of course, the critics have a point. The DMCA is a very badly
drafted law. As I have tried to show here, its key provisions
were probably unnecessary and are, in my view, unconstitutional.
If coupled with a number of other legal "innovations" favored by
the content industry, the DMCA could play a very destructive
role. In general, in fact, the Farmers' Tale is fairly accurate
in describing both the origins of and the threats posed by the
DMCA. Yet the single largest of those threats--the idea that the
DMCA could be used to fence off large portions of the public
domain and to make the fair use provisions of the Copyright Act
essentially irrelevant--is still largely a threat rather than a
reality. In some cases, fair use rights are curtailed. But for
most citizens and for the majority of media, the DMCA has had
relatively little effect. Digital rights management (DRM)
certainly exists; indeed it is all around us. You can see that
every time you try to play a DVD bought in another part of the
world, open an Adobe eBook, or copy a song you have downloaded
from iTunes. But so far, the world of legally backed digital
rights management has not brought about the worst of the
dystopian consequences that some people, including me, feared
might result.
123
In many cases, citizens simply reject digital rights management.
They will not buy products that use it. Attempts to introduce it
into music CDs, for example, have been a resounding failure. In
other cases, DRM has not been used in ways that the critics
feared. There are genuine scandals, of course--cryptography
research has been chilled, the DMCA has been turned to
anticompetitive ends, and so on. It is also troubling to see
federal judges issuing injunctions not only against banned
material but also against those who link to the banned material.
Somehow the blithe reassurance that this is consistent with the
First Amendment fails to comfort one. But many of the evils
prophesied for the DMCA remain as just that: prophecies.
124
There are also entries on the positive side of the ledger. The
"safe-harbors" that the DMCA gave Internet service providers and
search services have been a vital and positive force in the
development of the Internet. It may even be true that in some
cases, such as iTunes, the DMCA did what its backers claimed it
would--encourage new provision of digital content by reassuring
the record companies that they could put their music online
surrounded by legally backed digital rights management.
(Notably, however, the trend is now going the other way.
Companies are coming to realize that many consumers prefer, and
will pay more for, unprotected MP3 files.)
125
Of course, depending on your view of the music industry, that
might seem like a mixed blessing. One might also wonder if the
same consumer benefits might have been produced with a much less
restrictive law. But with the exception of a few important
areas--such as cryptography research, where its effects are
reported to be severe--I would have to say that the criticisms
focus too much on the DMCA, to the exclusion of the rest of the
intellectual property landscape. Yes, the DMCA offers enormous
potential for abuse, particularly in conjunction with some other
developments in intellectual property that I will discuss later,
but much of the abuse has not yet happened. Yet even if it never
did happen, the DMCA has important lessons to teach us.
126
In this section I have tried to show how legal
rules--particularly intellectual property rules--define the
boundaries of legitimate competition. We used to assume that
this was principally the function of patent and trademark law,
less so of copyright. Of course, copyright would affect
competition in publishing and in the TV and movie industries,
but it hardly seemed central to competition policy in general.
But once courts and legislatures accepted that software is
copyrightable, that assessment changed. The levers and cogs of
the machines of the modern economy are forged out of ones and
zeros instead of steel and brass. In that situation, copyright
is central to the competition policy of a high-tech economy.
127
As the Apple case shows, our moral intuitions about competition
are going to be cloudier in the world of digital content and
cyberspace. The same is true of the law. Even in the material
world it can be hard to draw the line between the legitimate and
ruthless pursuit of commercial advantage and various forms of
unfair competition, antitrust violations, and so on. But in the
immaterial world, the boundaries are even harder to draw. Is
this the digital equivalent of trespass or legitimate passage on
a public road that runs through your property? As I pointed out
earlier, the constant analogies to physical property are likely
to conceal as much as they reveal. Is this virtuous competitive
imitation or illicit copying? We have strong, and by no means
coherent, moral and legal intuitions about the answers to such
questions. And our legal structure often gives us the raw
material to make a very good case for both sides of the
argument.
128
Into this already troubled situation, with a set of rules
designed for original expression in novels and poems being
applied to machines made of computer code, we add the DMCA and
its new rights of uncertain extent. Copyright had a well-
developed set of exceptions to deal with anticompetitive
behavior. Where the existing exceptions did not function, courts
tended to turn to fair use as the universal method for patching
the system up--the duct tape of the copyright system. Without an
evolving idea of fair use, copyright would overshoot its bounds
as it was applied to new technologies and new economic
conditions. Indeed that was the point of the Sony Axiom. The
DMCA threw this system into disarray, into a war of competing
metaphors.
129
The Skylink court sees monopolists being handed carte blanche to
abolish the restraints on their monopolies. Competition policy
demands that we construe the DMCA narrowly. The Reimerdes court
sees a virus masquerading as speech, a digital pandemic that
must be stopped at all costs by a draconian program of
electronic public health. Each proceeds to construe the statute
around the reality they have created. It is by no means certain
which metaphor will win the day, still less which resolution
will triumph in other countries that have passed versions of the
DMCA. International attitudes toward speech, competition, and
the necessary exceptions in a copyright system vary widely. Yet
backed by the story of the Internet Threat, the content
companies are already saying that we need to go further both
nationally and internationally--introducing more technology
mandates, requiring computers to have hardware that will only
play approved copyrighted versions, allowing content companies
to hack into private computers in search of material they think
is theirs, and so on. Remember the suggestion from the beginning
of the chapter, that all cars be assumed to be getaway vehicles
for the felonious filchers of vegetables, and thus that they
should be fitted with radio beacons, have the size of their
cargo space reduced, and so on? The Farmers' Tale continues to
evolve.
Chapter 6: I Got a Mashup
1
So far, I have talked about the root ideas of intellectual
property. I have talked about its history, about the way it
influences and is influenced by technology. I have talked about
its effects on free speech and on competition. Until now,
however, I have not described the way that it actually affects
culture. This chapter aims to rectify the omission, looking at
the way copyright law handles one specific form of cultural
creation--music. It turns out that some of the problems
identified in Chapters 4 and 5 are not simply the result of a
mismatch between old law and new technology, or the difficulties
posed in applying copyright to software, to machines made of
words. The same issues appear at the heart of a much older
cultural tradition.
2
This is the story of a song and of that song's history. But it
is also a story about property and race and art, about the way
copyright law has shaped, encouraged, and prohibited music over
the last hundred years, about the lines it draws, the boundaries
it sets, and the art it forbids.
3
Music is hard for copyright law to handle. If one had to
represent the image of creativity around which copyright law and
patent law, respectively, are built, patent law's model of
creativity would be a pyramid and copyright law's a fountain, or
even an explosion.
4
In patent law, the assumption is that technological development
converges. Two engineers from two different countries tend to
produce similar ways of catching mice or harnessing the power of
steam. There are a limited number of good ways of accomplishing
a technical task. In addition, technological progress is assumed
to be incremental. Each development builds on the ones behind
it. Based on this image, patent law makes a series of decisions
about what gets covered by property rights, for how long, how to
handle "subsequent improvements," and so on. Patent rights last
for a short time, not only to lower costs to consumers, but
because we want to build on the technology inventors have
created as soon as possible, without getting their permission.
Even during the patent term, subsequent "improvers" get their
own rights and can bargain with the original patent holder to
share the profits.
5
Copyright's assumptions are different. Copyright began with
texts, with creative expression. Here the assumption is
(generally) that there are infinite possibilities, that two
writers will not converge on the same words, and that the next
generation of storytellers does not need to take the actual
"stuff" that copyright covers in order to make the next play or
novel. (It may be because of this image that so few policy
makers seem to worry that copyright now lasts for a very long
time.) Subsequent "improvements" of copyrighted material are
called derivative works, and without the rights holder's
permission, they are illegal. Again, the assumption seems to be
that you can just write your own book. Do not claim you need to
build on mine.
6
Of course, each of these pictures is a caricature. The reality
is more complex. Copyright can make this assumption more easily
because it does not cover ideas or facts--just their expression.
"Boy meets girl, falls in love, girl dies" is not supposed to be
owned. The novel Love Story is. It is assumed that I do not need
Erich Segal's copyrighted expression to write my own love story.
Even if literary creativity does converge around standard
genres, plots, and archetypes, it is assumed that those are in
the public domain, leaving future creators free to build their
own work without using material that is subject to copyright. We
could debate the truth of that matter for literature: the
expansion of copyright's ambit to cover plotlines and characters
makes it more questionable. Certainly many recognized forms of
creativity, such as the pastiche, the collage, the literary
biography, and the parody need extensive access to prior
copyrighted work. But regardless of how well we think the image
of individual creativity fits literature, it fits very poorly in
music where so much creativity is recognizably more collective
and additive, and where much of the raw material used by
subsequent creators is potentially covered by copyright.
7
So how does the accretive process of musical creativity fare in
the modern law and culture of copyright? How would the great
musical traditions of the twentieth century--jazz, soul, blues,
rock--have developed under today's copyright regime? Would they
have developed at all? How does the law apply to the new
musicians, remixers, and samplers who offer their work on the
Internet? Do the lines it draws fit with our ethics, our
traditions of free speech and commentary, our aesthetic
judgments? It would take a shelf of books to answer such
questions definitively. In this chapter, all I can do is suggest
some possibilities--using the history of a single song as my case
study.
8
-----------------------------------
9
On August 29th, 2005, a hurricane made landfall in Louisiana.
The forecasters called it "Hurricane Katrina," quickly shortened
to "Katrina" as its story took over the news. The New Orleans
levees failed. Soon the United States and then most of the world
was watching pictures of a flooded New Orleans, seeing pleading
citizens--mainly African-American--and a Keystone Cops response by
the Federal Emergency Management Agency. The stories from New
Orleans became more and more frightening. There were tales not
only of natural disaster--drownings, elderly patients trapped in
hospitals--but of a collapse of civilization: looting, murder and
rape, stores being broken into with impunity, rescue helicopters
fired upon, women and children sexually assaulted in the
convention center where many of the refugees huddled. Later, it
would turn out that many, perhaps most, of these reports were
untrue, but one would not have guessed that from the news
coverage.
10
The television played certain images over and over again.
People--again, mainly African-Americans--were portrayed breaking
into stores, pleading from rooftops, or later, when help still
had not arrived, angrily gesturing and shouting obscenities at
the camera.
11
As the disaster unfolded in slow motion, celebrities began
appearing in televised appeals to raise money for those who had
been affected by the storm. Kanye West, the hip hop musician,
was one of them. Appearing on NBC on September 2, with the
comedian Mike Myers, West started out seeming quietly upset.
Finally, he exploded.
12
I hate the way they portray us in the media. You see a black
family, it says, "They're looting." You see a white family, it
says, "They're looking for food." And, you know, it's been five
days [waiting for federal help] because most of the people are
black. . . . So anybody out there that wants to do anything that
we can help--with the way America is set up to help the poor, the
black people, the less well-off, as slow as possible. I mean,
the Red Cross is doing everything they can. We already realize a
lot of people that could help are at war right now, fighting
another way--and they've given them permission to go down and
shoot us!
13
Myers, who, according to the Washington Post, "looked like a guy
who stopped on the tarmac to tie his shoe and got hit in the
back with the 8:30 to LaGuardia," filled in with some comments
about the possible effect of the storm on the willingness of
Louisiana citizens to live in the area in the future. Then he
turned back to West, who uttered the line that came to epitomize
Katrina for many people around the world, and to infuriate a
large number of others. "George Bush doesn't care about black
people!" Myers, the Post wrote, "now look[ed] like the 8:30 to
LaGuardia turned around and caught him square between the
eyes."1 In truth, he did appear even more stunned than before,
something I would not have thought possible.
14
In Houston, Micah Nickerson and Damien Randle were volunteering
to help New Orleans evacuees at the Astrodome and Houston
Convention Center during the weekend of September 3. They, too,
were incensed both by the slowness of the federal response to
the disaster and by the portrayal of the evacuees in the media.
But Mr. Nickerson and Mr. Randle were not just volunteers, they
were also a hip-hop duo called "The Legendary K.O." What better
way to express their outrage than through their art? An article
in the New York Times described their response.
15
"When they got to Houston, people were just seeing for the
first time how they were portrayed in the media," said Damien
Randle, 31, a financial adviser and one half of the Legendary
K.O. "It was so upsetting for them to be up on a roof for two
days, with their kids in soiled diapers, and then see themselves
portrayed as looters." In response, Mr. Randle and his partner,
Micah Nickerson, wrote a rap based on the stories of the people
they were helping. On Sept. 6, Mr. Nickerson sent Mr. Randle an
instant message containing a music file and one verse, recorded
on his home computer. Mr. Randle recorded an additional verse
and sent it back, and 15 minutes later it was up on their Web
site: www.k-otix.com.2
16
The song was called "George Bush Doesn't Care About Black
People" (also referred to as "George Bush Doesn't Like Black
People"). Appropriately, given that Mr. West was the one to come
up with the phrase, the song was built around Mr. West's "Gold
Digger." Much of the melody was sampled directly from the
recording of that song. Yet the words were very different. Where
"Gold Digger" is about a predatory, sensual, and materialist
woman who "take[s] my money when I'm in need" and is a "triflin'
friend indeed," The Legendary K.O.'s song is a lyrical and
profane condemnation of the response to Katrina by both the
government and the media. Here is a sample:
17
Five days in this motherf__ attic
Can't use the cellphone I keep getting static
Dying 'cause they lying instead of telling us the truth
Other day the helicopters got my neighbors off the roof
Screwed 'cause they say they coming back for us too
That was three days ago, I don't see no rescue
See a man's gotta do what a man's gotta do
Since God made the path that I'm trying to walk through
Swam to the store, tryin' to look for food
Corner store's kinda flooded so I broke my way through
I got what I could but before I got through
News say the police shot a black man trying to loot
(Who!?) Don't like black people
George Bush don't like black people
George Bush don't like black people
18
This chapter is the story of that song. "George Bush Doesn't
Care About Black People" is the end (for the moment) of a line
of musical borrowing. That borrowing extends far beyond Kanye
West's song "Gold Digger." "Gold Digger" is memorable largely
because it in turn borrows from an even older song, a very
famous one written half a century before and hailed by many as
the birth of soul music. It is in the origins of that song that
we will start the trail.
19
I GOT A WOMAN
20
In 1955, Ray Charles Robinson, better known as Ray Charles,
released a song called "I Got a Woman." It was a defining moment
in Charles's musical development. Early in his career he had
unashamedly modeled himself on Nat King Cole.
21
I knew back then that Nat Cole was bigger than ever. Whites
could relate to him because he dealt with material they
understood, and he did so with great feeling. Funny thing, but
during all these years I was imitating Nat Cole, I never thought
twice about it, never felt bad about copying the cat's licks. To
me it was practically a science. I worked at it, I enjoyed it, I
was proud of it, and I loved doing it. He was a guy everyone
admired, and it just made sense to me, musical and commercial
sense, to study his technique. It was something like when a
young lawyer--just out of school--respects an older lawyer. He
tries to get inside his mind, he studies to see how he writes up
all his cases, and he's going to sound a whole lot like the
older man--at least till he figures out how to get his own shit
together. Today I hear some singers who I think sound like me.
Joe Cocker, for instance. Man, I know that cat must sleep with
my records. But I don't mind. I'm flattered; I understand. After
all, I did the same thing.3
22
In the early 50s Charles decided that he needed to move away
from Cole's style and find his own sound, "sink, swim or die."
But as with any musician, "his own sound" was the product of a
number of musical traditions--blues and gospel particularly. It
is out of those traditions that "I Got a Woman" emerged; indeed
it is that combination that causes it to be identified as one of
the birthplaces of soul music.
23
According to the overwhelming majority of sources, "I Got a
Woman" stems from a fairly overt piece of musical
borrowing--Charles reworded the hymn "Jesus Is All the World to
Me"--sometimes referred to as "My Jesus Is All the World to Me."
24
Musically, soul denotes styles performed by and for black
audiences according to past musical practices reinterpreted and
redefined. During its development, three performers played
significant roles in shaping its sound, messages, and
performance practice: Ray Charles, James Brown, and Aretha
Franklin. If one can pinpoint a moment when gospel and blues
began to merge into a secular version of gospel song, it was in
1954 when Ray Charles recorded "My Jesus Is All the World to
Me," changing its text to "I Got A Woman."4
25
That story is repeated in the biography on Charles's Web site.
"Charles reworded the gospel tune 'Jesus Is All the World to Me'
adding deep church inflections to the secular rhythms of the
nightclubs, and the world was never the same."5 Michael Lydon,
Charles's most impressive biographer, simply reports that "Jesus
Is All the World to Me" is described as the song's origin in
another published source,6 and this origin is cited repeatedly
elsewhere in books, newspaper articles, and online,7 though the
most detailed accounts also mention Renald Richard, Charles's
trumpeter, who is credited with co-writing the song.8
26
To secular ears, "Jesus Is All the World to Me" is a plodding
piece of music with a mechanical, up-and-down melodic structure.
It conjures up a bored (and white) church audience, trudging
through the verses, a semitone flat, while thinking about Sunday
lunch rather than salvation. It is about as far removed as one
could be from the syncopated beat and amorous subject matter of
"I Got a Woman." The hymn was the product of Will Lamartine
Thompson--a severe-looking fellow with a faint resemblance to an
elderly Doc Holliday--who died in 1909 and is buried in the same
place he was born, East Liverpool, Ohio. But the words have an
earnestness to them that gives life to the otherwise uninspired
verse.
27
Jesus is all the world to me, my life, my joy, my all;
He is my strength from day to day, without Him I would fall.
When I am sad, to Him I go, no other one can cheer me so;
When I am sad, He makes me glad, He's my Friend.
28
Reading those words, one can understand the sincerity that made
Mr. Thompson spurn commercial publishers for his devotional
music, instead founding his own publishing house (also in East
Liverpool) to make sure that his hymns reached the people. I can
quote as much of the song as I want without worrying about legal
consequences because the copyright on Mr. Thompson's lyrics has
expired. So has the copyright over the music. The song was
published in 1904. Copyright had only been extended to musical
compositions in 1881. Like all copyrights back then, copyright
over music lasted for only twenty-eight years, with a possible
extension for another fourteen. If Ray Charles did indeed reword
it fifty years later, he was doing nothing illegal. It had been
in the public domain for at least eight years, and probably for
twenty. Now maybe Charles's genius was to hear in this hymn, or
in a syncopated gospel version of this hymn, the possibility of
a fusion of traditions which would itself become a new
tradition--soul. Or perhaps his genius was in knowing a good
idea--Richard's--when he heard it, and turning that idea into the
beginnings of its own musical genre.
29
Soul is a fusion of gospel on the one hand and rhythm and blues
on the other. From gospel, soul takes the call-and-response
pattern of preacher and congregation and the wailing vocals of
someone "testifying" to their faith. From rhythm and blues it
takes the choice of instruments, some of the upbeat tempo, and
the distinctly worldly and secular attitude to the (inevitable)
troubles of life. Musicologists delight in parsing the patterns
of influence further; R&B itself had roots in "jump music" and
the vocal style of the "blues shouters" who performed with the
big bands. It also has links to jazz. Gospel reaches back to
spirituals and so on.
30
As with all music, those musical traditions can be traced back
or forward in time, the net of influence and borrowing widening
as one goes in either direction. In each, one can point to
distinctive musical motifs--the chords of the twelve-bar blues,
or the flattened fifth in bebop. But musical traditions are also
defined by performance styles and characteristic sounds: the
warm guitar that came out of the valve amplifiers of early funk,
the thrashing (and poorly miked) drums of '80s punk, or the
tinny piano of honky-tonk. Finally, styles are often built
around "standards"--classic songs of the genre to which an almost
obligatory reference is made. My colleague, the talented
composer Anthony Kelley, uses Henry Louis Gates's term
"signifyin' " to describe the process of showing you are
embedded in your musical tradition by referring back to its
classics in your playing. In jazz, for example, one demonstrates
one's rootedness in the tradition by quoting a standard, but
also one's virtuosity in being able to trim it into a particular
eight-bar solo, beginning and ending on the right note for the
current moment in the chord progression. "I Got Rhythm" and
"Round Midnight" are such songs for jazz. (The chord changes of
"I Got Rhythm" are so standard, they are referred to as "the
rhythm changes"--a standard basis for improvisation.) And to
stretch the connections further, as Kelley points out, the
haunting introduction to "Round Midnight" is itself remarkably
similar to Sibelius's Fifth Symphony.
31
Through all these layers of musical borrowing and reference, at
least in the twentieth century in the United States, runs the
seam of race. When white musicians "borrowed" from soul to make
"blue-eyed soul," when Elvis took songs and styles from rhythm
and blues and turned them into rockabilly, a process of racial
cleansing went on. Styles were adapted but were cleansed of
those elements thought inappropriate for a larger white
audience. Generally, this involved cutting some of the rawer
sensuality, removing racially specific verbal and musical
references, and, for much of the century, cutting the African-
American artists out of the profits in the process.
32
There is another irony here. Styles formed by patterns of
gleeful borrowing, formed as part of a musical commons--the blues
of the Mississippi Delta, for example--were eventually
commercialized and "frozen" into a particular form by white
artists. Sometimes those styles were covered with intellectual
property rights which denied the ability of the original
community to "borrow back." In the last thirty or forty years of
the century, African-American artists got into the picture too,
understandably embracing with considerable zeal the commercial
opportunities and property rights that had previously been
denied to them. But aside from the issue of racial injustice,
one has to consider the question of sustainability.
33
In other work, I have tried to show how a vision of intellectual
property rights built around a notion of the romantic author can
sometimes operate as a one-way valve vis-à-vis traditional and
collective creative work.9 There is a danger that copyright will
treat collectively created musical traditions as unowned raw
material, but will then prevent the commercialized versions of
those traditions--now associated with an individual artist--from
continuing to act as the basis for the next cycle of musical
adaptation and development. One wonders whether jazz, blues,
R&B, gospel, and soul would even have been possible as musical
styles if, from their inception, they had been covered by the
strong property rights we apply today. That is a question I want
to return to at the end of this chapter.
34
Musical styles change over time and so do their techniques of
appropriation. Sometimes musical generations find their
successors are engaging in different types of borrowing than
they themselves engaged in. They do not always find it
congenial. It is striking how often musicians condemn a younger
generation's practice of musical appropriation as theft, while
viewing their own musical development and indebtedness as benign
and organic. James Brown attacked the use of his guitar licks or
the drum patterns from his songs by hip-hop samplers, for
example, but celebrated the process of borrowing from gospel
standards and from rhythm and blues that created the "Hardest
Working Man in Show Business"--both the song and the musical
persona. To be sure, there are differences between the two
practices. Samplers take a three-second segment off the actual
recording of "Funky Drummer," manipulate it, and turn it into a
repeating rhythm loop for a hip-hop song. This is a different
kind of borrowing than the adaptation of a chord pattern from a
gospel standard to make an R&B hit. But which way does the
difference cut as a matter of ethics, aesthetics, or law?
35
Charles himself came in for considerable criticism for his
fusion of gospel intonations and melodic structures with the
nightclub sound of rhythm and blues, but not because it was
viewed as piracy. It was viewed as sacrilegious.
36
Charles totally removed himself from the polite music he had
made in the past. There was an unrestrained exuberance to the
new Ray Charles, a fierce earthiness that, while it would not
have been unfamiliar to any follower of gospel music, was almost
revolutionary in the world of pop. Big Bill Broonzy was
outraged: "He's crying, sanctified. He's mixing the blues with
the spirituals. He should be singing in a church."10
37
Charles disagreed. "You can't run away from yourself. . . . What
you are inside is what you are inside. I was raised in the
church and was around blues and would hear all these musicians
on the jukeboxes and then I would go to revival meetings on
Sunday morning. So I would get both sides of music. A lot of
people at the time thought it was sacrilegious but all I was
doing was singing the way I felt."11 Why the charge of
sacrilege? Because beyond the breach of stylistic barriers, the
relationships Charles described did not seem to belong in
church.
38
"I Got a Woman" tells of a woman, "way over town," who is good
to the singer--very good, in fact. She gives him money when he is
in need, is a "kind of friend indeed," even saves her "early
morning loving" just for him (and it is tender loving at that).
In the third verse we learn she does not grumble, fuss, or run
in the streets, "knows a woman's place is right there now in the
home," and in general is a paragon of femininity. Gender roles
aside, it is a fabulous song, from the elongated "We-e-ell . .
." in Charles's distinctive tones, to the momentary hesitation
that heightens the tension, all the way through the driving beat
of the main verses and the sense that a gospel choir would have
fit right in on the choruses, testifying ecstatically to the
virtues of Charles's lady friend. Charles liked women--a lot of
women, according to his biographers--and a lot of women liked him
right back. That feeling comes through very clearly from this
song.
39
I would like to quote the song lyrics for you, just as I did the
words of the hymn, but that requires a little more thought.
Charles's song was released in 1955. By that time, the copyright
term for a musical composition was twenty-eight years, renewable
for another twenty-eight if the author wished. (Later, the
twenty-eight-year second term would be increased to forty-seven
years. Still later, the copyright term would be extended to life
plus seventy years, or ninety-five years for a "work for hire."
Sound recordings themselves would not be protected by federal
law until the early 1970s.) Anyone who wrote or distributed a
song under the "28 ??28" system was, in effect, saying "this is
a long enough protection for me," enough incentive to create.
Thus, we could have assumed that "I Got a Woman" would enter the
public domain in either 1983 or, if renewed, 2011. Unfortunately
for us, and for a latter-day Ray Charles, the copyright term has
been extended several times since then, and each time it was
also extended retrospectively. Artists, musicians, novelists,
and filmmakers who had created their works on the understanding
that they had twenty-eight or fifty-six or seventy-five years of
protection now have considerably more. This was the point raised
in Chapter 1. Most of the culture of the twentieth century,
produced under a perfectly well-functioning system with much
shorter copyright terms, is still locked up and will be for many
years to come.
40
In the case of "I Got a Woman," it is now about fifty years
since the song's release--the same length of time as between
Thompson's hymn and Charles's alleged "rewording." If the words
and music were properly copyrighted at the time of its
publication, and renewed when appropriate, the copyright still
has forty-five years to run. No one will be able to "reword" "I
Got a Woman" and use it to found a new genre, or take
substantial portions of its melody, until the year 2050. The
freedoms Ray Charles says he used to create his song are denied
to his successors until nearly a century after the song's
release. (As we will see in a moment, this put certain
constraints on Kanye West.)
41
Would it truly be a violation of copyright for me to quote the
middle stanza in a nonfiction book on copyright policy? Not at
all. It is a classic "fair use." In a moment I will do so. But
it is something that the publisher may well fuss over, because
copyright holders are extremely aggressive in asking for
payments for the slightest little segment. Copyright holders in
music and song lyrics are among the most aggressive of the lot.
Year after year academics, critics, and historians pay fairly
substantial fees (by our standards) to license tiny fragments of
songs even though their incorporation is almost certainly fair
use. Many of them do not know the law. Others do, but want to
avoid the hassle, the threats, the nasty letters. It is simpler
just to pay.
42
Unfortunately, these individual actions have a collective
impact. One of the factors used to consider whether something is
a fair use is whether or not there is a market for this
particular use of a work. If there is, it is less likely to be a
fair use to quote or incorporate such a fragment. As several
courts have pointed out, there is a powerful element of
circularity here. You claim you have a right to stop me from
doing x--quoting two lines of your three-verse song in an
academic book, say. I say you have no such right and it is a
fair use. You say it is not a fair use because it interferes
with your market--the market for selling licenses for two-
sentence fragments. But when do you have such a market? When you
have a right to stop me quoting the two-sentence fragment unless
I pay you. Do you have such a right? But that is exactly what we
are trying to decide! Is it a fair use or not? The existence of
the market depends on it not being a fair use for me to quote it
without permission. To say "I would have a market if I could
stop you doing it, so it cannot be a fair use, so I can stop
you" is perfectly circular.
43
How do we get out of the circle? Often the court will look to
customs and patterns in the world outside. Do people accept this
as a market? Do they traditionally pay such fees? Thus, if a lot
of people choose to pay for quotes that actually should have
been fair use, the "market" for short quotes will begin to
emerge. That will, in turn, affect the boundaries of fair use
for the worse. Slowly, fair use will constrict, will atrophy.
The hypertrophied permissions culture starts as myth, but it can
become reality.
44
In any event, Ray Charles had no need of fair use to make "I Got
a Woman" because the hymn his biography claims it is based on
was in the public domain. But is that the real source? I can
hear little resemblance. As I researched the origins of "I Got a
Woman," I found claims that there was a different source, a
mysterious song by the Bailey Gospel Singers, or the Harold
Bailey Gospel Singers, called "I've Got a Savior."12 The
Columbia Records gospel catalogue even provided a catalogue
number.13 There was such a song, or so it seemed. But there the
research stalled. The exemplary librarians at Duke University
Music Library could find no trace. Catalogues of published
records showed nothing. Inquiries to various music librarian
listservs also produced no answer. There was a man called Harold
Bailey, who sang with a group of gospel singers, but though
several Internet postings suggested he was connected to the
song, his biography revealed he would have been only thirteen at
the time. The Library of Congress did not have it. Eventually,
Jordi Weinstock--a great research assistant who demonstrated
willingness to pester anyone in the world who might conceivably
have access to the recording--hit gold. The Rodgers and
Hammerstein Archives of Recorded Sound at the New York Public
Library for the Performing Arts had a copy--a 78 rpm vinyl record
by the Bailey Gospel Singers with "Jesus Is the Searchlight" on
the B-side. Our library was able to obtain a copy on
interlibrary loan from the helpful curator, Don McCormick.
45
It sounds like the same song. Not the same words, of course: the
introduction is different and the Bailey Gospel Singers lack the
boom-chicky-boom backing of Charles's version, but the central
melody is almost exactly the same. When the Bailey Gospel
Singers sing "Keeps me up / Keeps me strong / Teach me right /
When I doing wrong / Well, I've got a savior / Oh what a savior
/ yes I have," the melody, and even the intonation, parallel
Charles singing the equivalent lines: "She gimme money / when
I'm in need / Yeah she's a kind of / friend indeed / I've got a
woman / way over town / who's good to me."
46
True, some of the lyrical and rhythmic patterns of "I've Got a
Savior" are older still. They come from a spiritual called
"Ain't That Good News," dating from 1940, which rehearses all
the things the singer will have in the Kingdom of Heaven--a harp,
a robe, slippers (!), and, finally, a savior. The author of
"I've Got a Savior" was, like all the artists discussed here,
taking a great deal from a prior musical tradition.
Nevertheless, Charles's borrowing is particularly overt and
direct. The term "rewording" is appropriate. So far as I can
see, whether or not he also relied on a fifty-year-old hymn, Ray
Charles appears to have taken both the melody and lyrical
pattern of his most famous hit from a song that was made a mere
three or four years earlier.
47
Like many 78 rpm records, this one was sold without liner notes.
The center of the record provides the only details. It gives the
name of the track and the band and a single word under the song
title, "Ward"--presumably the composer. "Ward" might be Clara
Ward of the Ward Singers, a talented gospel singer and
songwriter who became Aretha Franklin's mentor and who had her
own music publishing company.
48
There is a particular reason to think that she might have
written the song: Ray Charles clearly liked to adapt her music
to secular ends. We know that he "reworked" Ward's gospel
classic "This Little Light of Mine" into "This Little Girl of
Mine." Ward reportedly was irritated by the practice. So far as
we know, the copying of the music did not annoy her because she
viewed it as theft, but because she viewed it as an offense
against gospel music.
49
Charles is now starting to get criticism from some gospel
music performers for secularizing gospel music and presenting it
in usual R&B venues. Most adamant in her misgivings is Clara
Ward who complains about "This Little Girl Of Mine" being a
reworking of "This Little Light Of Mine" (which it is), as a
slap against the gospel field.14
50
This stage of Charles's career is described, rightly, as the
moment when his originality bursts forth, where he stops
imitating the smooth sounds of Nat King Cole and instead
produces the earthy and sensual style that becomes his
trademark--his own sound. That is true enough; there had been
nothing quite like this before. Yet it was hardly original
creation out of nothing. Both Charles himself and the
musicological literature point out that "his own sound," "his
style," is in reality a fusion of two prior genres--rhythm and
blues and gospel. But looking at the actual songs that created
soul as a genre shows us that the fusion goes far beyond merely
a stylistic one. Charles makes some of his most famous songs by
taking existing gospel classics and reworking or simply
rewording them. "I've Got a Savior" becomes "I Got a Woman."
"This Little Light of Mine" becomes "This Little Girl of Mine."
51
The connection is striking: two very recent gospel songs,
probably by the same author, from which Charles copies the
melody, structure, pattern of verses, even most of the title--in
each case substituting a beloved sensual woman for the beloved
deity. Many others have noticed just how closely Charles based
his songs on gospel tunes, although the prevalence of the story
that "I Got a Woman" is derived from an early-twentieth-century
hymn caused most to see only the second transposition, not the
first.15 Borrowing from a fifty-year-old hymn and changing it
substantially in the process seems a little different from the
repeated process of "search and replace" musical collage that
Charles performed on the contemporary works of Clara Ward.
52
If I am right, Charles's "merger" of gospel and blues relied on
a very direct process of transposition. The transposition was
not just of themes: passion for woman substituted for passion
for God. That is a familiar aspect of soul.16 It is what allows
it to draw so easily from gospel's fieriness and yet coat the
religion with a distinctly more worldly passion. Sex, sin, and
syncopation--what more could one ask? But Charles's genius was to
take particular songs that had already proved themselves in the
church and on the radio, and to grab large chunks of the melody
and structure. He was not just copying themes, or merging
genres, he was copying the melodies and words from recent songs.
53
Was this mere musical plagiarism, then? Should we think less of
Ray Charles's genius because we find just how closely two of the
canonical songs in the creation of soul were based on the work
of his contemporaries? Hardly. "I Got a Woman" and "This Little
Girl of Mine" are simply brilliant. Charles does in fact span
the worlds of the nightclub at 3 a.m. on Sunday morning and the
church later that day, of ecstatic testimony and good old-
fashioned sexual infatuation. But the way he does so is a lot
more like welding, or bricolage, than it is like designing out
of nothing or creating anew while distantly tugged by mysterious
musical forces called "themes" or "genres." Charles takes bits
that have been proven to work and combines them to make
something new. When I tell engineers or software engineers this
story, they nod. Of course that is how creation works. One does
not reinvent the wheel, or the method of debugging, so why
should one reinvent the hook, the riff, or the melody? And yet
Charles's creation does not have the degraded artistic quality
that is associated with "mere" cut-and-paste or collage
techniques. The combination is greater than the sum of its
parts. If Charles's songs do not fit our model of innovative
artistic creativity, perhaps we need to revise the model--at
least for music--rather than devaluing his work.
54
When I began this study, it seemed to me that the greatest
challenge to copyright law in dealing with music was preventing
rights from "creeping," expanding from coverage of a single song
or melody to cover essential elements of genre, style, and
theme. In effect, we needed to apply the Jefferson Warning to
music, to defeat the constant tendency to confuse intellectual
property with real property, and to reject the attempts to make
the right holder's control total. My assumption was that all we
needed to do was to keep open the "common space" of genre and
style, and let new artists create their new compositions out of
the material in that commons and gain protection over them. In
many ways, Charles's work lies at the very core of the stuff
copyright wishes to promote. It is not merely innovative and
expressive itself, it also helped form a whole new genre in
which other artists could express themselves. But to create this
work, Charles needed to make use of a lot more than just genres
and styles created by others. He needed their actual songs. If
the reactions of Clara Ward and Big Bill Broonzy are anything to
go by, they would not have given him permission. To them, soul
was a stylistic violation, a mingling of the sacred with the
profane. If given a copyright veto over his work, and a culture
that accepts its use, Ward might well have exercised it. Like
the disapproving heirs that Macaulay talked about, she could
have denied us a vital part of the cultural record. Control has
a price.
55
Did Ray Charles commit copyright infringement? Perhaps. We would
have to find if the songs are substantially similar, once we had
excluded standard forms, public domain elements, and so on. I
would say that they are substantially similar, but was the
material used copyright-protected expression?
56
The Copyright Office database shows no entry for "I've Got a
Savior." This is not conclusive, but it seems to indicate that
no copyright was ever registered in the work. In fact, it is
quite possible that the song was first written without a
copyright notice. Nowadays that omission would be irrelevant.
Works are copyrighted as soon as they are fixed in material
form, regardless of whether any copyright notice is attached. In
1951, however, a notice was required when the work was
published, and if one was not put on the work, it passed
immediately into the public domain. However, later legislation
decreed that the relevant publication was not of the record, but
of the notation. If the record were pressed and sold without a
copyright notice, the error could be corrected. If a lead sheet
or a sheet music version of "I've Got a Savior" had been
published without notice or registration, it would enter the
public domain. It is possible that this happened. Intellectual
property rights simply played a lesser role in the 1950s music
business than they do today, both for better and for worse.
Large areas of creativity operated as copyright-free zones. Even
where copyrights were properly registered, permission fees were
not demanded for tiny samples. While bootlegged recordings or
direct note-for-note copies might well draw legal action,
borrowing and transformation were apparently viewed as a normal
part of the creative process. In some cases, artists simply did
not use copyright. They made money from performances. Their
records might receive some kind of protection from state law.
These protections sufficed.
57
But the lack of protection also had a less attractive and more
racially skewed side. African-American artists were less likely
to have the resources and knowledge necessary to navigate the
system of copyright. For both black and white artists, whatever
rights there were moved quickly away from the actual creators
toward the agents, record companies, and distributors. They
still do. But African-American musicians got an even worse deal
than their white counterparts. True, the copyright system was
only an infinitesimal part of that process. A much larger part
was the economic consequences of segregation and racial
apartheid. But copyright was one of the many levers of power
that were more easily pulled by white hands. This is an
important point because the need to end that palpable racial
injustice is sometimes used to justify every aspect of our
current highly legalized musical culture. About that conclusion,
I am less convinced.
58
In any event, it is possible that the musical composition for
"I've Got a Savior" went immediately into the public domain. If
that were the case, Ray Charles could draw on it, could change
it, could refine it without permission or fee. Certainly there
is no mention of seeking permission or paying fees in any of the
histories of "I Got a Woman." Indeed, the only question of
rectitude Charles was focused on was the stylistic one. Was it
appropriate to mix gospel and R&B, devotional music and secular
desire? Charles and Richard seemed to see the process of
rewording and adapting as just a standard part of the musician's
creative process. The only question was whether these two styles
were aesthetically or morally suited, not whether the borrowing
itself was illegal or unethical. So, whether they drew on a hymn
that had fallen into the public domain after the expiration of
its copyright term, or a gospel song for which copyright had
never been sought, or whether they simply took a copyrighted
song and did to it something that no one at the time thought was
legally inappropriate, Renald Richard and Ray Charles were able
to create "I Got a Woman" and play a significant role in
founding a new musical genre--soul.
59
One thing is clear. Much of what Charles and Richard did in
creating their song would be illegal today. Copyright terms are
longer. Copyright protection itself is automatic. Copyright
policing is much more aggressive. The musical culture has
changed into one in which every fragment must be licensed and
paid for. The combination is fatal to the particular pattern of
borrowing that created these seminal songs of soul.
60
That should give us pause. I return to the ideas of the
Jefferson Warning from Chapter 2 and the Sony Axiom from Chapter
4. Copyright is not an end in itself. It has a goal: to promote
the progress of cultural and scientific creativity. That goal
requires rights that are less than absolute. As Jessica Litman
points out, building in the intellectual space is different from
building in the physical space. We do not normally dismantle old
houses to make new ones. This point is not confined to music.
Earlier I quoted Northrop Frye: "Poetry can only be made out of
other poems; novels out of other novels. All of this was much
clearer before the assimilation of literature to private
enterprise."17 The question is, how big are the holes we need to
leave in the private rights? How large a commons do we need to
offer to future creators?
61
Ray Charles's creation of "I Got a Woman" is only one case. By
itself, it proves nothing. Yet, if we find that the seminal,
genre-creating artworks of yesteryear would be illegal under the
law and culture of today, we have to ask ourselves "is this
really what we want?" What will the music of the future look
like if the Clara Wards and Will Lamartine Thompsons of today
can simply refuse to license on aesthetic grounds or demand
payment for every tiny fragment? Tracing the line further back,
it is fascinating to wonder whether gospel, blues, and jazz
would have developed if musical motifs had been jealously
guarded as private property rather than developed as a kind of
melodic and rhythmic commons. Like most counterfactuals, that
one has no clear answer, but there is substantial cause for
skepticism. If copyright is supposed to be promoting innovation
and development in culture, is it doing its job?
62
AN INDUSTRY OF GOLD DIGGERS?
63
Fifty years after "I Got a Woman" was written, Kanye West
released "Gold Digger" on the album Late Registration. Mr. West
is an interesting figure in rap. At first he was shunned because
his clean-cut looks and preppy clothing ran against the gangster
image that often dominates the music. It is just hard imagining
Mr. West delivering a line like Rakim's "I used to be a stick-up
kid, so I think of all the devious things I did" with a straight
face. (Still less "Stop smiling, ain't nothin' funny, nothing
moves but the money.") Perhaps partly as a result, his lyrics
are oddly bipolar in their views about exaggerated masculinity
and the misogyny that sometimes accompanies it.
64
For the song, Mr. West recruited Jamie Foxx, who had played Ray
Charles in the movie Ray. Showing an impressive expanse of oiled
chest, Mr. Foxx imitates Charles's style and the melody of "I
Got a Woman" to provide the lyrical chorus to "Gold Digger." "I
Got a Woman" anchors West's song. It provides its melodic hook.
It breaks up the rap with a burst of musical nostalgia. But Mr.
West's gold digger is very different from Ray Charles's woman
friend. This woman does not give money when the singer is in
need. She takes his money when he is in need and is a "triflin'
friend indeed." Mr. Charles had a friend who gave him tender
morning loving. Jamie Foxx sings of a mercenary gold digger who
digs on him. When Mr. West adds the rap verses to the song, we
get a perfect caricature of such a person, uninterested in any
man who is broke, dragging around four kids and an entourage,
insisting all of them be entertained at her boyfriend's expense,
and wielding unfounded paternity suits like a proprietary
business method. Mr. West's repeated disclaimer "I ain't sayin'
she's a gold digger" is unconvincing, because both the words of
the introduction and the implicit message of the rap tell us she
is. We even get the absurd image of a man who is playing on the
winning side in the Super Bowl but driving a Hyundai, so
financially demanding is his girlfriend. At several points the
song descends into ludicrous--and perhaps conscious--self-mockery,
as it explores the concerns of the rich African-American
celebrity male. My favorite line is "If you ain't no punk,
holler 'We want prenup!!' " The audience obliges. It sounds like
assertiveness training for show business millionaires.
65
It would be hard to get a feminist role model out of either "I
Got a Woman" or "Gold Digger." One offers the feminine virtues
of modesty and fidelity, but magically combines them with
wantonness where the singer is concerned and an open checkbook.
The other is a parody of the self-assertive economic actor, as
rapacious as any multinational, who uses her sexuality for
profit. Put them together and you have bookends--male fantasy and
male nightmare. Was that Mr. West's point? Perhaps. The song
itself takes several sly turns. The gold digger dogging Mr. West
is used as part of a homily to black women on how to treat their
(noncelebrity) black men. They should stick with their man
because his ambition is going to take him from mopping floors to
the fryers, from a Datsun to a Benz. It seems that Mr. West is
getting a little preachy, while slamming the actual social
mobility available to black men. Moving from floor cleaning to
frying chicken is not actually going to provide a Mercedes. But
he immediately undercuts that tone twice, once by acknowledging
the boyfriend's likely infidelity and again by saying that even
if the black woman follows his homily, "once you get on, he
leave yo' ass for a white girl."
66
Mr. West has a tendency to make sudden turns like this in his
lyrics--ironically upsetting the theme he has just set up. So it
is not hard to imagine that he deliberately used a fragment of
Charles's song, not just because it sounded good but to contrast
the image of the fantasy woman from Charles's 1950s soul, who is
faithful, sensual, and always willing to offer a loan, with an
image from today's rap--sexually predatory and emasculating women
who are uninterested in men except as a source of money. Even
the retro cover of the single, with its 1950s-style pinup
drawing of a white model, seems to draw the connection. Did he
use Charles's song precisely because of these clashing cultural
snapshots? Perhaps, or perhaps he just liked the tune. In any
event, the contrast is striking. When it was released, Charles's
song was seen as a sacrilegious depiction of sensuality and the
woman was decried as a harlot. Compared to the woman in Mr.
West's song, she sounds like a Girl Scout. It is also a little
depressing. Ray Charles was neither an egalitarian metrosexual
nor a Prince Charming where women were concerned--anything but.
But as I said before, you do get a sense that he liked
women--however unrealistic or two-dimensional their portrayal. It
is hard to get that sense from "Gold Digger."
67
Was Mr. West legally required to ask permission--and pay, if
necessary--to use a fragment of "I Got a Woman" for his chorus?
The longest single piece of borrowing occurs in the
introduction: twenty-six words and their accompanying music.
"She takes my money, when I'm in need, oh she's a triflin'
friend indeed. Oh she's a gold digger, way over town, who digs
on me." As I pointed out, the lyrics from Charles's song present
a very different story. "She gimme money / when I'm in need /
Yeah she's a kind of / friend indeed / I've got a woman / way
over town / who's good to me." But even if the message is the
opposite, the musical borrowing is direct. It is also extensive.
During Mr. West's rap, the entire background melody is a loop of
Jamie Foxx singing the Ray Charles-inspired melody in the
background. During the song, Mr. Foxx returns to words that are
closer to Charles's original: "She gimme money, when I'm in
need," a refrain that is conspicuously at odds with the woman
being described by Mr. West. That eight-bar loop of a Ray
Charles melody runs throughout Kanye West's song.
68
Mr. West is very successful, so the fragment of the song was
"cleared"--payment was made to Charles's estate. It is
fascinating to think of what might have happened if Charles's
heirs had refused. After all, one could see West's song as a
crude desecration of Charles's earlier work, rather than a good-
humored homage. Since this is not a "cover version" of the
song--one which does not change its nature and thus operates
under the statutory licensing scheme--Charles's heirs would have
the right to refuse a licensing request. Unlike Clara Ward, it
is clear that Charles's heirs have the legal power to say no, to
prevent reuse of which they disapprove.
69
Was West legally required to license? Would all this amount to a
copyright violation? It is worth running through the analysis
because it gives a beautiful snapshot of the rules with which
current law surrounds musical creation.
70
Today, a song is generally covered by at least two copyrights.
One covers the musical composition--the sheet music and the
lyrics--and the other the particular sound recording of that
composition. Just as there are two kinds of copyrights, so there
are at least two kinds of borrowings that copyright might be
concerned with. First, one musical composition might infringe
another. Thus, for example, a court found that George Harrison
"subconsciously" based his song "My Sweet Lord" on the melody of
"He's So Fine" by the Chiffons.
71
How much does it take to infringe? That is a difficult question.
The law's standard is "substantial similarity," but not every
kind of similarity counts. Minimal or de minimis copying of tiny
fragments is ignored. Certain styles or forms have become
standards; for example, the basic chord structure of the twelve-
bar blues or the habit of introducing instruments one at a time,
from quietest to loudest. There are only so many notes--and so
many ways to rearrange them; inevitably any song will be similar
to some other. Yet that cannot mean that all songs infringe
copyright. Finally, even where there is substantial similarity
of a kind that copyright is concerned with, the second artist
may claim "fair use"--for parody or criticism, say. Copyright
law, in other words, has tried to solve the problem with which I
began the chapter. Because much of musical creativity is organic
and collective and additive, because it does use prior musical
expression, some copyright decisions have tried to carve out a
realm of freedom for that creativity, using doctrines with names
such as scènes à faire, merger, and fair use. This is yet
another example of judges trying to achieve the balance that
this book is all about--between the realm of the protected and
the public domain--recognizing that it is the balance, not the
property side alone, that allows for new creativity.
72
The second type of potential infringement comes when someone
uses a fragment of the earlier recording as part of the later
one, actually copying a portion of the recording itself and
using it in a new song. One might imagine the same rules would
be applied--de minimis copying irrelevant, certain standard forms
unprotected, and so on. And one would be wrong. In a case called
Bridgeport Music, which I will discuss in a moment, the Court of
Appeals ruled that taking even two notes of a musical recording
counts as potentially actionable copying. Where recordings are
concerned, in other words, there is almost no class of copying
so minimal that the law would ignore it. This is a terrible
decision, at least in my opinion, likely to be rejected by other
Circuits and perhaps even eventually by the Supreme Court. But
for the moment, it is a case that samplers have to deal with.
73
How does Kanye West fare under these rules? He may sample from
the actual recording of Mr. Charles's song. It is hard to tell.
He certainly copies portions of the melody. That means we have
to look at the copyright in the musical composition--the words
and the music of "I Got a Woman." For a copyright infringement,
one needs a valid copyright and evidence of copying, the amount
copied needs to be more than an insignificant fragment,
substantial similarity is required, and the similarity has to be
between the new work and the elements of the original that are
actually protected by copyright. Elements taken from the public
domain, standard introductions, musical clichés, and so forth,
do not get included in the calculation of similarity. Finally,
the copier can claim "fair use"--that his borrowing is legally
privileged because it is commentary, criticism, parody, and so
on.
74
Does Charles, or his record company, have a valid copyright in
the musical composition? One huge problem in copyright law is
that it is remarkably hard to find this out. Even with the best
will in the world, it is hard for an artist, musician, or
teacher to know what is covered by copyright and what is not.
Nowadays, all works are copyrighted as soon as they are fixed,
but at the time "I Got a Woman" was written one had to include a
copyright notice or the song went immediately into the public
domain. The Copyright Office database shows no copyright over
the words and music of "I Got a Woman." There are copyrights
over a variety of recordings of the song. If Mr. West is using a
fragment of the recording, these would affect him. But the
melody? It is possible that the underlying musical composition
is in the public domain. Finding out whether it is or is not
would probably cost one a lot of money.
75
Suppose that Mr. Charles has complied with all the formalities.
The words and music were published with a copyright notice. A
copyright registration was filed and renewed. Does Mr. West
infringe this copyright? That is where the discovery of the
Bailey Gospel Singers recording is potentially so important.
Charles only gets a copyright in his original creation. Those
elements taken from the public domain (if "I've Got a Savior"
was indeed in the public domain) or from other copyrighted songs
do not count. The irony here is that the elements that Kanye
West borrows from Ray Charles are almost exactly the same ones
Ray Charles borrows from the Bailey Gospel Singers. "I've got a
savior, Oh what a savior" becomes "I got a woman, way over town"
becomes "There's a Gold Digger, way over town." And of course,
the music behind those words is even more similar. When The
Legendary K.O. reached for Kanye West's song in order to
criticize Mr. Bush, they found themselves sampling Jamie Foxx,
who was copying Ray Charles, who was copying the Bailey Gospel
Singers, who themselves may have borrowed their theme from an
older spiritual.
76
GEORGE BUSH DOESN'T CARE . . .
77
Five damn days, five long days
And at the end of the fifth he walking in like "Hey!"
Chilling on his vacation, sitting patiently
Them black folks gotta hope, gotta wait and see
If FEMA really comes through in an emergency
But nobody seem to have a sense of urgency
Now the mayor's been reduced to crying
I guess Bush said, "N------'s been used to dying!"
He said, "I know it looks bad, just have to wait"
Forgetting folks was too broke to evacuate
N------'s starving and they dying of thirst
I bet he had to go and check on them refineries first
Making a killing off the price of gas
He would have been up in Connecticut twice as fast . . .
After all that we've been through nothing's changed
You can call Red Cross but the fact remains that . . .
George Bush ain't a gold digger,
but he ain't f--ing with no broke n------s
"George Bush Doesn't Care About Black People," The Legendary
K.O.
78
The song "George Bush Doesn't Care About Black People" was an
immediate sensation. Hundreds of thousands of people downloaded
it. Within days two different video versions had been made, one
by Franklin Lopez and another by a filmmaker called "The Black
Lantern." Both synchronized the lyrics of the song with news
clips of the disaster and unsympathetic footage of President
Bush apparently ignoring what was going on. The effect was both
hilarious and tragic. The videos were even more popular than the
song alone. The blogosphere was fascinated--entries were posted,
e-mails circulated to friends with the usual "you have to see
this!" taglines. In fact, the song was so popular that it
received the ultimate recognition of an Internet fad: the New
York Times wrote a story on it, setting the practice in
historical context.
79
In the 18th century, songwriters responded to current events
by writing new lyrics to existing melodies. "Benjamin Franklin
used to write broadside ballads every time a disaster struck,"
said Elijah Wald, a music historian, and sell the printed lyrics
in the street that afternoon. This tradition of responding
culturally to terrible events had almost been forgotten, Mr.
Wald said, but in the wake of Hurricane Katrina, it may be
making a comeback, with the obvious difference that, where
Franklin would have sold a few song sheets to his fellow
Philadelphians, the Internet allows artists today to reach the
whole world.18
80
Mr. Nickerson's and Mr. Randle's song started with Kanye West's
words--taken from the fundraiser with Mike Myers. "George Bush
doesn't care about black people." From there it launched into
the song. The background melody comes almost entirely from a
looped, or infinitely repeated, version of the hook that Kanye
West and Jamie Foxx had in turn taken from Ray Charles: "She
gimme money, when I'm in need. I gotta leave." Against that
background, The Legendary K.O. provide their profane and angry
commentary, part of which is excerpted above, with a chorus of
"George Bush don't like black people," in case anyone had missed
the point.
81
The videos differ in the issues they stress. Franklin Lopez's
movie is, rather pointedly given its theme, just black and
white. He uses ornate captions pages, reminiscent of silent film
from the 1920s, to make political points against the background
of the song and the news footage. As the captions read "Katrina
Rapidly Approaches," we cut to a shot of the hurricane. "The
President Ponders on What to Do." We have a shot of Mr. Bush
playing golf. "I Think I'll Ride This One Out." Mr. Bush is
shown relaxing on a golf cart, juxtaposed against pictures of
African-Americans wading through the floods. The captions add,
as an afterthought, "And Keep Dealing with the Brown People."
(Pictures of soldiers shooting.) When FEMA's Michael Brown is
shown--at the moment when Bush said "Brownie, you are doing a
hell of a job"--the captions comment mockingly, "The Horse Judge
to the Rescue."
82
Mr. Lopez's video obviously tries to use The Legendary K.O.'s
song to make larger political arguments about the country. For
example, it asserts that "in 2004 Bush diverted most of the
funds for the levees to the war in Iraq." Scenes reminiscent of
a Michael Moore documentary are shown. There are pictures of the
Iraq war, Halliburton signs, and shots of the president with a
member of the Saudi royal family. The captions accuse the
president of showing insensitivity and disdain to racial
minorities. One summarizes the general theme: "Since he was
elected president, George Bush's policies have been less than
kind toward Africans and Hispanics." Issues ranging from the
response to the Darfur massacres, No Child Left Behind, and the
attempted privatization of Social Security also make their
appearance. The video concludes by giving the donation
information for the Red Cross and saying that we are "onto"
Bush. A picture of a Klansman removing his hood is shown, with
the image manipulated so that the face revealed is Mr. Bush's.
83
The Black Lantern's video is just as angry, and it uses some of
the same footage, but the themes it picks up are different. It
starts with a logo that parodies the FBI copyright warning shown
at the beginning of movies: "WARNING: Artist supports
filesharing. Please distribute freely." That dissolves into a
picture of Kanye West and Mike Myers. West is speaking, somewhat
awkwardly as he goes "off script," and at first Mr. Myers is
nodding, though he starts to look increasingly worried. West
says, "I hate the way they portray us in the media. You see a
black family it says they are looting. You see a white family,
it says they are looking for food." Finally, West says "George
Bush doesn't care about black people" and the camera catches
Myers's mute, appalled reaction. Then the song begins. The film
cuts repeatedly between a music video of Mr. Foxx as he sang the
lines for "Gold Digger" and the news coverage of the debacle in
New Orleans. At one point the music pauses and a news anchor
says, "You simply get chills when you look at these people. They
are so poor. And so black." The song resumes. Here the message
is simpler. The media coverage is biased and governmental
attention slowed because of negative racial stereotypes and lack
of concern about black people.
84
Some readers will find that this song and these videos capture
their own political perspectives perfectly. They will love the
bitterly ironic and obscene outrage at the government's failure,
the double standards of the press, and the disproportionate and
callously disregarded impact on the poor and black. Others will
find both song and films to be stupid, insulting, and
reductionist--an attempt to find racial prejudice in a situation
that, at worst, was an example of good old-fashioned
governmental incompetence. Still others will find the language
just too off-putting to even think about the message. Whatever
your feelings about the content, I urge you to set them aside
for a moment. For better or worse, Mr. Bush just happened to be
president at the moment when the Internet was coming into its
own as a method of distributing digitally remixed political
commentary, which itself has recently become something that
amateurs can do for pennies rather than an expensive activity
reserved to professionals. The point is that whatever rules we
apply to deal with "George Bush Doesn't Care About Black People"
will also apply to the next video that alleges corruption in a
Democratic administration or that attacks the sacred cows of the
left rather than the right. How should we think about this kind
of activity, this taking the songs and films and photos of
others and remixing them to express political, satirical,
parodic, or simply funny points of view?
85
SAMPLING
86
Let us begin with the music. Unlike the other songs I have
discussed here, with the possible exception of Mr. West's,
"George Bush Doesn't Care About Black People" makes use of
digital samples of the work of others. In other words, this is
not merely about copying the tune or the lyrics. The reason that
Mr. Nickerson and Mr. Randle could make and distribute this song
so fast (and so cheaply) is that they took fragments from the
recording of "Gold Digger" and looped them to form the
background to their own rap. That was also part of the reason
for the positive public reaction. Kanye West (and Ray Charles
and Clara Ward) are very talented musicians. West's song was
already all over the airwaves. The Legendary K.O. capitalized on
that, just as Benjamin Franklin capitalized on the familiarity
of the songs he reworded. But where Franklin could only take the
tune, The Legendary K.O. could take the actual ones and zeros of
the digital sound file.
87
As I mentioned earlier, there are two types of copyright
protection over music. There is the copyright over the musical
composition and, a much more recent phenomenon, the copyright
over the actual recording. This song potentially infringes both
of them.
88
Readers who came of age in the 1980s might remember the music of
Public Enemy and N.W.A.--a dense wall of sound on which rap
lyrics were overlaid. That wall of sound was in fact made up of
samples, sometimes hundreds of tiny samples in a single track.
Rap and hip-hop musicians proceeded under the assumption that
taking a fragment of someone else's recording was as acceptable
legally (and aesthetically) as a jazz musician quoting a
fragment of another tune during a solo. In both cases, the use
of "quotation" is a defining part of the genre, a harmless or
even complimentary homage. Or so they thought.
89
In a 1991 case called Grand Upright, that idea was squashed.19
The rap artist Biz Markie had extensively sampled Gilbert
O'Sullivan's song "Alone Again (Naturally)" for his own song
"Alone Again." The court could have applied the rules described
earlier in this chapter, decided whether or not this was a large
enough usage to make the second song substantially similar to
the original, discussed whether or not it counted as a fair use,
whether Markie's use was transformative or parodic, whether it
was going to have a negative impact on the market for the
original, weighed the issues, and ruled either way. In doing so,
there would have been some nice points to discuss about whether
or not the breadth of fair use depends in part on the practice
in the relevant artistic community, how to understand parodic
reference, or the relevant markets for the work. (Biz Markie's
lawyers had asked for permission to use the sample, but the
Supreme Court has made clear that seeking permission does not
weigh against a defense of fair use.) There were also some
tricky issues about the breadth of legal rights over
recordings--the right was of relatively recent creation and had
some interesting limitations. Underlying it all was a more
fundamental question: how do we interpret the rules of copyright
so as to encourage musical creativity? After all, as this
chapter has shown, borrowing and reference are a fundamental
part of musical practice. We ought to think twice before
concluding they are illegal. Are we to criminalize jazz? Condemn
Charles Ives? And if not, what is the carefully crafted line we
draw that allows some of those uses but condemns this one?
90
Judge Duffy, however, was uninterested in any of these
subtleties.
91
"Thou shalt not steal" has been an admonition followed since
the dawn of civilization. Unfortunately, in the modern world of
business this admonition is not always followed. Indeed, the
defendants in this action for copyright infringement would have
this court believe that stealing is rampant in the music
business and, for that reason, their conduct here should be
excused. The conduct of the defendants herein, however, violates
not only the Seventh Commandment, but also the copyright laws of
this country.20
92
If this were a law school exam, it would get a "D." (Maybe a C
given grade inflation.) Duffy makes all of the errors Jefferson
warned us against. Tangible property is the same as intellectual
property. Songs are the same as sheep and the same rules can
apply to both. Theft is theft. The prior injunctions of the
framers and the courts notwithstanding, we do not need to think
carefully about the precise boundaries of intellectual property
rights or worry that interpreting them too broadly is as bad as
making them too narrow. So far as Judge Duffy is concerned, the
tablets on Mount Sinai were inscribed with an absolute
injunction against digital sampling. (The font must have been
small.) But to say all this is merely to scratch the surface of
how regrettable a decision it is. In the narrowest and most
formalistic legal terms it is also very poor.
93
Judge Duffy gives not a single citation to the provisions of the
Copyright Act. He ignores issues of de minimis copying,
substantial similarity, fair use, and the differences between
the right over the recording and that over the composition. In
fact, he quotes the Bible more, and more accurately, than he
does Title 17 of the U.S. Code--the Copyright Act. The one
mention he makes of actual copyright law is at the end of the
opinion, when he refers the case for criminal prosecution! When
I first read this case, I seriously wondered for a moment if it
were a crude parody of a legal opinion written by someone who
had never been to law school.
94
Is the result in this case wrong? Personally, I do not think so.
It is possible, even probable, that a conscientious judge who
bothered to read the law could go through a careful analysis and
find that Markie's use went beyond de minimis copying, that it
was neither creative, parodic, nor short enough to count as a
fair use. The judge might have presumed a negative effect on the
market for Mr. O'Sullivan's song and thus could have ruled that
it was a copyright infringement. In doing so, the judge would
have to give some guidance to future courts about digital
sampling. The most likely guidance would be "the sample here is
so extensive and so unchanged, that this case says little about
the wider musical practice of sampling." Judge Duffy's opinion
was poor not because of the result he reached, but because he
reached it in an overly broad and judicially inappropriate way
that became a guideline for future cultural creation. Worse
still, the industry listened to him.
95
In excellent books on this issue, Kembrew McLeod and Siva
Vaidhyanathan each argue that Grand Upright was a disaster for
rap music.21 The industry's practice turned full circle almost
overnight. Now every sample, no matter how tiny, had to be
"cleared"--licensed from the owners of the recording. As they
tell the story, this "legal" change caused an aesthetic change.
The number of samples in an average song dropped precipitously.
The engaging complexity of the Public Enemy "wall of sound" gave
way to the simplistic thumping beat and unimaginative
synthesizer lines of modern rap. I must admit to sharing
McLeod's and Vaidhyanathan's musical prejudices. The causal
claim is harder to substantiate, but industry lawyers and
musicians both agree that changes in the industry's
understanding of the law had a major role in transforming the
practice of sampling.
96
If we disregard the Jefferson Warning and assume the recording
artist has absolute property rights over his work, then we could
ignore the idea that forcing people to pay for stuff they take
might have a negative effect on future art and culture. Theft is
theft. I might be able to make art much more easily if I did not
have to pay for the paint and canvas, but that is not commonly
held to excuse shoplifting from art stores. But if we take the
Jefferson Warning seriously, then intellectual property's job is
to balance the need to provide incentives for production and
distribution with the need to leave future creators free to
build upon the past. Reasonable minds will differ on where this
line is to be drawn, but the process of drawing it is very
different from the process Judge Duffy had in mind.
97
For fifteen years, critics of the decision waited for an appeals
court to fix the law in this area. When the case of Bridgeport
Music, Inc. v. Dimension Films came up, they thought they had
what they wanted. The band NWA had used a tiny fragment (less
than two seconds) consisting of three notes of a guitar solo
from the George Clinton song "Get Off Your Ass and Jam." The
fragment was an arpeggiated chord, which simply means that you
strike the notes of the chord individually and in sequence. It
was, in fact, a pretty standard "deedly" sound, familiar from
many guitar solos. NWA then heavily distorted this fragment and
looped it so that it played in the background of one part of the
song--so faintly that it is almost impossible to hear and
completely impossible to recognize. (With the distortion it
sounds like a very faint and distant police siren.) A company
called Bridgeport Music owned the sound recording copyright over
the Clinton song. They sued. NWA's response was predictable--this
was classic de minimis copying, which the law did not touch. One
did not even have to get to the issue of fair use (though this
surely would be one).
98
The appeals court did not waste any time attempting to dignify
Judge Duffy's decision in Grand Upright.
99
Although Grand Upright applied a bright-line test in a
sampling case, we have not cited it as precedent for several
reasons. First, it is a district court opinion and as such has
no binding precedential value. Second, although it appears to
have involved claims for both sound recording and musical
composition copyright infringement, the trial judge does not
distinguish which he is talking about in his ruling, and appears
to be addressing primarily the musical composition copyright.
Third, and perhaps most important, there is no analysis set
forth to indicate how the judge arrived at his ruling, which has
resulted in the case being criticized by commentators.22
100
They did like one thing about the decision, however: its bright-
line rule, "Thou Shalt Not Steal." (Lawyers use the term
"bright-line rule" to refer to a rule that is very easy to apply
to the facts. A 55 mph speed limit is a bright-line rule.) The
Bridgeport court rejected the idea that sound recording
copyrights and music composition copyrights should be analyzed
in the same way. They wanted to set a clear rule defining how
much of a sound recording one could use without permission. How
much? Nothing. To be precise, the court suggests in a footnote
that taking a single note might be acceptable since the
copyright protection only covers a "series." Anything more,
however, is clearly off limits.
101
Though they come to a conclusion that, if anything, is more
stringent than Judge Duffy's, they do so very differently. In
their words, "Get a license or do not sample." Effectively, the
court concludes that the sound recording copyright is different
enough from the composition copyright that a court could
reasonably conclude that a different analysis is required. The
judges are fully aware that copyright must balance encouraging
current creators and leaving raw material to future creators--the
Jefferson Warning holds no novelty for them. But they conclude
that a clear "one-note rule" will do, because if the costs of
licenses are too high, samplers can simply recreate the riff
themselves, and this will tend to keep prices reasonable.
102
This is an interesting idea. Why does this not happen more
often? Why do samplers not simply recreate James Brown's
drumbeat from "Funky Drummer," or George Clinton's solo from
"Get Off Your Ass and Jam"? Musicians offer lots of different
answers. They do not understand the distinction the court is
drawing, so the market never develops. The samples themselves
cannot be replicated, because the music has all kinds of
overtones from the historical equipment used and even the
methods of recording. Fundamentally, though, the answer seems to
be one of authenticity, ironically enough. The original beats
have a totemic significance--like the great standard chord
sequences in jazz. One cannot substitute replicas for James
Brown's funkiness. It just would not be the same. As Walter
Benjamin pointed out long ago in "The Work of Art in the Age of
Mechanical Reproduction," cheap copying actually increases the
demand for authenticity.23 The court's economic analysis--which
imagines a world of fungible beats produced for music as a
consumer good--deals poorly with such motivations.
103
When the court first released its decision, it was greeted with
concern even by recording industry representatives who might
have been expected to favor it, because it appeared to do away
with not only the de minimis limitation on copyright (some
portions are just too small to count as "copying") but the fair
use provisions as well. The court took the very unusual step of
rehearing the case and amending the opinion, changing it in a
number of places and adding a paragraph that stated that when
the case went back to the district court, the judge there was
free to consider the fair use defense. Of course, if one takes
this seriously--and, for the constitutional reasons given in
Chapter 5, I agree that the court has no power to write fair use
out of the statute--it undermines the supposedly clear rule. If
the factors of fair use are seriously applied, how can a three-
note excerpt ever fail to be fair use? And if we always have to
do a conventional fair use analysis, then the apparent clarity
of the one-note rule is an illusion.
104
The Bridgeport decision is a bad one, I believe. Among other
things, it fails to take seriously the constitutional
limitations on copyright--including the originality requirement
and the First Amendment. (A three-note sample is not original
enough to be protected under copyright law, in my view. There
are also more speech-related issues in sampling than the court
seems to realize.) The competitive licensing market the court
imagines seems more like economic fantasy than reality. I think
the ruling sets unnecessary barriers on musical creation and
ends up with a rule that is just as blurry as the one it
criticizes. I think the court's reading of the statute and
legislative history is wrong--though I have not bored you with
the full details of that argument. But I want to be clear that
it is a very different kind of bad decision from Judge Duffy's.
105
The court in Bridgeport does see copyright as a balance. It does
understand the need for future creators to build on the past,
but it also shows that a simple willingness to look upon
intellectual property protections in a utilitarian way does not
solve all problems. It certainly does not proceed from
Jefferson's presumption that intellectual property protections
should be interpreted narrowly. Though it claims to have a
"literal" reading of the statute, the real driving force in the
analysis is an unconsummated desire for bright-line rules and a
belief that the market will solve these problems by itself. The
court also suggests that "[i]f this is not what Congress
intended or is not what they would intend now, it is easy enough
for the record industry, as they have done in the past, to go
back to Congress for a clarification or change in the law." Note
the assumption that "the record industry" is the most reliable
guide to Congress's intentions or that it is the only entity
affected by such a rule. This is truly the image of copyright
law as a contract among affected industries. Of course, digital
artists such as The Legendary K.O. hardly fit within such a
model.
106
Under the rule in Bridgeport--"Get a license or do not
sample"--Mr. Randle and Mr. Nickerson appear to be breaking the
law. They did not get a license and they most definitely did
sample. What about fair use?
107
Under fair use, copyright allows a very specific (and possibly
lengthy) use of another's material when the purpose is parody of
that prior work itself. The Supreme Court gave parody a unique
status in the Acuff-Rose case. The (extremely profane) rap group
2 Live Crew had asked for permission to produce a version of Roy
Orbison's "Pretty Woman." But where Orbison sang about the
pretty woman walking down the street whom he would like to meet,
2 Live Crew wrote about a "big hairy woman" ("with hair that
ain't legit, 'cause you look like Cousin It"). They sang about a
"bald headed" woman with a "teeny weeny afro." They sang about
group sex with both women. Finally, they told a "two timin'
woman," "now I know the baby ain't mine." Justice Souter showed
the characteristic sangfroid of a Supreme Court justice faced
with raunchy rap music.
108
While we might not assign a high rank to the parodic element
here, we think it fair to say that 2 Live Crew's song reasonably
could be perceived as commenting on the original or criticizing
it, to some degree. 2 Live Crew juxtaposes the romantic musings
of a man whose fantasy comes true, with degrading taunts, a
bawdy demand for sex, and a sigh of relief from paternal
responsibility. The later words can be taken as a comment on the
naiveté of the original of an earlier day, as a rejection of its
sentiment that ignores the ugliness of street life and the
debasement that it signifies. It is this joinder of reference
and ridicule that marks off the author's choice of parody from
the other types of comment and criticism that traditionally have
had a claim to fair use protection as transformative works.24
[emphasis added]
109
Truly, the law can confront and master all cultural forms. The
heart of parody as the Supreme Court described it is that one is
taking aim at the original. Because 2 Live Crew could be seen as
directing their song at Orbison's original, rather than using
Orbison's song to make some other political or social point, the
court was willing to give it the favorable consideration that
parody receives as a fair use.
110
Does "George Bush Doesn't Care About Black People" fit that
model? The Legendary K.O. were not "taking aim" at "Gold
Digger." True, they quoted West's actual words from the
television broadcast (also copyrighted). They even used them as
their title. But they were not taking aim at his song.
(Ironically, Kanye West has a better claim that he was taking
aim at Ray Charles's picture of womanhood, in just the way
described in the 2 Live Crew case.) Rather, The Legendary K.O.
were using the sample of the song as the backing to an entirely
different rap that expressed, in familiar and popular musical
form, a more expansive version of his condemnation of both press
and president. That does not end the inquiry. Parody is not the
only form of protected criticism or commentary. But it makes it
much harder for them to succeed, particularly in light of the
hostility toward sampling betrayed by both Grand Upright and
Bridgeport.
111
The videos made by The Black Lantern and Franklin Lopez present
an even more complex set of questions. On top of the music
copyright issues, we also have fair use claims for the extensive
news footage and footage of Mr. Foxx. The Black Lantern also
used some fragments of a popular video by Jib-Jab, which had a
cartoon Bush and Kerry singing dueling parodied versions of
Woody Guthrie's "This Land." When JibJab's video first came out,
the Guthrie estate claimed copyright infringement over the song.
Assisted by a number of public interest legal groups, JibJab
claimed fair use. (It eventually came out that the copyright
over the song was no longer valid.) What did Jib-Jab do when The
Black Lantern sampled them in their turn? In a move that both
wins the prize for hypocrisy and serves to sum up the
intersection of law and culture I have been describing, they
sent him a cease and desist letter. The video was taken down for
a week and he was eventually forced to remove the segment of
their video from his work. Fair use for me, but not for thee.
112
CONCLUSION
113
The Legendary K.O. samples Kanye West, who uses a fragment from
Ray Charles, who may have taken material from Will Lamartine
Thompson or, more likely, from Clara Ward (who herself borrowed
from a gospel standard). The chain of borrowing I describe here
has one end in the hymns and spirituals of the early 1900s and
the other in the twenty-first century's chaotic stew of digital
sampling, remix, and mashup. Along the way, we have the
synthesis of old and the invention of new musical genres--often
against the wishes of those whose work is serving as the raw
material. One way of viewing this story is that each of these
musicians (except for some imaginary original artist, the
musical source of the Nile) is a plagiarist and a pirate. If
they are licensing their material or getting it from the public
domain, then they may not be lawbreakers but they are still
unoriginal slavish imitators. If one's image of creativity is
that of the romantic, iconoclastic creator who invents the world
anew with each creation, those conclusions seem entirely
appropriate. The borrowing here is rampant. Far from building
everything anew, these musicians seem quite deliberately to base
their work on fragments taken from others.
114
It is important to remember that copyright does not subscribe
completely to the idea of romantic creation where music is
concerned. As I pointed out earlier, musical genres develop out
of other genres: soul from gospel and rhythm and blues; gospel
from spirituals; rhythm and blues from jazz, jump music, and
Delta blues; and so on. When it comes to genres, we can play the
game of musicological "six degrees of separation" all day long.
Copyright is supposed to leave "holes" in its coverage so that
the genre is not covered, only the specific form of creativity
within the genre. I mentioned before the need to keep the lines
of genre and form open, to keep them free from private property
rights in order to allow musicians to develop the form by using
them as common property, the "highways" of musical progress. So,
for example, the twelve-bar blues uses the first, fourth, and
fifth chords in a scale. That sequence cannot be owned, unless
blues is to become impossible or illegal. Bebop is characterized
by copious use of the flattened fifth--a sound which was jarring
to audiences when it was first introduced and which marked the
break with the more accessible jazz of swing and the big bands.
The flattened fifth is not owned. These characteristic genre-
creating sequences or sounds are supposed to be left in the
public domain, though increasingly some scholars--including
me--are coming to believe that we have managed to make the
copyright holder's control so complete and so granular as to
close those common areas and impede the development of future
musical forms. The Bridgeport court might extend its logic and
imagine that the entire musical commons could be licensed, of
course. The presence of other chord sequences would keep the
price down! But up to now, we have not gone that far. In theory
at least, copyright is not supposed to stop the next Ray
Charles, the person who wants to fuse two older forms of music
to create a third.
115
Yet the chain of borrowing that links The Legendary K.O., Kanye
West, Ray Charles, and the Bailey Gospel Singers is of a
different kind. This borrowing involves taking chunks of prior
musicians' melodies, their words, their lyrical patterns. This
is not just copying the genre. It is copying the lines of the
song within the genre. This is the kind of stuff copyright is
supposed to regulate even when it is working well. And yet,
listening to the sequence, it is hard to deny that at each stage
something artistic and innovative, something remarkable, has
been created. In fact, the story of this song is the striking
ability of each set of artists to impose their own sound,
temperament, spirituality, humor, vision of women, or, in the
case of The Legendary K.O., their intense and profane political
anger, onto the musical phrases they have in common.
116
The postmodern conclusion here is "there is nothing new under
the sun"--that all creation is re-creation, that there is no such
thing as originality, merely endless imitation. If this is meant
to be a comment about how things get created, at least in music,
I think there is some truth to it. But if it is a claim about
aesthetic worth, a denial that there are more and less creative
individuals in the arts, I find it as facile and unconvincing as
its romantic authorial opposite.
117
What is fascinating about the artists I describe here is that,
while they do not fit neatly into either the aesthetic ideal of
independent creation or the legal model for how creative
expression gets made, they each have a remarkable, palpable
creativity. Each leaves us with something new, even if formed
partly from the fragments of the past. One could describe Ray
Charles as the merest plagiarist--making "search and replace"
songs by substituting a woman for the deity in already-
established hits. But if that is our conclusion, it merely
proves that our theories of aesthetics are poorer than the
creativity they seek to describe. So much the worse for the
theories.
118
As Jefferson pointed out, the lines surrounding intellectual
property are hard to draw--something the Bridgeport court got
right. When we draw them, whether legally or as a matter of
aesthetic morality, we do so partly with standard instances in
mind. "Well, that can't be wrong," we think to ourselves, and
reason by analogy accordingly. Yet the process of analogy fails
us sometimes, because the types of borrowing change over time.
119
Ray Charles was frank about the way he copied the style and
licks of Nat King Cole like an apprentice learning from a
lawyer. But he and his estate assiduously guarded his copyrights
against more modern borrowing they found to be inappropriate.
Judge Duffy thunderously denounces Biz Markie. It is harder to
imagine him leveling the same condemnation at Dizzy Gillespie,
Charles Ives, Oscar Peterson, or, for that matter, Beethoven,
though all of them made copious use of the works of others in
their own. It is bizarre to imagine a Bridgeport-like rule being
extended to composition copyrights and applied to music such as
jazz. "Get a license or do not solo"? I think not. Does it make
any more sense for sampling?
120
If there is a single reason I told the story of these songs it
is this: to most of us, certainly to me, the idea that copyright
encourages creativity and discourages the reuse of material
created by others seems reasonable. Of course, I would want to
apply the correctives implied by the Jefferson Warning--to make
sure the rights were as short and as narrow as possible. But at
least when it comes to copying chunks of expression still
covered by copyright, our intuitions are to encourage people to
create "their own work," rather than to rely on remix. What does
that mean in the world of music? As the story I have told here
seems to illustrate, even musicians of unquestioned
"originality," even those who can make a claim to having created
a new musical genre, sometimes did so by a process rather more
like collage than creation out of nothing, taking chunks of
existing work that were proven to work well and setting them in
a new context or frame.
121
Imagine Ray Charles trying to create "I Got a Woman" today. Both
of his possible sources would be strongly and automatically
protected by copyright. The industries in which those works were
produced would be much more legalistic and infinitely more
litigious. The owners of those copyrights could use them to stop
him from "desecrating their work"--which is literally what he is
doing. We know Clara Ward objected to Charles's other borrowings
from gospel. I cannot imagine Will Lamartine Thompson or his
worthy neighbors in East Liverpool looking kindly on the sweet
"early morning loving" outside of wedlock described in "I Got a
Woman," still less the use of sacred music to glorify it. And
copyright gives them the power to say no. Remember Macaulay's
description of how Richardson's novels might have been censored
by a moralistic heir? Even if the objections were not vetoes,
but simple demands for payment, would we get "I Got a Woman" and
"This Little Girl of Mine"? Given the extent of the borrowing
that jump-started this particular genre-bridging effort, would
we be likely to see the birth of soul music?
122
Congress assures us that the many increases in copyright
protection have been in the name of encouraging creativity. The
music industry says the same thing when its pettifogging
clearance procedures and permission culture are criticized. But
do we really think we are more likely to get a twenty-first-
century Ray Charles, or a fusion of styles to create a new
genre, in the world we have made? Do we really think that the
formalist ignorance of Judge Duffy or the market optimism of the
Bridgeport court, in which thick markets offer fungible sets of
samples to be traded like commodities, are good guides for the
future of music? Are we in fact killing musical creativity with
the rules that are supposed to defend it?
123
An Internet optimist would tell us that is precisely the point.
True, because of the errors described in the chapter on the
Jefferson Warning, and the mistakes catalogued in the chapters
on the Internet Threat and the Farmers' Tale, we have
dramatically expanded the scope, length, and power of the rights
that are supposed to shape our creative culture. But technology
cures all. Look at The Legendary K.O., The Black Lantern, or
Franklin Lopez. They are all probably breaking the law as it is
currently interpreted by the courts. But their work can be
created for pennies and distributed to millions. The technology
allows people to circumvent the law. Admittedly, some of the
copyright holders will police their rights assiduously--think of
JibJab's newfound dislike of fair use and their power to alter
The Black Lantern's video. But others either cannot or will not.
Kanye West's representatives in particular are unlikely to be
stupid enough to sue The Legendary K.O. in the first place.
Internet distribution becomes a demimonde in which the rules of
the rest of the society either cannot or will not be enforced.
Art gets its breathing room, not from legal exceptions, but from
technological enforcement difficulties. Finally, as more and
more people can create and distribute digital culture, they are
less likely to understand, believe in, or accept rules that are
strongly at variance with their aesthetic and moral assumptions.
124
There is a lot to these points. The technology does transform
the conditions of creativity, and sometimes it runs right over
the law in the process. Thousands, even millions, can be reached
outside of conventional distribution channels with work that is
technically illegal. And attitudes toward creative propriety do
not track legal rules. When I wrote to Mr. Randle and Mr.
Nickerson, I found that they realized Mr. West probably had a
legal right to get their work taken down, but they felt he would
not use it, and they had a very commonsensical conception of
what they ought to be allowed to do. They were not making any
money from this. They were making a political point, drawing
attention to a political and human problem. That made it okay.
They would have liked more formal permission so that they could
actually distribute CDs through conventional for-profit
channels, perhaps with some portion of the proceeds going to
disaster relief, but they understood they were unlikely to get
it.
125
Despite all this, I am uncomfortable with the argument "do not
worry, technology will allow us to evade the rules where they
are stupid." A system that can only function well through
repeated lawbreaking is an unstable and dangerous one. It breeds
a lack of respect for the law in those who should be its
greatest supporters and beneficiaries. It blurs civil
disobedience and plain old lawbreaking. Sitting in on the
segregated lunch counter and being willing to face the
consequences is very different from parking in the disabled
space and hoping you can get away with it. It also blurs our
judgment of conduct. Whatever one thinks of them, The Legendary
K.O. are doing something very different than a college student
who just does not want to pay for music and downloads thousands
of tracks for free from file sharing networks.
126
The problem is not simply one of blurring. Technology-based
"freedoms" are not reliable (though legal ones, too, may fail).
In a pinch, the technology may not save you, as thousands of
those same downloaders have found out when sued by the RIAA and
forced to pay thousands of dollars for an activity they thought
to be private and anonymous. The Internet "solution" also leaves
certain types of artistic creation dependent on the vagaries of
the current technology, which may well change, eliminating some
of the zone of freedom we currently rely on. But more worrisome
is the fact that this "solution" actually confines certain types
of art to the world of the Internet.
127
The video of "George Bush Doesn't Care About Black People" could
be seen by many, but only if they were wired to the right
technological and social network. (After all, someone has to
tell you to watch.) It was a searing intervention in the
national debate on Katrina. But it appeared on no television
station. Like most of the mashups created online, the fact that
the rights could never be cleared keeps it off mass media.
Copyright acts as the barbed wire around mass media outlets.
That is a shame, I think. Not because that video is so good--you
may love it or hate it. But because this kind of artwork has
something important to contribute to our national culture.
Imagine a world in which Ray Charles could create "I Got a
Woman," but could only circulate it to a narrow group of the
file-trading digerati because of a flagrant violation of Clara
Ward's copyright. Do we still get soul? The blues? Jazz? Or do
we just get a precious and insular digital subculture, whose
cultural experiments never reach the mainstream?
128
Throughout his life, Charles described an intimate relationship
with his audience, with the public. He described their tastes as
a check, as a corrective; he thought they would actually be
"ahead" of the artists. He wanted to make songs that would be
listened to by tens of millions of people. And he wanted to make
art and lots of money. I am all for the person who wants to
create as an "amateur-professional" and distribute outside the
chains of commerce. I have worked with organizations that make
it easier to do this. But I also believe in the power and
creativity of commercial culture and political speech carried on
mass media. Ironically, our current copyright system serves it
poorly.
129
What is the solution to all of this? The music business runs on
compulsory licenses, a legally granted ability to use music in
certain ways without permission, though with a fee. The system
seems to function pretty well. One solution is to extend that
system to the world of mashups and derivative works. If you
merely copy the whole of my work and circulate it on file
sharing networks or on CDs, we apply the current rules and
penalties. If, on the other hand, you make a "derivative" work,
mixing your work with mine, then there are two alternatives. If
you stay in the world of nonprofit exchange, you get a
heightened presumption in favor of fair use (perhaps
administered through a quicker and cheaper system of
arbitration). If you move into the for-profit world, then you
must pay a flat licensing fee or percentage of profits to the
copyright holder.
130
A second solution would be to curtail the hypertrophy of
protectionism that made all this happen in the first place. The
copyright term could be shortened or we could require renewal
every twenty-eight years. (There are international treaties that
currently forbid the latter alternative.) We could cut back on
excesses like the Bridgeport decision, create incentives to make
the music industry less legalistically insistent on policing the
most atomic level of creation. We could exempt samples shorter
than five seconds from copyright liability, clarify the
boundaries of fair use, and extend it beyond parody to other
genre-smashing forms such as satire and collage.
131
There are enormous obstacles to all these proposals. In
particular, while artists fare very poorly under the current
clearance culture--paying but not receiving the benefits of
payments--the middlemen who profit from transaction costs are not
keen on abolishing them. Certainly if, as the Bridgeport court
assumed, the recording industry is the party responsible for
fine-tuning copyright law, we are hardly likely to see any
reforms that threaten current modes of doing business. Yet there
is a ray of hope. It is getting harder and harder to pretend
that the rules ostensibly designed to encourage creativity are
actually working. At the same time, more and more people are
creating and distributing cultural objects--becoming "subjects"
of intellectual property law in the process, often to their
dismay and irritation. It is in that conjunction--a far cry from
the industry contract envisioned by the Bridgeport court--that
hope for the future of copyright law's treatment of culture
might lie.
Chapter 7: The Enclosure of Science and Technology: Two Case
Studies
1
Over the last forty years, much has changed in the way that
scientific research and technological development are organized,
funded, and institutionally arranged. Much has also changed in
the type of scientific and technical material that is covered by
intellectual property rights, the ways that material is covered,
the parties who hold the rights, and the state of research and
development at which rights claims are made. Many academics who
study both science's organizational structure and the
intellectual property claims that surround it are concerned
about the results. To say this is not to conjure up a tragically
lost world of pure research science, untainted by property
claims or profit motives. That world never existed and it is
probably a good thing too. Intellectual property rights, and the
profit motive more generally, have a vital and beneficial role
in moving innovations from lab bench to bedside, from computer
simulation to actual flight. The question is not whether
intellectual property rights are useful as part of scientific
and technological development. The question is what type of
rights they should be, where in the research process those
rights are best deployed, how they should coexist with state
funded basic scientific and technological research, how broad
they should be, how they should deal with new technologies, how
long they should last, how they should treat follow-on
innovations.
2
I cannot hope here to answer all those questions, though some
fascinating research has begun the process. Instead, as with the
music chapter, I will offer a case study--actually two case
studies--that try to illuminate the process I am describing, to
illustrate its pitfalls and its strange and unintended
consequences.
3
The two defining technologies of the last thirty years are
biotechnology and the networked computer. Each is both product
and platform. Innovations themselves, they are also constitutive
technologies that enable still more innovations. But at several
historical moments in the development of each we came perilously
close to breaking technology with law.1 Some would say that it
was not just a close shave: we actually have hampered or limited
the full potential of technology, slowing down its dynamism with
a host of overbroad software patents, gene patents, and
materials transfer agreements. Others are more optimistic. They
think that a series of rapid improvisations by courts,
scientists, programmers, and businesspeople has largely
mitigated any problems caused by the process of legal
expansion.2 But if mistakes were made, it is important to know
what they were lest we continue or repeat them. If there were
"fixes," it is important to know if they can be replicated.
4
So were there mistakes? If so, have they been fixed, and how?
Drawing on an article I co-wrote with my brilliant colleague
Arti Rai,3 this chapter suggests some answers to those questions
by sketching out some details of the legal history of those
technologies, concluding with a discussion of a single promising
new technology that shares aspects of both--synthetic biology.
The answers are important. Behind the abstract words
"innovation" or "technological development" there are lives
saved or lost, communicative freedoms expanded or contracted,
communities enabled or stunted, wealth generated or not. The
subject would benefit from informed, sophisticated, democratic
attention. It is not something you want to leave a host of
lawyers and lobbyists to decide among themselves.
5
A MACHINE THAT CONTAINS
ALL OTHER MACHINES
6
Imagine a person staring at an infinite roll of paper tape. On
the paper are symbols in some alphabet or number system. The
reader carries out simple, operable instructions on the basis of
that data. "Add together the next two digits you are presented
with and write down the answer. If the answer is odd, go to step
2. If the answer is even, go to step 3." Now replace the person
with a mechanical head that can "read" the instructions, carry
out the desired operations, and write the answer down. The
British mathematician Alan Turing imagined something like this--a
little more complicated, perhaps, but fairly similar. What is
it? We have the reading head, the set of instructions, the data
on which the instructions are to be performed, the record of the
result, and some kind of "state table" that tells the machine
where it is in the process. These are the component parts of
Turing machines--or as we know them better, computers. More
accurately, Turing machines are a method of simulating the
operation of computers, a metaphor that enables us to imitate
their logical processes. In the words of Wikipedia, "despite
their simplicity--[they] can be adapted to simulate the logic of
any computer that could possibly be constructed." And to give
lawyers fits. But that is getting ahead of ourselves.
7
In Greek mythology, Procrustes had a bed to which he fitted its
prospective occupants, whether they liked it or not. The tall
were trimmed down. The short stretched on the rack. Intellectual
property lawyers have many similarities to Procrustes. The
technologies that are brought before them are made to fit the
conceptual boxes the law provides, boxes with names such as
"copyright" and "patent." Occasionally, new conceptual boxes are
made, but--for very good reasons--most of the time we stick with
the boxes we have. As with Procrustes, things do not always fit
and the process can be distressing for its subjects.
8
It is important to realize that the process of trimming and
stretching can be done well or badly. If it is done really
badly, the technology is stunted, deformed, even destroyed. If
it is done well, the law aids the development of the technology
in exactly the happy way described in Chapter 1. What did our
Procrustean legal system do with computers and computer science?
9
I will focus on software--the set of instructions the machine is
to perform. How should we think of it? Software is written down
by programmers. It is recorded first in a form readable to
humans, or at least geeks. Then, through a series of
transformations, it is turned into the machine code, the ones
and zeros that will operate the computer. But at its root it can
be understood through the metaphor of the simple list of
instructions to be carried out in order, just as with the Turing
machine and its infinite tape.
10
How should we fit software into the categories of intellectual
property? We have "writing," fixation in some medium of symbols
that can be read by others--both machine and human. Writing is
normally the domain of copyright. Are computer programs
copyrightable? All kinds of problems present themselves. At
least in the United States, copyright covers expression. As I
pointed out in a previous book, at its base is the conception of
the romantic author impressing her uniqueness of spirit on the
work at the moment of writing. It is that expressive choice, not
the facts or ideas on which the work is based, that copyright
covers. And it is only original expression that copyright
covers. It does not cover purely functional objects, systems,
processes, or methods of operation. One cannot copyright the
coat hanger, the mousetrap, or long division. One cannot even
copyright a "sculpture" if the main function of its design is to
serve as a bicycle rack. Admittedly, one can copyright some
expressive works that serve a practical purpose. A book about
how to do double-entry bookkeeping is copyrightable. Yet
copyright covers only the expressive choices used in selecting
the words to explain the method, and the images to represent it,
not the methods it describes or the facts or ideas it contains.
Can copyright cover computer programs? Should we see them as
copyrightable how-to books or as uncopyrightable machines made
of words?
11
Machines and other functional innovations are normally the
domain of patent rights. One can patent the mousetrap, and then
one gets an exclusive right to the actual mechanically enabled
method of catching mice, not just the artistic flourishes on the
blueprint. Patents have more demanding criteria than copyrights.
The invention needs to be novel and have utility, or usefulness;
I cannot get a patent over something that would have been an
obvious idea to an insider in the relevant field of technology,
a "person having ordinary skill in the art," or PHOSITA, in the
jargon of patent lawyers. But once I get my patent, it gives me
a very strong power to exclude others from the invention--even if
they came up with it independently. The right lasts for twenty
years. Follow-on innovators who improve on my idea can get a
patent on that improvement. They can block me from using the
improvement. I can block them from using the original invention.
Thus we have an incentive to negotiate if either of us wants to
bring the improved innovation to market.
12
So where did software fit? Was it copyrightable writing or
patentable invention? There are two issues here. The first is
whether there should be any intellectual property rights over
software at all. The basic case for that proposition is simple,
a classic example of the public goods problem described in the
first chapter. Software costs money to create, but is cheap to
copy. When a youthful Bill Gates wrote his 1976 letter to the
wonderfully named Dr. Dobb's Journal of Computer Calisthenics &
Orthodontia, he put the point clearly.
13
Who can afford to do professional work for nothing? What
hobbyist can put 3-man years into programming, finding all the
bugs, documenting his product and distribute it for free? The
fact is, no one besides us has invested a lot of money into
hobby software. We have written 6800 BASIC, and are writing 8080
APL and 6800 APL, but there is very little incentive to make
this software available to hobbyists. Most directly, the thing
you do is theft.4
14
He signed the letter "Bill Gates, General Partner, Micro-Soft."
The hyphen would disappear in time. The philosophy stuck around.
15
Though there are quibbles about the facts in Gates's
letter--critics claim he himself did a lot of free riding on
public domain code and government-funded computer time--his basic
point is that software needs to be protected by (enforceable)
property rights if we expect it to be effectively and
sustainably produced. Some software developers disagree. But
assuming one concedes the point for the sake of argument, there
is a second question: should software be covered by copyright or
patent, or some unidentified third option?
16
In practice, software ended up being covered by both schemes,
partly because of actions by Congress, which included several
references to software in the Copyright Act, and partly as a
result of decisions by the Copyright Office, the Patent and
Trademark Office, and judges. One could copyright one's code and
also gain a patent over the "nonobvious," novel, and useful
innovations inside the software.
17
At first, it was the use of copyright that stirred the most
concern. As I explained in the last chapter, copyright seems to
be built around an assumption of diverging innovation--the
fountain or explosion of expressive activity. Different people
in different situations who sit down to write a sonnet or a love
story, it is presumed, will produce very different creations
rather than being drawn to a single result. Thus strong rights
over the resulting work are not supposed to inhibit future
progress. I can find my own muse, my own path to immortality.
Creative expression is presumed to be largely independent of the
work of prior authors. Raw material is not needed. "Copyright is
about sustaining the conditions of creativity that enable an
individual to craft out of thin air an Appalachian Spring, a Sun
Also Rises, a Citizen Kane."5
18
There are lots of reasons to doubt that this vision of "creation
out of nothing" works very well even in the arts, the
traditional domain of copyright law. The story of Ray Charles's
"I Got a Woman" bears ample witness to those doubts. But
whatever its merits or defects in the realm of the arts, the
vision seems completely wrongheaded when it comes to software.
Software solutions to practical problems do converge, and
programmers definitely draw upon prior lines of code. Worse
still, as I pointed out earlier, software tends to exhibit
"network effects." Unlike my choice of novel, my choice of word
processing program is very strongly influenced, perhaps
dominated, by the question of what program other people have
chosen to buy. That means that even if a programmer could find a
completely different way to write a word processing program, he
has to be able to make it read the dominant program's files, and
mimic its features, if he is to attract any customers at all.
That hardly sounds like completely divergent creation.
19
Seeing that software failed to fit the Procrustean bed of
copyright, many scholars presumed the process of forcing it into
place would be catastrophic. They believed that, lacking
patent's high standards, copyright's monopolies would
proliferate widely. Copyright's treatment of follow-on or
"derivative" works would impede innovation, it was thought. The
force of network effects would allow the copyright holder of
whatever software became "the standard" to extract huge monopoly
rents and prevent competing innovation for many years longer
than the patent term. Users of programs would be locked in,
unable to shift their documents, data, or acquired skills to a
competing program. Doom and gloom abounded among copyright
scholars, including many who shared Mr. Gates's basic
premise--that software should be covered by property rights. They
simply believed that these were the wrong property rights to
use.
20
Copyright did indeed cause problems for software developers,
though it is hard to judge whether those problems outweighed the
economic benefits of encouraging software innovation,
production, and distribution. But the negative effects of
copyright were minimized by a remarkably prescient set of
actions by courts and, to a much lesser extent, Congress, so
that the worst scenarios did not come to pass. Courts
interpreted the copyright over software very narrowly, so that
it covered little beyond literal infringement. (Remember
Jefferson's point about the importance of being careful about
the scope of a right.) They developed a complicated test to work
out whether one program infringed the details of another. The
details give law students headaches every year, but the effects
were simple. If your software was similar to mine merely because
it was performing the same function, or because I had picked the
most efficient way to perform some task, or even because there
was market demand for doing it that way, then none of those
similarities counted for the purposes of infringement. Nor did
material that was taken from the public domain. The result was
that while someone who made literal copies of Windows Vista was
clearly infringing copyright, the person who made a competing
program generally would not be.
21
In addition, courts interpreted the fair use doctrine to cover
"decompilation"--which is basically taking apart someone else's
program so that you can understand it and compete with it. As
part of the process, the decompiler had to make a copy of the
program. If the law were read literally, decompilation would
hardly seem to be a fair use. The decompiler makes a whole copy,
for a commercial purpose, of a copyrighted work, precisely in
order to cause harm to its market by offering a substitute good.
But the courts took a broader view. The copy was a necessary
part of the process of producing a competing product, rather
than a piratical attempt to sell a copy of the same product.
This limitation on copyright provided by fair use was needed in
order to foster the innovation that copyright is supposed to
encourage. This is a nice variation of the Sony Axiom from
Chapter 4.
22
These rulings and others like them meant that software was
protected by copyright, as Mr. Gates wanted, but that the
copyright did not give its owner the right to prevent functional
imitation and competition. Is that enough? Clearly the network
effects are real. Most of us use Windows and most of us use
Microsoft Word, and one very big reason is because everyone else
does. Optimists believe the lure of capturing this huge market
will keep potential competitors hungry and monopolists scared.
The lumbering dominant players will not become complacent about
innovation or try to grab every morsel of monopoly rent, goes
the argument. They still have to fear their raptor-like
competitors lurking in the shadows. Perhaps. Or perhaps it also
takes the consistent threat of antitrust enforcement. In any
event, whether or not we hit the optimal point in protecting
software with intellectual property rights, those rights
certainly did not destroy the industry. It appeared that, even
with convergent creativity and network effects, software could
be crammed into the Procrustean bed of copyright without killing
it off in the process. Indeed, to some, it seemed to fare very
well. They would claim that the easy legal protection provided
by copyright gave a nascent industry just enough protection to
encourage the investment of time, talent, and dollars, while not
prohibiting the next generation of companies from building on
the innovations of the past.
23
In addition, the interaction between copyright and software has
produced some surprising results. There is a strong argument
that it is the fact that software is copyrightable that has
enabled the "commons-based creativity" of free and open source
software. What does commons-based creativity mean? Basically, it
is creativity that builds on an open resource available to all.
An additional component of some definitions is that the results
of the creativity must be fed back into the commons for all to
use. Think of English. You can use English without license or
fee, and you can innovate by producing new words, slang, or
phrases without clearance from some Academie Anglaise. After you
coin your term, it is in turn available to me to build upon or
to use in my own sentences, novels, or jokes. And so the cycle
continues. As the last chapter showed, for the entire history of
musical creativity until the last forty years or so, the same
had been true of at least a low level of musical borrowing. At
the basic level of musical phrases, themes, snatches of melody,
even chord structures, music was commons-based creativity.
Property rights did not reach down into the atomic structure of
music. They stayed at a higher level--prohibiting reproduction of
complete works or copying of substantial and important chunks.
So in some areas of both music and language, we had commons-
based creativity because there were no property rights over the
relevant level. The software commons is different.
24
The creators of free and open source software were able to use
the fact that software is copyrighted, and that the right
attaches automatically upon creation and fixation, to set up
new, distributed methods of innovation. For example, free and
open source software under the General Public License--such as
Linux--is a "commons" to which all are granted access. Anyone may
use the software without any restrictions. They are guaranteed
access to the human-readable "source code," rather than just the
inscrutable "machine code," so that they can understand, tinker,
and modify. Modifications can be distributed so long as the new
creation is licensed under the open terms of the original. This
creates a virtuous cycle: each addition builds on the commons
and is returned to it. The copyright over the software was the
"hook" that allowed software engineers to create a license that
gave free access and the right to modify and required future
programmers to keep offering those freedoms. Without the
copyright, those features of the license would not have been
enforceable. For example, someone could have modified the open
program and released it without the source code--denying future
users the right to understand and modify easily. To use an
analogy beloved of free software enthusiasts, the hood of the
car would be welded shut. Home repair, tinkering, customization,
and redesign become practically impossible.
25
Of course, if there were no copyright over software at all,
software engineers would have other freedoms--even if not legally
guaranteed open access to source code. Still, it was hard to
deny that the extension of the property regime had--bizarrely, at
first sight--actually enabled the creation of a continuing open
commons. The tempting real estate analogy would be
environmentalists using strong property rights over land to
guarantee conservation and open access to a green space, where,
without property rights, the space could be despoiled by all.
But as I have pointed out earlier, while such analogies may help
us, the differences between land and intellectual property
demand that they be scrutinized very carefully. It is hard to
overgraze an idea.
26
So much for copyright. What about patents? U.S. patent law had
drawn a firm line between patentable invention and unpatentable
idea, formula, or algorithm. The mousetrap could be patented,
but not the formula used to calculate the speed at which it
would snap shut. Ideas, algorithms, and formulae were in the
public domain--as were "business methods." Or so we thought.
27
The line between idea or algorithm on the one hand and
patentable machine on the other looks nice and easy. But put
that algorithm--that series of steps capable of being specified
in the way described by the Turing machine--onto a computer, and
things begin to look more complex. Say, for example, that
algorithm was the process for converting miles into kilometers
and vice versa. "Take the first number. If it is followed by the
word miles, then multiply by 8/5. If it is followed by the word
kilometers, multiply by 5/8 . . ." and so on. In the abstract,
this is classic public domain stuff--no more patentable than
E=mc2 or F=ma. What about when those steps are put onto the tape
of the Turing machine, onto a program running on the hard drive
of a computer?
28
The Court of Appeals for the Federal Circuit (the United
States's leading patent court) seems to believe that computers
can turn unpatentable ideas into patentable machines. In fact,
in this conception, the computer sitting on your desk becomes
multiple patentable machines--a word processing machine, an e-
mail machine, a machine running the program to calculate the
tensile strength of steel. I want to stress that the other bars
to patentability remain. My example of mile-to-kilometer
conversion would be patentable subject matter but, we hope, no
patent would be granted because the algorithm is not novel and
is obvious. (Sadly, the Patent and Trademark Office seems
determined to undermine this hope by granting patents on the
most mundane and obvious applications.) But the concern here is
not limited to the idea that without a subject matter bar, too
many obvious patents will be granted by an overworked and badly
incentivized patent office. It is that the patent was supposed
to be granted at the very end of a process of investigation and
scientific and engineering innovation. The formulae, algorithms,
and scientific discoveries on which the patented invention was
based remained in the public domain for all to use. It was only
when we got to the very end of the process, with a concrete
innovation ready to go to market, that the patent was to be
given. Yet the ability to couple the abstract algorithm with the
concept of a Turing machine undermines this conception. Suddenly
the patents are available at the very beginning of the process,
even to people who are merely specifying--in the abstract--the
idea of a computer running a particular series of algorithmic
activities.
29
The words "by means of a computer" are--in the eyes of the
Federal Circuit--an incantation of magical power, able to
transubstantiate the ideas and formulae of the public domain
into private property. And, like the breaking of a minor taboo
that presages a Victorian literary character's slide into
debauchery, once that first wall protecting the public domain
was breached, the court found it easier and easier to breach
still others. If one could turn an algorithm into a patentable
machine simply by adding "by means of a computer," then one
could turn a business method into something patentable by
specifying the organizational or information technology
structure through which the business method is to be
implemented.
30
If you still remember the first chapters of this book, you might
wonder why we would want to patent business methods.
Intellectual property rights are supposed to be handed out only
when necessary to produce incentives to supply some public good,
incentives that otherwise would be lacking. Yet there are
already plenty of incentives to come up with new business
methods. (Greed and fear are the most obvious.) There is no
evidence to suggest that we need a state-backed monopoly to
encourage the development of new business methods. In fact, we
want people to copy the businesses of others, lowering prices as
a result. The process of copying business methods is called
"competition" and it is the basis of a free-market economy. Yet
patent law would prohibit it for twenty years. So why introduce
patents? Brushing aside such minor objections with ease, the
Court of Appeals for the Federal Circuit declared business
methods to be patentable. Was this what Jefferson had in mind
when he said "I know well the difficulty of drawing a line
between the things which are worth to the public the
embarrassment of an exclusive patent, and those which are not"?
I doubt it.
31
It is commonplace for courts to look at the purpose of the law
they are enforcing when seeking to understand what it means. In
areas of regulation which are obviously instrumental--aimed at
producing some particular result in the world--that approach is
ubiquitous. In applying the antitrust laws, for example, courts
have given meaning to the relatively vague words of the law by
turning to economic analysis of the likely effects of different
rules on different market structures.
32
Patent law is as instrumental a structure as one could imagine.
In the United States, for example, the constitutional
authorization to Congress to pass patent and copyright
legislation is very explicit that these rights are to be made
with a purpose in view. Congress has the power "to promote the
progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their
respective writings and discoveries." One might imagine that
courts would try to interpret the patent and copyright laws with
that purpose, and the Jefferson Warning about its constraints,
firmly in mind. Yet utilitarian caution about extending
monopolies is seldom to be found in the reasoning of our chief
patent court.
33
The difference is striking. Jefferson said that the job of those
who administered the patent system was to see if a patent was
"worth the embarrassment to the public" before granting it. The
Constitution tells Congress to make only those patent laws that
"promote the progress of science and useful arts." One might
imagine that this constitutional goal would guide courts in
construing those same laws. Yet neither Jeffersonian ideals nor
the constitutional text seem relevant to our chief patent court
when interpreting statutory subject matter. Anything under the
sun made by man is patentable subject matter, and there's an end
to it. The case that announced the rule on business methods
involved a patent on the process of keeping accounts in a "hub-
and-spoke" mutual fund--which included multiplying all of the
stock holdings of each fund in a family of funds by the
respective current share price to get total fund value and then
dividing by the number of mutual fund shares that each customer
actually holds to find the balance in their accounts. As my son
observed, "I couldn't do that until nearly the end of third
grade!"6
34
In theory of course, if the patent is not novel or is obvious,
it will still be refused. The Supreme Court recently held that
the Court of Appeals for the Federal Circuit has made
"nonobvious" too easy a standard to meet.7 It is unclear,
however, whether that judgment will produce concrete effects on
actual practices of patent grants and litigation. The Patent and
Trademark Office puts pressure on examiners to issue patents,
and it is very expensive to challenge those that are granted.
Better, where possible, to rule out certain subject matter in
the first place. Tempted in part by its flirtation with the
"idea made machine" in the context of a computer, the Court of
Appeals for the Federal Circuit could not bring itself to do so.
Where copyright law evolved to wall off and minimize the dangers
of extending protection over software, patent law actually
extended the idea behind software patents to make patentable any
thought process that might produce a useful result. Once
breached, the walls protecting the public domain in patent law
show a disturbing tendency to erode at an increasing rate.
35
To sum up, the conceptual possibilities presented to copyright
and patent law by the idea of a Turing machine were fascinating.
Should we extend copyright or patent to cover the new
technology? The answer was "we will extend both!" Yet the
results of the extension were complex and unexpected in ways
that we will have to understand if we want to go beyond the
simple but important injunctions of Jefferson and Macaulay. Who
would have predicted that software copyrights could be used to
create a self-perpetuating commons as well as a monopoly over
operating systems, or that judges would talk knowingly of
network effects in curtailing the scope of coverage? Who would
have predicted that patents would be extended not only to basic
algorithms implemented by a computer, but to methods of business
themselves (truly a strange return to legalized business
monopolies for a country whose founders viewed them as one of
the greatest evils that could be borne)?
36
SYNTHETIC BIOLOGY
37
If you are a reader of Science, PLoS Biology, or Nature, you
will have noticed some attractive and bizarre photographs
recently. A field of bacteria that form themselves into bull's-
eyes and polka dots. A dim photograph of a woman's face "taken"
by bacteria that have been programmed to be sensitive to light.
You may also have read about more inspiring, if less photogenic,
accomplishments--for example, the group of scientists who managed
to program bacteria to produce artemesinin, a scarce natural
remedy for malaria derived from wormwood. Poking deeper into
these stories, you would have found the phrase "synthetic
biology" repeated again and again, though a precise definition
would have eluded you.
38
What is "synthetic biology"? For some it is simply that the
product or process involves biological materials not found in
nature. Good old-fashioned biotechnology would qualify. One of
the first biotechnology patent cases, Diamond v. Chakrabarty,
involved some bacteria which Dr. Chakrabarty had engineered to
eat oil slicks--not their natural foodstuff.8 The Supreme Court
noted that the bacteria were not found in nature and found them
to be patentable, though alive. According to the simplest
definition, Dr. Chakrabarty's process would count as synthetic
biology, though this example antedates the common use of the
term by two decades. For other scientists, it is the completely
synthetic quality of the biology involved that marks the edge of
the discipline. The DNA we are familiar with, for example, has
four "base pairs"-- A, C, G, and T. Scientists have developed
genetic alphabets that involve twelve base pairs. Not only is
the result not found in nature, but the very language in which
it is expressed is entirely new and artificial.
39
I want to focus on a third conception of synthetic biology: the
idea of turning biotechnology from an artisanal process of one-
off creations, developed with customized techniques, to a true
engineering discipline, using processes and parts that are as
standardized and as well understood as valves, screws,
capacitors, or resistors. The electrical engineer told to build
a circuit does not go out and invent her own switches or
capacitors. She can build a circuit using off-the-shelf
components whose performance is expressed using standard
measurements. This is the dream of one group of synthetic
biologists: that biological engineering truly become
engineering, with biological black boxes that perform all of the
standard functions of electrical or mechanical
engineering--measuring flow, reacting to a high signal by giving
out a low signal, or vice versa, starting or terminating a
sequence, connecting the energy of one process to another, and
so on.
40
Of course an engineer understands the principle behind a
ratchet, or a valve, but he does not have to go through the
process of thinking "as part of this design, I will have to
create a thing that lets stuff flow through one way and not the
other." The valve is the mechanical unit that stands for that
thought, a concept reified in standardized material form which
does not need to be taken apart and parsed each time it is used.
By contrast, the synthetic biologists claim, much of current
biotechnological experimentation operates the way a seventeenth-
century artisan did. Think of the gunsmith making beautiful one-
off classics for his aristocratic patrons, without standardized
calibers, parts, or even standard-gauge springs or screws. The
process produces the gun, but it does not use, or produce,
standard parts that can also be used by the next gunsmith.
41
Is this portrayal of biology correct? Does it involve some
hyping of the new hot field, some denigration of the older
techniques? I would be shocked, shocked, to find there was hype
involved in the scientific or academic enterprise. But whatever
the degree to which the novelty of this process is being subtly
inflated, it is hard to avoid being impressed by the projects
that this group of synthetic biologists has undertaken. The MIT
Registry of Standard Biological Parts, for example, has exactly
the goal I have just described.
42
The development of well-specified, standard, and
interchangeable biological parts is a critical step towards the
design and construction of integrated biological systems. The
MIT Registry of Standard Biological Parts supports this goal by
recording and indexing biological parts that are currently being
built and offering synthesis and assembly services to construct
new parts, devices, and systems. . . . In the summer of 2004,
the Registry contained about 100 basic parts such as operators,
protein coding regions, and transcriptional terminators, and
devices such as logic gates built from these basic parts. Today
the number of parts has increased to about 700 available parts
and 2000 defined parts. The Registry believes in the idea that a
standard biological part should be well specified and able to be
paired with other parts into subassemblies and whole systems.
Once the parameters of these parts are determined and
standardized, simulation and design of genetic systems will
become easier and more reliable. The parts in the Registry are
not simply segments of DNA, they are functional units.9
43
Using the Registry, a group of MIT scientists organizes an
annual contest called iGEM, the International Genetically
Engineered Machine competition. Students can draw from the
standard parts that the Registry contains, and perhaps
contribute their own creations back to it. What kinds of
"genetically engineered machines" do they build?
44
A team of eight undergraduates from the University of
Ljubljana in Slovenia-- cheering and leaping onto MIT's Kresge
Auditorium stage in green team T-shirts-- won the grand prize
earlier this month at the International Genetically Engineered
Machine (iGEM) competition at MIT. The group--which received an
engraved award in the shape of a large aluminum Lego
piece--explored a way to use engineered cells to intercept the
body's excessive response to infection, which can lead to a
fatal condition called sepsis. The goal of the 380 students on
35 university teams from around the world was to build
biological systems the way a contractor would build a house--with
a toolkit of standard parts. iGEM participants spent the summer
immersed in the growing field of synthetic biology, creating
simple systems from interchangeable parts that operate in living
cells. Biology, once thought too complicated to be engineered
like a clock, computer or microwave oven, has proven to be open
to manipulation at the genetic level. The new creations are
engineered from snippets of DNA, the molecules that run living
cells.10
45
Other iGEM entries have included E. coli bacteria that had been
engineered to smell like wintergreen while they were growing and
dividing and like bananas when they were finished, a
biologically engineered detector that would change color when
exposed to unhealthy levels of arsenic in drinking water, a
method of programming mouse stem cells to "differentiate" into
more specialized cells on command, and the mat of picture-taking
bacteria I mentioned earlier.
46
No matter how laudable the arsenic detector or the experimental
technique dealing with sepsis, or how cool the idea of banana-
scented, picture-taking bacteria, this kind of enterprise will
cause some of you to shudder. Professor Drew Endy, one of the
pioneers in this field, believes that part of that reaction
stems from simple novelty. "A lot of people who were scaring
folks in 1975 now have Nobel prizes."11 But even if inchoate,
the concerns that synthetic biology arouses stem from more than
novelty. There is a deep-seated fear that if we see the natural
world of biology as merely another system that we can routinely
engineer, we will have extended our technocratic methods into a
realm that was only intermittently subject to them in a way that
threatens both our structure of self-understanding and our
ecosystem.
47
To this, the synthetic biologists respond that we are already
engineering nature. In their view, planned, structured, and
rationalized genetic engineering poses fewer dangers than poorly
understood interventions to produce some specific result in
comparative ignorance of the processes we are employing to do
so. If the "code" is transparent, subject to review by a peer
community, and based on known parts and structures, each
identified by a standard genetic "barcode," then the chance of
detecting problems and solving them is higher. And while the
dangers are real and not to be minimized, the potential
benefits--the lives saved because the scarce antimalarial drug
can now be manufactured by energetic E. coli or because a cheap
test can demonstrate arsenic contamination in a village well--are
not to be minimized either.
48
I first became aware of synthetic biology when a number of the
scientists working on the Registry of Standard Biological Parts
contacted me and my colleague Arti Rai. They did not use these
exact words, but their question boiled down to "how does
synthetic biology fare in intellectual property's categories,
and how can we keep the basics of the science open for all to
use?" As you can tell from this book, I find intellectual
property fascinating--lamentably so perhaps. Nevertheless, I was
depressed by the idea that scientists would have to spend their
valuable time trying to work out how to save their discipline
from being messed up by the law. Surely it would be better to
have them doing, well, science?
49
They have cause for concern. As I mentioned at the beginning of
this chapter, synthetic biology shares characteristics of both
software and biotechnology. Remember the focus on reducing
functions to black boxes. Synthetic biologists are looking for
the biological equivalents of switches, valves, and inverters.
The more abstractly these are described, the more they come to
resemble simple algebraic expressions, replete with "if, then"
statements and instructions that resolve to "if x, then y, if
not x, then z."
50
If this sounds reminiscent of the discussion of the Turing
machine, it should. When the broad rules for software and
business methods were enunciated by the federal courts, software
was already a developed industry. Even though the rules would
have allowed the equivalent of patenting the alphabet, the very
maturity of the field minimized the disruption such patents
could cause. Of course "prior art" was not always written down.
Even when it was recorded, it was sometimes badly handled by the
examiners and the courts, partly because they set a very
undemanding standard for "ordinary expertise" in the art.
Nevertheless, there was still a lot of prior experience and it
rendered some of the more basic claims incredible. That is not
true in the synthetic biology field.
51
Consider a recent article in Nature, "A universal RNAi-based
logic evaluator that operates in mammalian cells."12 The
scientists describe their task in terms that should be familiar.
"A molecular automaton is an engineered molecular system coupled
to a (bio)molecular environment by 'flow of incoming messages
and the actions of outgoing messages,' where the incoming
messages are processed by an 'intermediate set of elements,'
that is, a computer." The article goes on to describe some of
the key elements of so-called "Boolean algebra"-- "or," "and,"
"not," and so on--implemented in living mammalian cells.
52
These inscriptions of Boolean algebra in cells and DNA sequences
can be patented. The U.S. Department of Health and Human
Services, for example, owns patent number 6,774,222:
53
This invention relates to novel molecular constructs that
act as various logic elements, i.e., gates and flip-flops. . . .
The basic functional unit of the construct comprises a nucleic
acid having at least two protein binding sites that cannot be
simultaneously occupied by their cognate binding protein. This
basic unit can be assembled in any number of formats providing
molecular constructs that act like traditional digital logic
elements (flips-flops, gates, inverters, etc.).
54
My colleagues Arti Rai and Sapna Kumar have performed a patent
search and found many more patents of similar breadth.13
55
What is the concern? After all, this is cutting-edge science.
These seem like novel, nonobvious inventions with considerable
utility. The concern is that the change in the rules over
patentable subject matter, coupled with the Patent and Trademark
Office's handling of both software and biotechnology, will come
together so that the patent is not over some particular
biological circuit, but, rather, over Boolean algebra itself as
implemented by any biotechnological means. It would be as if,
right at the beginning of the computer age, we had issued
patents over formal logic in software--not over a particular
computer design, but over the idea of a computer or a binary
circuit itself.
56
"By means of a computer" was the magic phrase that caused the
walls around the public domain of algorithms and ideas to
crumble. Will "by means of a biological circuit" do the same?
And--to repeat the key point--unlike computer science,
biotechnology is developing after the hypertrophy of our
intellectual property system. We do not have the immune system
provided by the established practices and norms, the "prior
art," even the community expectations that protected software
from the worst effects of patents over the building blocks of
science.
57
Following the example of software, the founders of the MIT
Registry of Standard Biological Parts had the idea of protecting
their discipline from overly expansive intellectual property
claims by turning those rights against themselves. Free and open
source software developers have created a "commons" using the
copyright over the code to impose a license on their software,
one that requires subsequent developers to keep the source open
and to give improvements back to the software commons--a virtuous
cycle. Could the Registry of Standard Biological Parts do the
same thing? The software commons rests on a license. But, as I
pointed out in the last section, the license depends on an
underlying property right. It is because I have automatic
copyright over my code that I can tell you "use it according to
these terms or you will be violating my copyright." Is there a
copyright over the products of synthetic biology? To create one
we would have to take the extension of copyright that was
required to reach software and stretch it even further. Bill
Gates might argue for intellectual property rights over software
using the logic of his article in Dr. Dobb's Journal. Will the
argument for copyrights over synthetic biological coding be "I
need the property right so I can create a commons"?
58
In practice, I think the answer is, and should be, no. Of
course, one could think of this as just another type of coding,
making expressive choices in a code of A's, C's, G's, and T's,
just as a programmer does in Java or C??. Yet, software was
already a stretch for copyright law. Synthetic biology strikes
me as a subject matter that the courts, Congress, and the
Copyright Office are unlikely to want to cram into copyright's
already distorted outlines-- particularly given the obvious
availability of patent rights. As a matter of conceptual
intuition, I think they will see biological subject matter as
harder to fit into the categories of original expressive
writing. On one level, yes, it is all information, but, on
another level, the idea of programming with gene sequences will
probably raise hackles that the idea of coding inside a
programming language never would. As a normative matter, I think
it would be a poor choice to apply copyright to the products of
synthetic biology. Attempting to produce a particular open
commons, one might enable the kind of hundred-year monopolies
over functional objects that the critics of software copyright
initially feared.
59
If one wishes to keep the basic ideas and techniques of
synthetic biology open for subsequent innovators, there are
alternatives to the idea of a synthetic biology open source
license. The Registry of Standard Biological Parts or the
BioBricks Foundation can simply put all their work into the
public domain immediately. (This, indeed, is what they are
currently doing.) Such a scheme lacks one key feature of open
source software: the right to force subsequent innovators to
release their code back into the commons. Yet it would make
subsequent patents on the material impossible, because it had
already been published.
60
Regardless of the decisions made about the future of synthetic
biology, I think its story--coupled to that of software and
biotechnology more generally--presents us with an important
lesson. I started the chapter with the metaphor of Procrustes's
bed. But in the case of software and biotechnology, both the
bed--the categories of copyright and patent--and its
inhabitants--the new technologies--were stretched. Cracks formed
in the boundaries that were supposed to prevent copyright from
being applied to functional articles, to prevent patents
extending to cover ideas, algorithms, and business methods.
61
Until this point, though the science would have been strange to
Jefferson or his contemporaries, the underlying issue would have
been familiar. The free-trade, Scottish Enlightenment thinkers
of the eighteenth and nineteenth centuries would have scoffed at
the idea that business methods or algorithms could be patented,
let alone that one could patent the "or," "if-then," and "not"
functions of Boolean algebra as implemented by a biological
mechanism. The response, presumably, is to fine tune our patent
standards--to patent the mousetrap and the corkscrew, not the
notion of catching mice or opening bottles by mechanical means.
Still less should we allow the patenting of algebra. These are
fine points. Later scholarship has added formulae, data, and
historical analysis to back up Jefferson's concerns, while never
surpassing his prose. As I said at the beginning of the book, if
we were to print out the Jefferson Warning and slip it into the
shirt pocket of every legislator and regulator, our policy would
be remarkably improved.
62
But it is here that the story takes a new turn, something that
neither Jefferson nor the philosophers of the Scottish
Enlightenment had thought of, something that goes beyond their
cautions not to confuse intellectual property with physical
property, to keep its boundaries, scope, and term as small as
possible while still encouraging the desired innovation.
63
Think of the reaction of the synthetic biologists at MIT. They
feared that the basic building blocks of their new discipline
could be locked up, slowing the progress of science and research
by inserting intellectual property rights at the wrong point in
the research cycle. To solve the problem they were led seriously
to consider claiming copyright over the products of synthetic
biology--to fight overly broad patent rights with a privately
constructed copyright commons, to ride the process of legal
expansion and turn it to their own ends. As I pointed out
earlier, I think the tactic would not fare well in this
particular case. But it is an example of a new move in the
debate over intellectual property, a new tactic: the attempt to
create a privately constructed commons where the public domain
created by the state does not give you the freedom that you
believe creativity needs in order to thrive. It is to that
tactic, and the distributed creativity that it enables, that I
will turn to now.
Chapter 8: A Creative Commons
1
If you go to the familiar Google search page and click the
intimidating link marked "advanced search," you come to a page
that gives you more fine-grained control over the framing of
your query. Nestled among the choices that allow you to pick
your desired language, or exclude raunchy content, is an option
that says "usage rights." Click "free to use or share" and then
search for "physics textbook" and you can download a 1,200-page
physics textbook, copy it, or even print it out and hand it to
your students. Search for "Down and Out in the Magic Kingdom"
and you will find Cory Doctorow's fabulous science fiction
novel, online, in full, for free. His other novels are there
too--with the willing connivance of his commercial publisher.
Search for "David Byrne, My Fair Lady" and you will be able to
download Byrne's song and make copies for your friends. You'll
find songs from Gilberto Gil and the Beastie Boys on the same
page. No need to pay iTunes or worry about breaking the law.
2
Go to the "advanced" page on Flickr, the popular photo sharing
site, and you will find a similar choice marked "Creative
Commons License." Check that box and then search for "Duke
Chapel" and you will get a selection of beautiful photos of the
lovely piece of faux Gothic architecture that sits about three
hundred yards from the office where I am writing these words.
You can copy those photos, and 66 million others on different
subjects, share them with your friends, print them for your
wall, and, in some cases, even use them commercially. The same
basic tools can be found on a range of specialized search
engines with names like OWL Music Search, BlipTV, SpinExpress,
and OERCommons. Searching those sites, or just sticking with the
advanced options on Google or Yahoo, will get you courses in
music theory, moral philosophy, and C++ programming from famous
universities; a full-length movie called Teach by Oscar-winning
director Davis Guggenheim; and free architectural drawings that
can be used to build low-cost housing. At the Wellcome Library,
you will find two thousand years of medical images that can be
shared freely. Searching for "skeleton" is particularly fun. You
can even go to your favorite search engine, type in the title of
this book, find a site that will allow you to download it, and
send the PDF to a hundred friends, warmly anticipating their
rapturous enjoyment. (Better ask them first.)
3
All this copying and sharing and printing sounds illegal, but it
is not (at least if you went through the steps I described). And
the things you can do with this content do not stop with simply
reproducing it, printing it on paper, or sending it by e-mail.
Much of it can be changed, customized, remixed--you could rewrite
the module of the class and insert your own illustrations,
animate the graphs showing calculus in action, morph the photo
into something new. If you search for a musician with the
unpromising name "Brad Sucks," you will find a Web site bearing
the modest subtitle "A one man band with no fans." Brad, it
turns out, does not suck and has many fans. What makes him
particularly interesting is that he allows those fans, or anyone
else for that matter, to remix his music and post their
creations online. I am particularly fond of the Matterovermind
remix of "Making Me Nervous," but it may not be to your taste.
Go to a site called ccMixter and you will find that musicians,
famous and obscure, are inviting you to sample and remix their
music. Or search Google for Colin Mutchler and listen to a
haunting song called "My Life Changed." Mr. Mutchler and a
violinist called Cora Beth Bridges whom he had never met created
that song together. He posted a song called "My Life" online,
giving anyone the freedom to add to it, and she did--"My Life."
Changed.
4
On December 15, 2002, in San Francisco, a charitable
organization called Creative Commons was launched. (Full
disclosure: I have been a proud board member of Creative Commons
since its creation.) Creative Commons was the brainchild of
Larry Lessig, Hal Abelson, and Eric Eldred. All the works I have
just described--and this book itself--are under Creative Commons
licenses. The authors and creators of those works have chosen to
share it with the world, with you, under generous terms, while
reserving certain rights for themselves. They may have allowed
you to copy it, but not to alter it--to make derivative works. Or
they may have allowed you to use it as you wish, so long as you
do so noncommercially. Or they may have given you complete
freedom, provided only that you attribute them as the owner of
the work. There are a few simple choices and a limited menu of
permutations.
5
What makes these licenses unusual is that they can be read by
two groups that normal licenses exclude--human beings (rather
than just lawyers) and computers. The textbooks, photos, films,
and songs have a tasteful little emblem on them marked with a
"cc" which, if you click on it, links to a "Commons Deed," a
simple one-page explanation of the freedoms you have. There are
even icons--a dollar with a slash through it, for example--that
make things even clearer. Better still, the reason the search
engines could find this material is that the licenses also
"tell" search engines exactly what freedoms have been given.
Simple "metadata" (a fancy word for tags that computers can
read) mark the material with its particular level of freedoms.
This is not digital rights management. The license will not try
to control your computer, install itself on your hard drive, or
break your TV. It is just an expression of the terms under which
the author has chosen to release the work. That means that if
you search Google or Flickr for "works I am free to share, even
commercially," you know you can go into business selling those
textbooks, or printing those photos on mugs and T-shirts, so
long as you give the author attribution. If you search for "show
me works I can build on," you know you are allowed to make what
copyright lawyers call "derivative works."
6
The idea behind Creative Commons was simple. As I pointed out in
the first chapter, copyright adheres automatically on
"fixation." As soon as you lift the pen from the paper, click
the shutter, or save the file, the work is copyrighted. No
formalities. No need even to use the little symbol (C). Once
copyrighted, the work is protected by the full might of the
legal system. And the legal system's default setting is that
"all rights are reserved" to the author, which means effectively
that anyone but the author is forbidden to copy, adapt, or
publicly perform the work. This might have been a fine rule for
a world in which there were high barriers to publication. The
material that was not published was theoretically under an "all
rights reserved" regime, but who cared? It was practically
inaccessible anyway. After the development of the World Wide
Web, all that had changed. Suddenly people and institutions,
millions upon millions of them, were putting content
online--blogs, photo sites, videologs, podcasts, course
materials. It was all just up there.
7
But what could you do with it? You could read it, or look at it,
or play it presumably--otherwise why had the author put it up?
But could you copy it? Put it on your own site? Include it in a
manual used by the whole school district? E-mail it to someone?
Translate it into your own language? Quote beyond the boundaries
of fair use? Adapt for your own purposes? Take the song and use
it for your video? Of course, if you really wanted the work a
lot, you could try to contact the author--not always easy. And
one by one, we could all contact each other and ask for
particular types of permissions for use. If the use was large
enough or widespread enough, perhaps we would even think that an
individual contract was necessary. Lawyers could be hired and
terms hashed out.
8
All this would be fine if the author wished to retain all the
rights that copyright gives and grant them only individually,
for pay, with lawyers in the room. But what about the authors,
the millions upon millions of writers, and photographers and
musicians, and filmmakers and bloggers and scholars, who very
much want to share their work? The Cora Beth Bridges of the
world are never going to write individual letters to the Colin
Mutchlers of the world asking for permission to make a
derivative work out of "My Life." The person who translated my
articles into Spanish or Mandarin, or the people who repost them
on their Web sites, or include them in their anthologies might
have asked permission if I had not granted it in advance. I
doubt though that I would have been contacted by the very
talented person who took images from a comic book about fair use
that I co-wrote and mashed them up with words from a book by
Larry Lessig, and some really nice music from someone none of us
had ever met. Without some easy way to give permission in
advance, and to do so in a way that human beings and computers,
as well as lawyers, can understand, those collaborations will
never happen, though all the parties would be delighted if they
did. These are losses from "failed sharing"--every bit as real as
losses from unauthorized copying, but much less in the public
eye.
9
Creative Commons was conceived as a private "hack" to produce a
more fine-tuned copyright structure, to replace "all rights
reserved" with "some rights reserved" for those who wished to do
so. It tried to do for culture what the General Public License
had done for software. It made use of the same technologies that
had created the issue: the technologies that made fixation of
expressive content and its distribution to the world something
that people, as well as large concentrations of capital, could
do. As a result, it was able to attract a surprising range of
support--Jack Valenti of the Motion Picture Association of
America and Hillary Rosen of the Recording Industry Association
of America, as well as John Perry Barlow of the Grateful Dead,
whose attitude toward intellectual property was distinctly less
favorable. Why could they all agree? These licenses were not a
choice forced on anyone. The author was choosing what to share
and under what terms. But that sharing created something
different, something new. It was more than a series of isolated
actions. The result was the creation of a global "commons" of
material that was open to all, provided they adhered to the
terms of the licenses. Suddenly it was possible to think of
creating a work entirely out of Creative Commons-licensed
content--text, photos, movies, music. Your coursebook on music
theory, or your documentary on the New York skyline, could
combine your own original material with high-quality text,
illustrations, photos, video, and music created by strangers.
One could imagine entire fields--of open educational content or
of open music--in which creators could work without keeping one
eye nervously on legal threats or permissions.
10
From one perspective, Creative Commons looks like a simple
device for enabling exercise of authorial control, remarkable
only for the extremely large number of authors making that
choice and the simplicity with which they can do so. From
another, it can be seen as re-creating, by private choice and
automated licenses, the world of creativity before law had
permeated to the finest, most atomic level of science and
culture--the world of folk music or 1950s jazz, of jokes and
slang and recipes, of Ray Charles's "rewording" of gospel songs,
or of Isaac Newton describing himself as "standing on the
shoulders of giants" (and not having to pay them royalties).
Remember, that is not a world without intellectual property. The
cookbook might be copyrighted even if the recipe was not. Folk
music makes it to the popular scene and is sold as a copyrighted
product. The jazz musician "freezes" a particular version of the
improvisation on a communally shared set of musical motifs,
records it, and sometimes even claims ownership of it. Newton
himself was famously touchy about precedence and attribution,
even if not about legal ownership of his ideas. But it is a
world in which creativity and innovation proceed on the basis of
an extremely large "commons" of material into which it was never
imagined that property rights could permeate.
11
For many of us, Creative Commons was conceived of as a second-
best solution created by private agreement because the best
solution could not be obtained through public law. The best
solution would be a return of the formality requirement--a
requirement that one at least write the words "James Boyle
copyright 2008," for example, in order to get more than 100
years of legal protection backed by "strict liability" and
federal criminal law. Those who did not wish to have the legal
monopoly could omit the phrase and the work would pass into the
public domain, with a period of time during which the author
could claim copyright retrospectively if the phrase was omitted
by accident. The default position would become freedom and the
dead weight losses caused by giving legal monopolies to those
who had not asked for them, and did not want them, would
disappear. To return to the words of Justice Brandeis that I
quoted at the beginning of the book:
12
The general rule of law is, that the noblest of human
productions--knowledge, truths ascertained, conceptions, and
ideas--become, after voluntary communication to others, free as
the air to common use. Upon these incorporeal productions the
attribute of property is continued after such communication only
in certain classes of cases where public policy has seemed to
demand it.
13
Brandeis echoes the Jeffersonian preference for a norm of
freedom, with narrowly constrained exceptions only when
necessary. That preference means that the commons of which I
spoke is a relatively large one--property rights are the
exception, not the norm. Of course, many of those who use
Creative Commons licenses might disagree with that policy
preference and with every idea in this book. They may worship
the DMCA or just want a way to get their song or their article
out there while retaining some measure of control. That does not
matter. The licenses are agnostic. Like a land trust which has a
local pro-growth industrialist and a local environmentalist on
its board, they permit us to come to a restricted agreement on
goals ("make sure this space is available to the public") even
when underlying ideologies differ. They do this using those most
conservative of tools--property rights and licenses. And yet, if
our vision of property is "sole and despotic dominion," these
licenses have created something very different--a commons has
been made out of private and exclusive rights.
14
My point here is that Creative Commons licenses or the tools of
free and open source software--to which I will turn in a
moment--represent something more than merely a second-best
solution to a poorly chosen rule. They represent a visible
example of a type of creativity, of innovation, which has been
around for a very long time, but which has reached new salience
on the Internet--distributed creativity based around a shared
commons of material.
15
FREE AND OPEN SOURCE SOFTWARE
16
In 2007, Clay Shirky, an incisive commentator on networked
culture, gave a speech which anyone but a Net aficionado might
have found simultaneously romantic and impenetrable. He started
by telling the story of a Shinto shrine that has been
painstakingly rebuilt to exactly the same plan many times over
its 1,300-year life--and which was denied certification as a
historic building as a result. Shirky's point? What was
remarkable was not the building. It was a community that would
continue to build and rebuild the thing for more than a
millennium.
17
From there, Shirky shifted to a discussion of his attempt to get
AT&T to adopt the high-level programming language Perl--which is
released as free and open source software under the General
Public License. From its initial creation by Larry Wall in 1987,
Perl has been adapted, modified, and developed by an
extraordinary range of talented programmers, becoming more
powerful and flexible in the process. As Shirky recounts the
story, when the AT&T representatives asked "where do you get
your support?" Shirky responded, " 'we get our support from a
community'--which to them sounded a bit like 'we get our
Thursdays from a banana.' " Shirky concluded the speech thus:
18
We have always loved one another. We're human. It's
something we're good at. But up until recently, the radius and
half-life of that affection has been quite limited. With love
alone, you can plan a birthday party. Add coordinating tools and
you can write an operating system. In the past, we would do
little things for love, but big things required money. Now we
can do big things for love.1
19
There are a few people out there for whom "operating systems"
and "love" could plausibly coexist in a sentence not constructed
by an infinite number of monkeys. For most though, the question
is, what could he possibly have meant?
20
The arguments in this book so far have taken as a given the
incentives and collective action problems to which intellectual
property is a response. Think of Chapter 1 and the economic
explanation of "public goods." The fact that it is expensive to
do the research to find the right drug, but cheap to manufacture
it once it is identified provides a reason to create a legal
right of exclusion. In those realms where the innovation would
not have happened anyway, the legal right of exclusion gives a
power to price above cost, which in turn gives incentives to
creators and distributors. So goes the theory. I have discussed
the extent to which the logic of enclosure works for the commons
of the mind as well as it did for the arable commons, taking
into account the effects of an information society and a global
Internet. What I have not done is asked whether a global network
actually transforms some of our assumptions about how creation
happens in a way that reshapes the debate about the need for
incentives, at least in certain areas. This, however, is exactly
the question that needs to be asked.
21
For anyone interested in the way that networks can enable new
collaborative methods of production, the free software movement,
and the broader but less political movement that goes under the
name of open source software, provide interesting case studies.2
Open source software is released under a series of licenses, the
most important being the General Public License (GPL). The GPL
specifies that anyone may copy the software, provided the
license remains attached and the source code for the software
always remains available.3 Users may add to or modify the code,
may build on it and incorporate it into their own work, but if
they do so, then the new program created is also covered by the
GPL. Some people refer to this as the "viral" nature of the
license; others find the term offensive.4 The point, however, is
that the open quality of the creative enterprise spreads. It is
not simply a donation of a program or a work to the public
domain, but a continual accretion in which all gain the benefits
of the program on pain of agreeing to give their additions and
innovations back to the communal project.
22
For the whole structure to work without large-scale centralized
coordination, the creation process has to be modular, with units
of different sizes and complexities, each requiring slightly
different expertise, all of which can be added together to make
a grand whole. I can work on the sendmail program, you on the
search algorithms. More likely, lots of people try, their
efforts are judged by the community, and the best ones are
adopted. Under these conditions, this curious mix of Kropotkin
and Adam Smith, Richard Dawkins and Richard Stallman, we get
distributed production without having to rely on the proprietary
exclusion model. The whole enterprise will be much, much, much
greater than the sum of the parts.
23
What's more, and this is a truly fascinating twist, when the
production process does need more centralized coordination, some
governance that guides how the sticky modular bits are put
together, it is at least theoretically possible that we can come
up with the control system in exactly the same way. In this
sense, distributed production is potentially recursive.
Governance processes, too, can be assembled through distributed
methods on a global network, by people with widely varying
motivations, skills, and reserve prices.5
24
The free and open source software movements have produced
software that rivals or, some claim, exceeds the capabilities of
conventional proprietary, binary-only software.6 Its adoption on
the "enterprise level" is impressive, as is the number and
enthusiasm of the various technical testaments to its strengths.
You have almost certainly used open source software or been its
beneficiary. Your favorite Web site or search engine may run on
it. If your browser is Firefox, you use it every day. It powers
surprising things around you--your ATM or your TiVo. The plane
you are flying in may be running it. It just works.
25
Governments have taken notice. The United Kingdom, for example,
concluded last year that open source software "will be
considered alongside proprietary software and contracts will be
awarded on a value-for-money basis." The Office of Government
Commerce said open source software is "a viable desktop
alternative for the majority of government users" and "can
generate significant savings. . . . These trials have proved
that open source software is now a real contender alongside
proprietary solutions. If commercial companies and other
governments are taking it seriously, then so must we."7 Sweden
found open source software to be in many cases "equivalent to--or
better than--commercial products" and concluded that software
procurement "shall evaluate open software as well as commercial
solutions, to provide better competition in the market."8
26
What is remarkable is not merely that the software works
technically, but that it is an example of widespread, continued,
high-quality innovation. The really remarkable thing is that it
works socially, as a continuing system, sustained by a network
consisting both of volunteers and of individuals employed by
companies such as IBM and Google whose software "output" is
nevertheless released into the commons.
27
Here, it seems, we have a classic public good: code that can be
copied freely and sold or redistributed without paying the
creator or creators. This sounds like a tragedy of the commons
of the kind that I described in the first three chapters of the
book. Obviously, with a nonrival, nonexcludable good like
software, this method of production cannot be sustained; there
are inadequate incentives to ensure continued production. E pur
si muove, as Galileo is apocryphally supposed to have said in
the face of Cardinal Bellarmine's certainties: "And yet it
moves."9 Or, as Clay Shirky put it, "we get our support from a
community."
28
For a fair amount of time, most economists looked at open source
software and threw up their hands. From their point of view, "we
get our support from a community" did indeed sound like "we get
our Thursdays from a banana." There is an old economics joke
about the impossibility of finding a twenty-dollar bill lying on
a sidewalk. In an efficient market, the money would already have
been picked up. (Do not wait for a punch line.) When economists
looked at open source software they saw not a single twenty-
dollar bill lying implausibly on the sidewalk, but whole bushels
of them. Why would anyone work on a project the fruits of which
could be appropriated by anyone? Since copyright adheres on
fixation--since the computer programmer already has the legal
power to exclude others--why would he or she choose to take the
extra step of adopting a license that undermined that exclusion?
Why would anyone choose to allow others to use and modify the
results of their hard work? Why would they care whether the
newcomers, in turn, released their contributions back into the
commons?
29
The puzzles went beyond the motivations of the people engaging
in this particular form of "distributed creativity." How could
these implausible contributions be organized? How should we
understand this strange form of organization? It is not a
company or a government bureaucracy. What could it be? To
Richard Epstein, the answer was obvious and pointed to a reason
the experiment must inevitably end in failure:
30
The open source movement shares many features with a
workers' commune, and is likely to fail for the same reason: it
cannot scale up to meet its own successes. To see the long-term
difficulty, imagine a commune entirely owned by its original
workers who share pro rata in its increases in value. The system
might work well in the early days when the workforce remains
fixed. But what happens when a given worker wants to quit? Does
that worker receive in cash or kind his share of the gain in
value during the period of his employment? If not, then the run-
up in value during his period of employment will be gobbled up
by his successor--a recipe for immense resentment. Yet that
danger can be ducked only by creating a capital structure that
gives present employees separable interests in either debt or
equity in exchange for their contributions to the company. But
once that is done, then the worker commune is converted into a
traditional company whose shareholders and creditors contain a
large fraction of its present and former employers. The bottom
line is that idealistic communes cannot last for the long
haul.10
31
There are a number of ideas here. First, "idealistic communes
cannot last for the long haul." The skepticism about the staying
power of idealism sounds plausible today, though there are some
relatively prominent counterexamples. The Catholic Church is
also a purportedly idealistic institution. It is based on
canonical texts that are subject to even more heated arguments
about textual interpretation than those which surround the
General Public License. It seems to be surviving the long haul
quite well.
32
The second reason for doomsaying is provided by the word
"commune." The problems Epstein describes are real where
tangible property and excludable assets are involved. But is the
free and open source community a "commune," holding tangible
property in common and excluding the rest of us? Must it worry
about how to split up the proceeds if someone leaves because of
bad karma? Or is it a community creating and offering to the
world the ability to use, for free, nonrival goods that all of
us can have, use, and reinterpret as we wish? In that kind of
commune, each of us could take all the property the community
had created with us when we left and the commune would still be
none the poorer. Jefferson was not thinking of software when he
talked of the person who lights his taper from mine but does not
darken me, but the idea is the same one. Copying software is not
like fighting over who owns the scented candles or the VW bus.
Does the person who wrote the "kernel" of the operating system
resent the person who, much later, writes the code to manage
Internet Protocol addresses on a wireless network? Why should
he? Now the program does more cool stuff. Both of them can use
it. What's to resent?
33
How about idealism? There is indeed a broad debate on the
reasons that the system works: Are the motivations those of the
gift economy? Is it, as Shirky says, simply the flowering of an
innate love that human beings have always had for each other and
for sharing, now given new strength by the geographic reach and
cooperative techniques the Internet provides? "With love alone,
you can plan a birthday party. Add coordinating tools and you
can write an operating system." Is this actually a form of
potlatch, in which one gains prestige by the extravagance of the
resources one "wastes"? Is open source an implicit résumé-
builder that pays off in other ways? Is it driven by the
species-being, the innate human love of creation that
continually drives us to create new things even when homo
economicus would be at home in bed, mumbling about public goods
problems?11
34
Yochai Benkler and I would argue that these questions are fun to
debate but ultimately irrelevant.12 Assume a random distribution
of incentive structures in different people, a global
network--transmission, information sharing, and copying costs
that approach zero--and a modular creation process. With these
assumptions, it just does not matter why they do it. In lots of
cases, they will do it. One person works for love of the
species, another in the hope of a better job, a third for the
joy of solving puzzles, and a fourth because he has to solve a
particular problem anyway for his own job and loses nothing by
making his hack available for all. Each person has their own
reserve price, the point at which they say, "Now I will turn off
Survivor and go and create something." But on a global network,
there are a lot of people, and with numbers that big and
information overhead that small, even relatively hard projects
will attract motivated and skilled people whose particular
reserve price has been crossed.
35
More conventionally, many people write free software because
they are paid to do so. Amazingly, IBM now earns more from what
it calls "Linux-related revenues" than it does from traditional
patent licensing, and IBM is the largest patent holder in the
world.13 It has decided that the availability of an open
platform, to which many firms and individuals contribute, will
actually allow it to sell more of its services, and, for that
matter, its hardware. A large group of other companies seem to
agree. They like the idea of basing their services, hardware,
and added value on a widely adopted "commons." This does not
seem like a community in decline.
36
People used to say that collaborative creation could never
produce a quality product. That has been shown to be false. So
now they say that collaborative creation cannot be sustained
because the governance mechanisms will not survive the success
of the project. Professor Epstein conjures up a "central
committee" from which insiders will be unable to cash out--a nice
mixture of communist and capitalist metaphors. All governance
systems--including democracies and corporate boards--have
problems. But so far as we can tell, those who are influential
in the free software and open source governance communities
(there is, alas, no "central committee") feel that they are
doing very well indeed. In the last resort, when they disagree
with decisions that are taken, there is always the possibility
of "forking the code," introducing a change to the software that
not everyone agrees with, and then letting free choice and
market selection converge on the preferred iteration. The free
software ecosystem also exhibits diversity. Systems based on
GNU-Linux, for example, have distinct "flavors" with names like
Ubuntu, Debian, and Slackware, each with passionate adherents
and each optimized for a particular concern--beauty, ease of use,
technical manipulability. So far, the tradition of "rough
consensus and running code" seems to be proving itself
empirically as a robust governance system.
37
Why on earth should we care? People have come up with a
surprising way to create software. So what? There are at least
three reasons we might care. First, it teaches us something
about the limitations of conventional economics and the
counterintuitive business methods that thrive on networks.
Second, it might offer a new tool in our attempt to solve a
variety of social problems. Third, and most speculative, it
hints at the way that a global communications network can
sometimes help move the line between work and play, professional
and amateur, individual and community creation, rote production
and compensated "hobby."
38
We should pay attention to open source software because it shows
us something about business methods in the digital world--indeed
in the entire world of "information-based" products, which is
coming to include biotechnology. The scale of your network
matters. The larger the number of people who use your operating
system, make programs for your type of computer, create new
levels for your game, or use your device, the better off you
are. A single fax machine is a paperweight. Two make up a
communications link. Ten million and you have a ubiquitous
communications network into which your "paperweight" is now a
hugely valuable doorway.
39
This is the strange characteristic of networked goods. The
actions of strangers dramatically increase or decrease the
usefulness of your good. At each stage the decision of someone
else to buy a fax machine increases the value of mine. If I am
eating an apple, I am indifferent about whether you are too. But
if I have a fax machine then my welfare is actually improved by
the decisions of strangers to buy one. The same process works in
reverse. Buy a word processing program that becomes unpopular,
get "locked in" to using it, and find yourself unable to
exchange your work easily with others. Networks matter and
increasing the size of the networks continues to add benefits to
the individual members.
40
What's true for the users of networks is doubly so for the
producers of the goods that create them. From the perspective of
a producer of a good that shows strong network effects such as a
word processing program or an operating system, the optimal
position is to be the company that owns and controls the
dominant product on the market. The ownership and control is
probably by means of intellectual property rights, which are,
after all, the type of property rights one finds on networks.
The value of that property depends on those positive and
negative network effects. This is the reason Microsoft is worth
so much money. The immense investment in time, familiarity,
legacy documents, and training that Windows or Word users have
provides a strong incentive not to change products. The fact
that other users are similarly constrained makes it difficult to
manage any change. Even if I change word processor formats and
go through the trouble to convert all my documents, I still need
to exchange files with you, who are similarly constrained. From
a monopolist's point of view, the handcuffs of network effects
are indeed golden, though opinions differ about whether or not
this is a cause for antitrust action.
41
But if the position that yields the most revenue is that of a
monopolist exercising total control, the second-best position
may well be that of a company contributing to a large and widely
used network based on open standards and, perhaps, open
software. The companies that contribute to open source do not
have the ability to exercise monopoly control, the right to
extract every last cent of value from it. But they do have a
different advantage; they get the benefit of all the
contributions to the system without having to pay for them. The
person who improves an open source program may not work for IBM
or Red Hat, but those companies benefit from her addition, just
as she does from theirs. The system is designed to continue
growing, adding more contributions back into the commons. The
users get the benefit of an ever-enlarging network, while the
openness of the material diminishes the lock-in effects. Lacking
the ability to extract payment for the network good itself--the
operating system, say--the companies that participate typically
get paid for providing tied goods and services, the value of
which increases as the network does.
42
I write a column for the Financial Times, but I lack the fervor
of the true enthusiast in the "Great Game of Markets." By
themselves, counterintuitive business methods do not make my
antennae tingle. But as Larry Lessig and Yochai Benkler have
argued, this is something more than just another business
method. They point us to the dramatic role that openness--whether
in network architecture, software, or content--has had in the
success of the Internet. What is going on here is actually a
remarkable corrective to the simplistic notion of the tragedy of
the commons, a corrective to the Internet Threat storyline and
to the dynamics of the second enclosure movement. This commons
creates and sustains value, and allows firms and individuals to
benefit from it, without depleting the value already created. To
appropriate a phrase from Carol Rose, open source teaches us
about the comedy of the commons, a way of arranging markets and
production that we, with our experience rooted in physical
property and its typical characteristics, at first find
counterintuitive and bizarre. Which brings us to the next
question for open source. Can we use its techniques to solve
problems beyond the world of software production?
43
In the language of computer programmers, the issue here is "does
it scale?" Can we generalize anything from this limited example?
How many types of production, innovation, and research fit into
the model I have just described? After all, for many innovations
and inventions one needs hardware, capital investment, and
large-scale, real-world data collection--stuff, in its infinite
recalcitrance and facticity. Maybe the open source model
provides a workaround to the individual incentives problem, but
that is not the only problem. And how many types of innovation
or cultural production are as modular as software? Is open
source software a paradigm case of collective innovation that
helps us to understand open source software and not much else?
44
Again, I think this is a good question, but it may be the wrong
one. My own guess is that an open source method of production is
far more common than we realize. "Even before the Internet" (as
some of my students have taken to saying portentously), science,
law, education, and musical genres all developed in ways that
are markedly similar to the model I have described. The
marketplace of ideas, the continuous roiling development in
thought and norms that our political culture spawns, owes much
more to the distributed, nonproprietary model than it does to
the special case of commodified innovation that we think about
in copyright and patent. Not that copyright and patent are
unimportant in the process, but they may well be the exception
rather than the norm. Commons-based production of ideas is
hardly unfamiliar, after all.
45
In fact, all the mottos of free software development have their
counterparts in the theory of democracy and open society; "given
enough eyeballs, all bugs are shallow" is merely the most
obvious example. Karl Popper would have cheered.14 The
importance of open source software is not that it introduces us
to a wholly new idea. It is that it makes us see clearly a very
old idea. With open source the technology was novel, the
production process transparent, and the result of that process
was a "product" which outcompeted other products in the
marketplace. "How can this have happened? What about the tragedy
of the commons?" we asked in puzzlement, coming only slowly to
the realization that other examples of commons-based,
nonproprietary production were all around us.
46
Still, this does not answer the question of whether the model
can scale still further, whether it can be applied to solve
problems in other spheres. To answer that question we would need
to think more about the modularity of other types of inventions.
How much can they be broken down into chunks suitable for
distribution among a widespread community? Which forms of
innovation have some irreducible need for high capital
investment in distinctly nonvirtual components--a particle
accelerator or a Phase III drug trial? Again, my guess is that
the increasing migration of the sciences toward data- and
processing-rich models makes much more of innovation and
discovery a potential candidate for the distributed model.
Bioinformatics and computational biology, the open source
genomics project,15 the BioBricks Foundation I mentioned in the
last chapter, the possibility of distributed data scrutiny by
lay volunteers16--all of these offer intriguing glances into the
potential for the future. Finally, of course, the Internet is
one big experiment in, as Benkler puts it, peer-to-peer cultural
production.17
47
If these questions are good ones, why are they also the wrong
ones? I have given my guesses about the future of the
distributed model of innovation. My own utopia has it
flourishing alongside a scaled-down, but still powerful,
intellectual property regime. Equally plausible scenarios see it
as a dead end or as the inevitable victor in the war of
productive processes. These are all guesses, however. At the
very least, there is some possibility, even hope, that we could
have a world in which much more of intellectual and inventive
production is free. " 'Free' as in 'free speech,' " Richard
Stallman says, not "free as in 'free beer.' "18 But we could
hope that much of it would be both free of centralized control
and low- or no-cost. When the marginal cost of reproduction is
zero, the marginal cost of transmission and storage approaches
zero, the process of creation is additive, and much of the labor
doesn't charge, the world looks a little different.19 This is at
least a possible future, or part of a possible future, and one
that we should not foreclose without thinking twice. Yet that is
what we are doing. The Database Protection Bills and Directives,
which extend intellectual property rights to the layer of
facts;20 the efflorescence of software patents;21 the UCITA-led
validation of shrinkwrap licenses that bind third parties;22 the
Digital Millennium Copyright Act's anticircumvention
provisions23--the point of all of these developments is not
merely that they make the peer-to-peer model difficult, but that
in many cases they rule it out altogether. I will assert this
point here, rather than argue for it, but I think it can be (and
has been) demonstrated quite convincingly.24
48
The point is, then, that there is a chance that a new (or old,
but underrecognized) method of production could flourish in ways
that seem truly valuable--valuable to free speech, innovation,
scientific discovery, the wallets of consumers, to what William
Fisher calls "semiotic democracy,"25 and, perhaps, valuable to
the balance between joyful creation and drudgery for hire. True,
it is only a chance. True, this theory's scope of operation and
sustainability are uncertain. But why would we want to foreclose
it? That is what the recent expansions of intellectual property
threaten to do. And remember, these expansions were dubious even
in a world where we saw little or no possibility of the
distributed production model I have described, where discussion
of network effects had yet to reach the pages of The New
Yorker,26 and where our concerns about the excesses of
intellectual property were simply the ones that Jefferson,
Madison, and Macaulay gave us so long ago.
49
LEARNING FROM THE
SHARING ECONOMY
50
Accept for the sake of argument that the free software community
actually works, actually produces high-quality products capable
of competing in the market with proprietary alternatives.
Concede for a moment that the adoption of Creative Commons
licenses shows there are millions of creators out there who want
to share their works with others. Many of those creators even
want to allow the world to build on their material. Indeed, let
us concede that the whole history of the Web, from Wikipedia to
the obsessive and usefully detailed sites created on everything
from Vikings to shoe polishes, shows a desire to share one's
knowledge, to build on the work of others one has never met.
These efforts are remarkably varied. Some are ultimately aimed
at profit--even if their results are free. Think of IBM's open
source initiatives or musicians who release Creative Commons-
licensed work in order to get more club gigs. Some are provided
as a volunteer act of benevolence or civic duty, even if they
"compete" with expensive proprietary alternatives. Think of
Wikipedia or MIT's OpenCourseWare. When the infrastructure for
this collaboration does not exist, it gets assembled--and
quickly. Both the GPL and Creative Commons are examples. Accept
all of this. So what?
51
Lesson number one comes from the nonprofit activities--everything
from Wikipedia to Web sites created by enthusiasts. People like
to create and wish to share. In many cases they will do so
without financial reward. A surprising amount of useful,
creative, or expressive activity is generated without any
financial incentive at all.
52
Should this cause us to throw out the economic case for
copyrights? No. But it should lead us to reassess it. As I
explained in Chapter 1, copyright provides an incentive for two
distinct activities. First, it offers an incentive to create the
work in the first place. The author of Windows for Dummies or
Harry Potter gets a right to exclude others from copying the
work, a right that he or she can sell in the marketplace. The
goal is to offer a financial reason to devote time to this
particular creative activity. It is this incentive that is most
often cited when attempting to persuade policy makers to expand
protection. Second, it offers an incentive to distribute the
work--to typeset and print large quantities of the work and to
sell it to bookstores, or to broadcast it, or put it on movie
screens.
53
Each medium is economically different, of course. The economics
of the feature film are different from those of the book, the
magazine, or the operating system. Thus, we have never had very
good figures on the relative importance of these incentives. We
can only guess at how much of the incentive from copyright goes
to encouraging creation and how much to distribution. Until
recently, most types of distribution demanded higher levels of
capital. The industry structure that resulted often consisted of
creators who worked as wage or contract labor for
distributors--either never acquiring copyright in their work in
the first place or immediately transferring that copyright to
their employers. Because distribution was expensive, our
experience with material generated for fun or out of a love of
sharing was an essentially private and local one. You might have
a neighbor's photocopied sheet of baking recipes that worked
well at high altitudes, or of fishing techniques that worked
well on a particular lake, a song that a friend created for a
special occasion, or a short story you wrote for your kids--and
then typed up for them to tell to theirs. Financial incentives
were not needed to encourage the creation of the work, but the
cost of distribution dramatically limited its dissemination.
54
The single most dramatic thing that the Web has done by lowering
the cost of communication and distribution, at the same moment
that other electronic tools lowered the cost of production, is
to make this local and private activity a global and public one.
Someone, somewhere, will have written the guide to fishing on
that lake, baking at that altitude, washing windows, or treating
stings from Portuguese man-of-war jellyfish. Someone will have
taken a photo of the Duke Chapel or explained the history,
economics, and chemistry of shoe polish or distilling. Someone
might even have created a great class on music theory or
C???programming. Someone will have written a handy little
program to manage DNS requests on a local network. Bizarrely, at
least as far as the economists were concerned, these people all
wanted to share what they had made. Because of the genius of
search engines, and the implicit peer-review function that those
engines deduce from patterns of links to pages, I can find that
material when I need it.
55
True, much of the material on the Web is inane or insane,
confused, badly written, tendentious, and inaccurate. (It should
be noted that this is hardly a problem confined to the Web or
volunteer-generated material. Personally, I would not want
People magazine or Fox News in a time capsule to represent my
civilization. But some of the material on the Web is clearly
worse.) Yes, Wikipedia is occasionally inaccurate--though in one
test in Nature it stacked up well against the Encyclopedia
Britannica, and it is obviously much more encyclopedic in its
coverage. But all of this misses the point.
56
Consider how your expectations about information retrieval have
changed in the last fifteen years. We now simply assume that
questions about a piece of architecture, a bit of local history,
a recipe, or the true author of a song can all be answered
within seconds. We have forgotten what it is like to be
routinely in ignorance because of the unavailability of some
piece of information. One podcaster I talked to called it being
a member of "the right-click generation": "When I am walking
around and I see a building, I almost feel as though I ought to
be able to 'right click' it and have the architect's name pop
up." Consider that it now seems normal for a gay Iraqi man in
Baghdad to have a blog that offers hundreds of thousands of
readers around the world a literate and touching account of the
American occupation from a perspective entirely different from
that provided by the mainstream press.27 We think it normal for
a person of moderate resources to be able to speak to the world
from a war zone, whether or not he is affiliated with a
newspaper or credentialed by a corporation.
57
These examples are not the end of the process. Our methods of
sorting, ranking, and verifying the material generated are still
evolving. They may improve even beyond this point. We are only
fifteen years into this particular experiment, after all. And a
huge amount of this material is produced by our fellow citizens
without the profit motive.
58
Does this mean that we no longer need copyright or patent
protection to encourage the production and distribution of
creative work? No. The fishing tips are great, but I still might
buy a handsomely illustrated guide to take on the lake with me
or, even better, just stay at home and read A River Runs Through
It. The New Yorker, and not a sheaf of printouts from the Web,
still sits on my coffee table, though much of the high-quality
content I read comes to me online, for free, from strangers who
are generating it for pleasure, not profit, or who profit from
open sharing, not closed control. The online blogosphere
provides a vital counterpoint to mainstream media, but it exists
in a symbiotic--some would say parasitic--relationship with that
media and the network of professional news gatherers for which
it pays. Some of the most interesting open source production
methods actually rely on copyright. Even if they did not, open
source production would not suffice to run our pharmaceutical
industry (though it might help with certain stages of the drug
discovery process).
59
Still, just as it would be silly to dismiss the importance of
intellectual property based on our experience of blogs and
Wikipedia and open source software, it would be equally silly to
underestimate what the Web has taught us. The Web has enabled an
astonishing flowering of communication and expression, an
astounding democratization of creativity. We have learned just
how strong, and how useful, is the human urge to express,
communicate, invent, and create--provided the barriers to sharing
are lowered. These are the very things that copyright and patent
are supposed to encourage. For us to portray the Web--as the
Internet Threat story line does--as predominantly a threat to
creativity is simply perverse. For us to base our policies only
on that notion would be a tragedy. We might end up stultifying
one of the greatest explosions of human creativity the world has
ever seen by treating it as an unimportant marginal case and
instead designing our rules around the production processes of
commercial culture in the late twentieth century.
60
The shape of our copyright and to a lesser extent our patent
system comes from a world in which almost all large-scale
distribution was an expensive, capital-intensive enterprise. The
roles of gatekeeper and financier, producer and assembler,
distributor and advertiser, tended naturally to coalesce into
vertically integrated firms or symbiotic commercial
partnerships. Those firms were presumed to be the proxy for the
public interest when it came to intellectual property policy.
Who would know better than they what was needed? Occasionally,
device manufacturers would provide a counterweight--as in the
Sony case--where the defense of a particular "consumer freedom"
actually created a market for a complementary product. Artists
and authors might be trotted out as appealing spokespersons,
though the laws that were made only sporadically reflected their
economic and artistic interests. Librarians and educational
institutions had influence at the edges. Most of the time,
though, it was the assemblers and distributors of content whose
voices and assumptions about markets would be heard.
61
Out of this pattern of habit and influence, and out of much
deeper notions about authorship and invention that I have
explored elsewhere, developed an ideology, a worldview. Call it
maximalism. Its proponents sincerely believed in it and pursued
it even when it did not make economic sense. (Think how lucky
the movie industry is that it lost the Sony case.) It has been
the subject of this book. Its tenets are that intellectual
property is just like physical property, that rights need to
increase proportionately as copying costs decrease, and that, in
general, increasing levels of intellectual property protection
will yield increasing levels of innovation. Despite its defense
of ever-increasing government-granted monopolies, this ideology
cloaks itself in the rhetoric of free markets. The bumbling
state, whose interventions in the economy normally spell
disaster, turns into a scalpel-wielding genius when its
monopolies and subsidies are provided through intellectual
property rights rather than regulatory fiat. Above all, this way
of seeing the world minimizes the importance of creativity,
expression, and distribution that takes place outside its
framework and ignores or plays down the importance of the input
side of the equation--the need to focus on the material from
which culture and science are made, as well as the protected
expression and inventions made from that raw material.
62
This process was not--let me stress--was not a simple process of
economic determinism or industry conspiracy. Anyone who claims
that is the thesis of this book simply has not read it.
(Reviewers beware.) Let us start with economic determinism. It
was not a situation in which the law mechanistically recorded
the interests of the most economically important industries in
the area. This was the creation of a worldview, not the steely-
eyed calculation of profit and loss. Not only did many of the
rules we ended up with make no sense from the point of view of
some of the largest economic players in the area--think of the
device manufacturers, the search engines, and so on--they
frequently made no sense from the perspective of those proposing
them. Attempting to twist the law to make it illegal for
technology to interfere with your old business method is
frequently bad for the industry seeking the protection, as well
as for the technology, the market, and the wider society. Since
this worldview makes incumbents systematically blind to profit-
making opportunities that could be secured by greater openness,
rather than greater control, it actually disables them from
pursuing some of the most promising methods by which they could
have made money for their shareholders. Again, the chapter on
the Sony decision offers a salutary example.
63
Economic determinism does not explain the rules we have. Neither
are those rules simply a result of the manipulation of elected
officials by incumbent industries through crafty campaign
contributions and distorted evidence (though to be sure, there
was a lot of that as well). Many of the people who put forward
this worldview--both lobbyists and lobbied--sincerely believe that
more rights will always lead to more innovation, that all
property rights are the same, that we do not need to think about
both the input and output sides of the equation, that cheaper
copying techniques automatically require greater protections,
and so on.
64
What of the modest suggestions I put forward here? We could sum
them up thus: do not apply identical assumptions to physical and
intellectual property. Focus on both the inputs to and the
outputs of the creative process; protecting the latter may
increase the cost of the former. Look both at the role of the
public domain and the commons of cultural and scientific
material and at the need to provide incentives for creativity
and distribution through exclusive rights. More rights will not
automatically produce more innovation. Indeed, we should confine
rights as narrowly as possible while still providing the desired
result. Look at the empirical evidence before and after
increasing the level of protection. Pay attention to the
benefits as well as the costs of the new technologies and the
flowering of creativity they enable.
65
To me, these points seem bland, boring, obvious--verging on
tautology or pablum. To many believers in the worldview I have
described, they are either straightforward heresy or a
smokescreen for some real, underlying agenda--which is identified
as communism, anarchism, or, somewhat confusingly, both.
66
This account smacks of exaggeration, I know. How could things be
so one-sided? The best answer I can give came from a question I
was asked at a recent conference. The questioner pointed out
politely that it was unlikely that the policy-making process
would ignore such a fundamental and obvious set of points--points
that I myself observed had been well understood for hundreds of
years. I had used many examples of intellectual property rights
being extended--in length, breadth, scope. Why had I not spoken,
he asked, of all the times over the last fifty years when
intellectual property rights had been weakened, curtailed,
shortened? Since human beings were fallible, surely there were
occasions when the length of a copyright or patent term had
proved to be too long, or the scope of a right too large, and
the rights had been narrowed appropriately by legislation. Why
did I not cite any of these? The answer is simple. To the best
of my knowledge, there are none. Legislatively, intellectual
property rights have moved only in one direction--outward. (Court
decisions present a more complex picture, as the previous
chapter's discussion of software copyrights and business method
patents shows.)
67
What are the odds that the costs of new technologies are always
greater than their benefits as far as intellectual property
rights holders are concerned? This pattern is not a matter of
policies carefully crafted around the evidence. It is the fossil
record of fifty years of maximalism. If I lean toward the other
side of the story it is not because I am a foe of intellectual
property. It is because I believe our policies have become
fundamentally unbalanced--unbalanced in ways that actually blind
us to what is going on in the world of creativity.
68
We are living through an existence-proof that there are other
methods of generating innovation, expression, and creativity
than the proprietary, exclusionary model of sole control. True,
these methods existed before. Yet they tended to be local or
invisible or both. The Internet has shown conclusively and
visibly that--at least in certain sectors--we can have a global
flowering of creativity, innovation, and information sharing in
which intellectual property rights function in a very different
way than under the standard model of proprietary control. In
some cases, intellectual property rights were simply
irrelevant--much of the information sharing and indexing on the
Web falls within this category. In some cases they were used to
prevent exclusivity. Think of Creative Commons or the General
Public License. In some, they were actually impediments.
Software patents, for example, have a negative effect on open
source software development--one that policy makers are only now
slowly beginning to acknowledge.
69
It is important not to overstate how far the sharing economy can
get us. It might help to cut the costs of early-stage drug
development, as the Tropical Disease Initiative attempts to do
for neglected diseases. It will not generate a Phase III drug
trial or bring a drug to market. Sharing methods might be used
to generate cult movies such as Star Wreck: In the Pirkinning,
which was created using techniques borrowed from open source
software and is available under a Creative Commons license. They
will not produce a mammoth blockbuster like Ben Hur, or
Waterworld for that matter--results that will generate mixed
feelings. So there are real limitations to the processes I
describe.
70
But even acknowledging those limitations, it is fair to say that
one of the most striking events to occur during our lifetimes is
the transformation wrought by the Web, a transformation that is
partly driven by the extraordinary explosion of nonproprietary
creativity and sharing across digital networks. The cultural
expectation that a web of expression and information will just
be there--whatever subject we are discussing--is a fundamental
one, the one that in some sense separates us from our children.
With this as a background it is both bizarre and perverse that
we choose to concentrate our policy making only on maintaining
the business methods of the last century, only on the story line
of the Internet Threat, only on the dangers that the technology
poses to creativity (and it does pose some) and never on the
benefits.
71
What would it mean to pay attention to the changes I have
described? It would mean assessing the impact of rules on both
proprietary and nonproprietary production. For example, if the
introduction of a broad regime of software patents would render
open source software development more difficult (because
individual contributors cannot afford to do a patent search on
every piece of code they contribute), then this should be
reflected as a cost of software patents, to be balanced against
whatever benefits the system brought. A method for encouraging
innovation might, in fact, inhibit one form of it.
72
Paying attention to the last ten years means we need to realize
that nonproprietary, distributed production is not the poor
relation of traditional proprietary, hierarchically organized
production. This is no hippy lovefest. It is the business method
on which IBM has staked billions of dollars; the method of
cultural production that generates much of the information each
of us uses every day. It is just as deserving of respect and the
solicitude of policy makers as the more familiar methods pursued
by the film studios and proprietary software companies. Losses
due to sharing that failed because of artificially erected legal
barriers are every bit as real as losses that come about because
of illicit copying. Yet our attention goes entirely to the
latter.
73
The main thrust of the argument here is still firmly within the
Jeffersonian, Scottish Enlightenment tradition. Jefferson does
not wish to give the patent to Oliver Evans because he believes
the invention will be (and has been) generated anyway without
the granting of an intellectual property right and that there
are sufficient information retrieval methods to have practical
access to it. In this case, the information retrieval method is
not Google. It is a polymath genius combing his library in
Monticello for references to Persian irrigation methods. The
"embarrassment" caused by the unnecessary patent is added
expense and bureaucracy in agriculture and impediments to
further innovators, not the undermining of open source software.
But it is the same principle of cautious minimalism, the same
belief that much innovation goes on without proprietary control
and that intellectual property rights are the exception, not the
rule. When Benjamin Franklin, a man who surely deserved patents
under even the most stringent set of tests, chooses to forgo
them because he has secured so much benefit from the
contributions of others, he expresses Shirky's norm nicely.
74
Indeed, Jefferson's optimism depends partly on a view of
information sharing that captures beautifully the attitudes of
the generation that built the Web. The letter that I discussed
in Chapter 2 was widely cited for precisely this reason.
Remember these lines?
75
That ideas should freely spread from one to another over the
globe, for the moral and mutual instruction of man, and
improvement of his condition, seems to have been peculiarly and
benevolently designed by nature, when she made them, like fire,
expansible over all space, without lessening their density in
any point, and like the air in which we breathe, move, and have
our physical being, incapable of confinement or exclusive
appropriation.
76
What could encapsulate better the process by which information
spreads on a global network? What could more elegantly state the
norms of the "information wants to be free" generation? (Though
those who quoted him conveniently omitted the portions of his
analysis where he concedes that there are cases where
intellectual property rights may be necessary and desirable.)
77
In some ways, then, the explosion of nonproprietary and, in many
cases, noncommercial creativity and information sharing is
simply the vindication of Jefferson's comparison of ideas with
"fire . . . expansible over all space." The Web makes the simile
a reality and puts an exclamation point at the end of the
Jefferson Warning. All the more reason to pay attention to it.
But the creative commons I described here goes further. It
forces us to reconceptualize a form of life, a method of
production, and a means of social organization that we used to
relegate to the private world of informal sharing and
collaboration. Denied a commons by bad intellectual property
rules, we can sometimes build our own--which may in some ways do
even more for us than the zone of free trade, free thought, and
free action that Jefferson wished to protect.
78
Does all this mean that the Jefferson Warning is no longer
necessary? Can we mitigate the negative effects of intellectual
property expansion through a series of privately constructed
commons? The answers to those questions are, respectively, "no"
and "sometimes." Think of the story of retrospectively extended
copyright and orphan works. In many cases the problem with our
intellectual property rights is that they create barriers to
sharing--without producing an incentive in return--in ways that
can never be solved through private agreement. Twentieth century
culture will largely remain off-limits for digitization,
reproduction, adaptation, and translation. No series of private
contracts or licenses can fix the problem because the relevant
parties are not in the room and might not agree if they were.
79
Even when the parties are available and agree to share, the
benefits may not flow to all equally. Beset by a multitude of
vague patents of questionable worth and uncertain scope, large
information technology firms routinely create patent pools. IBM
tosses in thousands of patents, so does Hewlett or Dell. Each
agrees not to sue the other. This is great for the established
companies; they can proceed without fear of legal action from
the landmine patents that litter the technological landscape. As
far as the participants are concerned, the patent pool is almost
like the public domain--but a privatized public domain, a park
that only residents may enter. But what about the start up
company that does not have the thousands of patents necessary
for entry? They are not in as happy a situation. The patent pool
fixes the problem of poor patent quality and unclear scope--one
that Jefferson was worrying about 200 years ago. But it fixes it
only for the dominant firms, hurting competition in the process.
80
Attempts to form a commons may also backfire. The coordination
problems are legion. There are difficulties of compatibility in
licenses and the process, no matter how easy, still imposes
transaction costs. Nevertheless, with all of these
qualifications, the idea of the privately created commons is an
important addition to the world view that Jefferson provided, a
new tool in our attempt to craft a working system of innovation
and culture. No one who looks at the Web can doubt the power of
distributed, and frequently uncompensated, creativity in
constructing remarkable reference works, operating systems,
cultural conversations, even libraries of images and music. Some
of that innovation happens largely outside of the world of
intellectual property. Some of it happens in privately created
areas of sharing that use property rights and open, sometimes
even machine-readable, licenses to create a commons on which
others can build. The world of creativity and its methods is
wider than we had thought. That is one of the vital and exciting
lessons the Internet teaches us; unfortunately, the only one our
policy makers seem to hear is "cheaper copying means more
piracy."
Chapter 9: An Evidence-Free Zone
1
Perhaps some of the arguments in this book have convinced you.
Perhaps it is a mistake to think of intellectual property in the
same way we think of physical property. Perhaps limitations and
exceptions to those rights are as important as the rights
themselves. Perhaps the public domain has a vital and tragically
neglected role to play in innovation and culture. Perhaps
relentlessly expanding property rights will not automatically
bring us increased innovation in science and culture. Perhaps
the second enclosure movement is more troubling than the first.
Perhaps it is unwise to extend copyright again and again, and to
do so retrospectively, locking up most of twentieth-century
culture in order to protect the tiny fragment of it that is
still commercially available. Perhaps technological improvements
bring both benefits and costs to existing rights holders--both of
which should be considered when setting policy. Perhaps we need
a vigorous set of internal limitations and exceptions within
copyright, or control over content will inevitably become
control over the medium of transmission. Perhaps the Internet
should make us think seriously about the power of nonproprietary
and distributed production.
2
Saying all this gives us some guidance in how we should think.
It points out certain patterns of error. But its prescriptions
are not simple. Precisely because it is not a rejection of
intellectual property rights, but rather a claim that they only
work well through a process of consciously balancing openness
and control, public domain and private right, it still leaves
open the question of where that point of balance is and how to
strike it.
3
In this chapter I want to offer a suggestion that in any other
field would be stunningly obvious, boring even, but in the
funhouse mirror of intellectual property appears revolutionary.
We should make our policy based on empirical evidence of its
likely effects and there should be a formal requirement of
empirical reconsideration of those policies after they have been
implemented to see if they are working. Why is this a good idea?
4
Imagine a process of reviewing prescription drugs that goes like
this: representatives from the drug company come to the
regulators and argue that their drug works well and should be
approved. They have no evidence of this beyond a few anecdotes
about people who want to take it and perhaps some very simple
models of how the drug might affect the human body. The drug is
approved. No trials, no empirical evidence of any kind, no
follow-up. Or imagine a process of making environmental
regulations in which there were no data, and no attempts to
gather data, about the effects of the particular pollutants
being studied. Even the harshest critics of regulation would
admit we generally do better than this. But this is often the
way we make intellectual property policy.
5
So how do we decide the ground rules of the information age?
Representatives of interested industries come to regulators and
ask for another heaping slice of monopoly rent in the form of an
intellectual property right. They have doom-laden predictions,
they have anecdotes, carefully selected to pluck the
heartstrings of legislators, they have celebrities who
testify--often incoherently, but with palpable charisma--and they
have very, very simple economic models. The basic economic model
here is "If you give me a larger right, I will have a larger
incentive to innovate. Thus the bigger the rights, the more
innovation we will get. Right?"
6
As I have tried to show here using the words of Jefferson and
Macaulay and examples such as term extension, software
copyrights, and garage door openers, this logic is fallacious.
Even without data, the "more is better" idea is obviously
flawed. Copyrighting the alphabet will not produce more books.
Patenting E=?mc2 will not yield more scientific innovation.
Intellectual property creates barriers to, as well as incentives
toward, innovation. Jefferson agonized over the issue of when
the benefits exceed the costs of a new right. "I know well the
difficulty of drawing a line between the things which are worth
to the public the embarrassment of an exclusive patent, and
those which are not." It is not clear that contemporary policy
makers approach issues with anything like the same
sophistication or humility. But it would be an equal mistake to
conclude, as some do, that expansions of intellectual property
are never justified. Extensions of rights can help or hurt, but
without economic evidence beforehand and review afterward, we
will never know. This point should be obvious, banal, even
deeply boring, but sadly it is not.
7
From Jefferson and Macaulay and Adam Smith, I derived a second
point. In the absence of evidence on either side, the
presumption should be against creating a new, legalized
monopoly. The burden of proof should lie on those who claim, in
any particular case, that the state should step in to stop
competition, outlaw copying, proscribe technology, or restrict
speech. They have to show us that the existing protection is not
enough. But this presumption is a second-best solution and the
empirical emptiness of the debates frustrating.
8
This makes an occasion where there is some evidence a time for
celebration. What we need is a test case in which one country
adopts the proposed new intellectual property right and another
similarly situated country does not, and we can assess how they
are both doing after a number of years.
9
There is such a case. It is the "database right."
10
OWNING FACTS?
11
Europe adopted a Database Directive in 1996 which gave a high
level of copyright protection to databases and conferred a new
"sui generis" database right even on unoriginal compilations of
facts. In the United States, by contrast, in a 1991 case called
Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S. 340 (1991), the Supreme Court made it clear that unoriginal
compilations of facts are not copyrightable.
12
What does all this mean? Take the phone directory--that was the
product at issue in the Feist case. A white pages directory is a
database of names and numbers, compiled in alphabetical order by
name. Does anyone have an intellectual property right over it?
Not the particular dog-eared directory lying next to your phone.
Does the phone company that compiled it own the facts, the
numbers inside that directory? Could they forbid me from copying
them, adding others from surrounding areas, and issuing a
competing directory that I believed consumers would find more
valuable? This was an important issue for Feist because it went
to the heart of their business. They issued regional telephone
directories, combining records from multiple phone companies. In
this case, all the other companies in the region agreed to
license their data to Feist. Rural did not, so Feist copied the
information, checked as many entries as possible, adding
addresses to some of the listings, and published the combined
result. Rural sued and lost. The Supreme Court declared that
mere alphabetical listings and other unoriginal assemblies of
data cannot be copyrighted.
13
It may seem unfair that much of the fruit of the compiler's
labor may be used by others without compensation. As Justice
Brennan has correctly observed, however, this is not "some
unforeseen byproduct of a statutory scheme." It is, rather, "the
essence of copyright," and a constitutional requirement. The
primary objective of copyright is not to reward the labor of
authors, but "to promote the Progress of Science and useful
Arts." To this end, copyright assures authors the right to their
original expression, but encourages others to build freely upon
the ideas and information conveyed by a work. This principle,
known as the idea/expression or fact/expression dichotomy,
applies to all works of authorship. As applied to a factual
compilation, assuming the absence of original written
expression, only the compiler's selection and arrangement may be
protected; the raw facts may be copied at will. This result is
neither unfair nor unfortunate. It is the means by which
copyright advances the progress of science and art.1
14
Feist was not as revolutionary as some critics claimed it to be.
Most of the appeals courts in the United States had long held
this to be the case. As the Court pointed out in the passage
above, it is a fundamental tenet of the U.S. intellectual
property system that neither facts nor ideas can be owned. Feist
merely reiterated that point clearly and stressed that it was
not just a policy choice, it was a constitutional requirement--a
limit imposed by the Constitution's grant of power to Congress
to make copyright and patent laws.
15
Daily politics cares little for the limitations imposed by
constitutions or for the structural principle the Court
describes--that we should leave facts free for others to build
upon. Since 1991, a few database companies have lobbied the
Congress strenuously and continuously to create a special
database right over facts. Interestingly, apart from academics,
scientists, and civil libertarians, many database companies, and
even those well-known property haters, the U.S. Chamber of
Commerce, oppose the creation of such a right. They believe that
database providers can adequately protect themselves with
contracts or technical means such as passwords, can rely on
providing tied services, and so on. Moreover, they argue that
strong database protection may make it harder to generate
databases in the first place; the facts you need may be locked
up. We need to focus on the inputs as well as the outputs of the
process--a point I have tried to make throughout this book. The
pressure to create a new right continues, however, aided by
cries that the United States must "harmonize" with Europe,
where, you will remember, compilations of facts are strongly
protected by intellectual property rights, even if their
arrangement is unoriginal.
16
So here we have our natural experiment. One major economy
rejects such protection and resists pressure to create a new
right. A different major economic region, at a comparable level
of development, institutes the right with the explicit claim
that it will help to produce new databases and make that segment
of the economy more competitive. Presumably government
economists in the United States and the European Union have been
hard at work ever since, seeing if the right actually worked?
Well, not exactly.
17
Despite the fact that the European Commission has a legal
obligation to review the Database Directive for its effects on
competition, it was more than three years late issuing its
report. At first, during the review process, no attention was
paid to the actual evidence of whether the Directive helps or
hurts the European Union, or whether the database industry in
the United States has collapsed or flourished. That is a shame,
because the evidence was there and it was fairly shocking. Yet
finally, at the end of the process, the Commission did turn to
the evidence, as I will recount, and came to a remarkable
conclusion--which was promptly stifled for political reasons. But
we are getting ahead of ourselves.
18
How do we frame the empirical inquiry? Intellectual property
rights allow the creation of state-backed monopolies, and "the
general tendency of monopolies," as Macaulay pointed out, is "to
make articles scarce, to make them dear, and to make them bad."
Monopolies are an evil, but they must sometimes be accepted when
they are necessary to the production of some good, some
particular social goal. In this case, the "evil" is obviously
going to be an increase in the price of databases and the legal
ability to exclude competitors from their use--that, after all,
is the point of granting the new right. This right of exclusion
may then have dynamic effects, hampering the ability of
subsequent innovators to build on what went before. The "good"
is that we are supposed to get lots of new databases, databases
that we would not have had but for the existence of the database
right.
19
If the database right were working, we would expect positive
answers to three crucial questions. First, has the European
database industry's rate of growth increased since 1996, while
the U.S. database industry has languished? (The drop-off in the
U.S. database industry ought to be particularly severe after
1991 if the proponents of database protection are correct; they
argued the Feist case was a change in current law and a great
surprise to the industry.)
20
Second, are the principal beneficiaries of the database right in
Europe producing databases they would not have produced
otherwise? Obviously, if a society is handing over a database
right for a database that would have been created anyway, it is
overpaying--needlessly increasing prices for consumers and
burdens for competitors. This goes to the design of the
right--has it been crafted too broadly, so that it is not being
targeted to those areas where it is needed to encourage
innovation?
21
Third, and this one is harder to judge, is the new right
promoting innovation and competition rather than stifling it?
For example, if the existence of the right allowed a one-time
surge of newcomers to the market who then use their rights to
discourage new entrants, or if we promoted some increase in
databases but made scientific aggregation of large amounts of
data harder overall, then the database right might actually be
stifling the innovation it is designed to foment.
22
Those are the three questions that any review of the Database
Directive must answer. But we have preliminary answers to those
three questions and they are either strongly negative or
extremely doubtful.
23
Are database rights necessary for a thriving database industry?
The answer appears to be no. In the United States, the database
industry has grown more than twenty-five-fold since 1979
and--contrary to those who paint the Feist case as a
revolution--for that entire period, in most of the United States,
it was clear that unoriginal databases were not covered by
copyright. The figures are even more interesting in the legal
database market. The two major proponents of database protection
in the United States are Reed Elsevier, the owner of Lexis, and
Thomson Publishing, the owner of Westlaw. Fascinatingly, both
companies made their key acquisitions in the U.S. legal database
market after the Feist decision, at which point no one could
have thought unoriginal databases were copyrightable. This seems
to be some evidence that they believed they could make money
even without a database right. How? In the old-fashioned way:
competing on features, accuracy, tied services, making users pay
for entry to the database, and so on.
24
If those companies believed there were profits to be made, they
were right. Jason Gelman, a former Duke student, pointed out in
a recent paper that Thomson's legal regulatory division had a
profit margin of over 26 percent for the first quarter of 2004.
Reed Elsevier's 2003 profit margin for LexisNexis was 22.8
percent. Both profit margins were significantly higher than the
company average and both were earned primarily in the $6 billion
U.S. legal database market, a market which is thriving without
strong intellectual property protection over databases. (First
rule of thumb for regulators: when someone with a profit margin
over 20 percent asks you for additional monopoly protection,
pause before agreeing.)
25
What about Europe? There is some good news for the proponents of
database protection. As Hugenholtz, Maurer, and Onsrud point out
in a nice article in Science magazine, there was a sharp, one-
time spike in the number of companies entering the European
database market immediately following the implementation of the
Directive in member states.2 Yet their work, and "Across Two
Worlds,"3 a fascinating study by Maurer, suggests that the rate
of entry then fell back to levels similar to those before the
directive. Maurer's analysis shows that the attrition rate was
also very high in some European markets in the period following
the passage of the directive--even with the new right, many
companies dropped out.
26
At the end of the day, the British database industry--the
strongest performer in Europe--added about two hundred databases
in the three years immediately after the implementation of the
directive. In France, there was little net change in the number
of databases and the number of providers fell sharply. In
Germany, the industry added nearly three hundred databases
immediately following the directive--a remarkable surge--about two
hundred of which rapidly disappeared. During the same period,
the U.S. industry added about nine hundred databases. Bottom
line? Europe's industry did get a one-time boost and some of
those firms have stayed in the market; that is a benefit, though
a costly one. But database growth rates have gone back to
predirective levels, while the anticompetitive costs of database
protection are now a permanent fixture of the European
landscape. The United States, by contrast, gets a nice steady
growth rate in databases without paying the monopoly cost.
(Second rule of thumb for regulators: Do no harm! Do not create
rights without strong evidence that the incentive effect is
worth the anticompetitive cost.)
27
Now the second question. Is the Database Directive encouraging
the production of databases we would not have gotten otherwise?
Here the evidence is clear and disturbing. Again, Hugenholtz et
al. point out that the majority of cases brought under the
directive have been about databases that would have been created
anyway--telephone numbers, television schedules, concert times. A
review of more recent cases reveals the same pattern. These
databases are inevitably generated by the operation of the
business in question and cannot be independently compiled by a
competitor. The database right simply serves to limit
competition in the provision of the information. Recently, the
European Court of Justice implicitly underscored this point in a
series of cases concerning football scores, horse racing
results, and so on. Rejecting a protectionist and one-sided
opinion from its Advocate General, the court ruled that the mere
running of a business which generates data does not count as
"substantial investment" sufficient to trigger the database
right. It would be nice to think that this is the beginning of
some skepticism about the reach of the directive. Yet the court
provides little discussion of the economic reasons behind its
interpretation; the analysis is merely semantic and
definitional, a sharp contrast to its competition decisions.
28
So what kinds of creations are being generated by this bold new
right? The answer is somewhere between bathos and pathos. Here
are some of the wonderful "databases" that people found it
worthwhile litigating over: a Web site consisting of a
collection of 259 hyperlinks to "parenting resources," a
collection of poems, an assortment of advertisements, headings
referring to local news, and charts of popular music. The sad
list goes on and on. The European Commission might ask itself
whether these are really the kind of "databases" that we need a
legal monopoly to encourage and that we want to tie up judicial
resources protecting. The point that many more such factual
resources can be found online in the United States without any
legalized database protection also seems worthy of note. At the
very least, the evidence indicates that the right is drawn much
too broadly and triggered too easily in ways that produce
litigation but little social benefit.
29
Now, in one sense, these lawsuits over trivial collections of
hyperlinks and headlines might be seen as irrelevant. They may
indicate we are handing out rights unnecessarily--did we really
need a legal monopoly, and court involvement, to get someone to
compile hyperlinks on a Web page? But it is hard to see social
harm. As with the patents over "sealed crustless" peanut butter
sandwiches or "methods of swinging on a swing," we may shake our
heads at the stupidity of the system, but if the problems
consist only of trivial creations, at least we are not likely to
grieve because some vital piece of information was locked up.
But we should not be so quick to declare such examples
irrelevant. They tend to show that the system for drawing the
boundaries of the right is broken--and that is of general
concern, even if the issue at hand is not.
30
Finally, is the database right encouraging scientific innovation
or hurting it? Here the evidence is merely suggestive.
Scientists have claimed that the European database right,
together with the perverse failure of European governments to
take advantage of the limited scientific research exceptions
allowed by the directive, have made it much harder to aggregate
data, to replicate studies, and to judge published articles. In
fact, academic scientific bodies have been among the strongest
critics of database protection. But negative evidence, by its
nature, is hard to produce; "show me the science that did not
get done!" Certainly, both U.S. science and commerce have
benefited extraordinarily from the openness of U.S. data policy.
I will deal with this issue in the next part of this chapter.
31
If the United States does not give intellectual property
protection to raw data, to facts, how is it that the database
industry has managed to thrive here and to do better than in
Europe, which has extremely strong protection? The economists
described in Chapter 1 would surely tell us that this is a
potential "public goods" problem. If it is hard to exclude
others from the resource--it is cheap and easy to copy--and if the
use of the resource is not "rival"--if I don't use up your facts
by consulting them--then we ought to see the kind of dystopia
economists predict. What would that consist of? First it might
result in underproduction. Databases with a social value higher
than their cost of creation would not get made because the
creator could not get an adequate return on investment. In some
cases it might even lead to the reverse--overproduction, where
each party creates the database for itself. We get a social
overinvestment to produce the resource because there is no legal
right to exclude others from it. If you gave the first creator
an intellectual property right over the data, they could sell to
subsequent users at a price lower than their own cost to create
the database. Everyone would win. But the United States did not
give the intellectual property right and yet its database
industry is flourishing. There are lots of commercial database
providers and many different kinds of databases. How can this
be? Is the economic model wrong?
32
The answer to that is no, the model is not wrong. It is,
however, incomplete and all too often applied in sweeping ways
without acknowledging that its basic assumptions may not hold in
a particular case. That sounds vague. Let me give a concrete
example. Westlaw is one of the two leading legal database
providers and, as I mentioned before, one of the key proponents
of creating intellectual property rights over unoriginal
databases. (There is considerable question whether such a law
would be constitutional in the United States, but I will pass
over that argument for the moment.) Westlaw's "problem" is that
much of the material that it provides to its subscribers is not
covered by copyright. Under Section 105 of the U.S. Copyright
Act, works of the federal government cannot be copyrighted. They
pass immediately into the public domain. Thus all the federal
court decisions, from district courts all the way up to the
Supreme Court, all the federal statutes, the infinite complexity
of the Federal Register, all this is free from copyright. This
might seem logical for government-created work, for which the
taxpayer has already paid, but as I will explain in the next
section of the chapter, not every country adopts such a policy.
33
West, another Thomson subsidiary that owns Westlaw, publishes
the standard case reporter series. When lawyers or judges refer
to a particular opinion, or quote a passage within an opinion,
they will almost always use the page number of the West edition.
After all, if no one else can find the cases or statutes or
paragraphs of an opinion that you are referring to, legal
argument is all but impossible. (This might seem like a great
idea to you. I beg to differ.) As electronic versions of legal
materials became more prevalent, West began getting more
competition. Its competitors did two things that West found
unforgivable. First, they frequently copied the text of the
cases from West's electronic services, or CD-ROMs, rather than
retyping them themselves. Since the cases were works of the
federal government, this was perfectly legal provided the
competitors did not include West's own material, such as
summaries of the cases written by its employees or its key
number system for finding related issues. Second, the
competitors would include, within their electronic editions, the
page numbers to West's editions. Since lawyers need to cite the
precise words or arguments they are referring to, providing the
raw opinion alone would have been all but useless. Because
West's page numbers were one of the standard ways to cite case
opinions, competitors would indicate where the page breaks on
the printed page would have been, just as West did in its own
databases.
34
West's reaction to all of this was exactly like Apple's reaction
in the story I told in Chapter 5 about the iPod or like Rural's
reaction to the copying of its phone directory. This was theft!
They were freeloading on West's hard work! West had mixed its
sweat with these cites, and so should be able to exclude other
people from them! Since it could not claim copyright over the
cases, West claimed copyright over the order in which they were
arranged, saying that when its competitors provided its page
numbers for citation purposes, they were infringing that
copyright.
35
In the end, West lost its legal battles to claim copyright over
the arrangement of the collections of cases and the sequence in
which they were presented. The Court held that, as with the
phone directory, the order in which the cases were arranged
lacked the minimum originality required to sustain a copyright
claim.4 At this stage, according to the standard public goods
story, West's business should have collapsed. Unable to exclude
competitors from much of the raw material of its databases, West
would be undercut by competitors. More importantly, from the
point of view of intellectual property policy, its fate would
deter potential investors in other databases--databases that we
would lose without even knowing they could have been possible.
Except that is not the way it turned out. West has continued to
thrive. Indeed, its profits have been quite remarkable. How can
this be?
36
The West story shows us three ways in which we can leap too
quickly from the abstract claim that some information goods are
public goods--nonexcludable and nonrival--to the claim that this
particular information good has those attributes. The reality is
much more complex. Type www.westlaw.com into your Internet
browser. That will take you to the home page of West's excellent
legal research service. Now, I have a password to that site. You
probably do not. Without a password, you cannot get access to
West's site at all. To the average consumer, the password acts
as a physical or technical barrier, making the good
"excludable"--that is, making it possible to exclude someone from
it without invoking intellectual property rights. But what about
competitors? They could buy access and use that access to
download vast quantities of the material that is unprotected by
copyright. Or could they? Again, West can erect a variety of
barriers, ranging from technical limits on how much can be
downloaded to contractual restrictions on what those who
purchase its service can do ("No copying every federal case,"
for example).
37
Let's say the competitor somehow manages to get around all this.
Let's say it somehow avoids copying the material that West does
have a copyright over--such as the headnotes and case synopses.
The competitor launches their competing site at lower prices
amidst much fanfare. Do I immediately and faithlessly desert
West for a lower-priced competitor? Not at all. First of all,
there are lots of useful things in the West database that are
covered by copyright--law review articles and certain treatises,
for example. The competitor frequently cannot copy those without
coming to the same sort of agreements that West has with the
copyright holders. For much legal research, that secondary
material is as important as the cases. If West has both, and the
competitor only one, I will stick with West. Second, West's
service is very well designed. (It is only their copyright
policies I dislike, not the product.) If a judge cites a law
review article in a case, West will helpfully provide a
hyperlink to the precise section of the article she is referring
to. I can click on it and in a second see what the substance of
the argument is. The reverse is true if a law review article
cites a statute or a case. Cases have "flags" on them indicating
whether they have been overruled or cited approvingly in
subsequent decisions. In other words, faced with the competitive
pressure of those who would commoditize their service and
provide it at lower cost, West has done what any smart company
would: added features and competed by offering a superior
service. Often it has done so by "tying" its uncopyrightable
data structures to its huge library of copyrighted legal
material.
38
The company that challenged Westlaw in court was called
Hyperlaw. It won triumphantly. The courts declared that federal
cases and the page numbers in the West volumes were in the
public domain. That decision came in 1998 and Westlaw has
lobbied hard since then to reverse it by statute, to create some
version of the Database Directive in the United States. To date,
they have failed. The victor, Hyperlaw, has since gone out of
business. Westlaw has not.
39
This little story contains a larger truth. It is true that
innovation and information goods will, in general, tend to be
less excludable and less rival than a ham sandwich, say. But, in
practice, some of them will be linked or connected in their
social setting to other phenomena that are highly excludable.
The software can easily be copied--but access to the help lines
can be restricted with ease. Audiences cannot easily be excluded
from viewing television broadcasts, but advertisers can easily
be excluded from placing their advertisements in those programs.
The noncopyrightable court decisions are of most use when
embedded within a technical system that gives easy access to
other material--some of it copyrighted and all of it protected by
technical measures and contractual restrictions. The music file
can be downloaded; the band's T-shirt or the experience of the
live concert cannot. Does this mean that we never need an
intellectual property right? Not at all. But it does indicate
that we need to be careful when someone claims that "without a
new intellectual property right I am doomed."
40
One final story may drive home the point. When they read Feist
v. Rural, law students often assume that the only reason Feist
offered to license the white pages listings from Rural is
because they (mistakenly) thought they were copyrighted. This is
unlikely. Most good copyright lawyers would have told you at the
time of the Feist case that the "sweat of the brow" decisions
that gave copyright protection based on hard work were not good
law. Most courts of appeals had said so. True, there was some
legal uncertainty, and that is often worth paying to avoid. But
switch the question around and suppose it is the day after the
Supreme Court decides the Feist case, and Feist is heading off
into another market to try to make a new regional phone
directory. Do they now just take the numbers without paying for
them, or do they still try to negotiate a license? The latter is
overwhelmingly likely. Why? Well, for one thing, they would get
a computer-readable version of the names and would not have to
retype or optically scan them. More importantly, the contract
could include a right to immediate updates and new listings.
41
The day after the Feist decision, the only thing that had
changed in the telephone directory market was that telephone
companies knew for sure, rather than merely as a probability,
that if they refused to license, their competitors could
laboriously copy their old listings without penalty. The nuclear
option was no longer available. Maybe the price demanded would
be a little lower. But there would still be lots of good reasons
for Feist to buy the information, even though it was
uncopyrighted. You do not always need an intellectual property
right to make a deal. Of course, that is not the whole story.
Perhaps the incentives provided by other methods are
insufficient. But in the U.S. database industry they do not seem
to have been. Quite the contrary. The studies we have on the
European and the American rules on database rights indicate that
the American approach simply works better.
42
I was not always opposed to intellectual property rights over
data. Indeed, in a book written before the enactment of the
Database Directive, I said that there was a respectable economic
argument that such protection might be warranted and that we
needed research on the issue.5 Unfortunately, Europe got the
right without the research. The facts are now in. If the
European Database Directive were a drug, the government would be
pulling it from the market until its efficacy and harmfulness
could be reassessed. At the very least, the Commission needed a
detailed empirical review of the directive's effects, and needs
to adjust the directive's definitions and fine-tune its
limitations. But there is a second lesson. There is more
discussion of the empirical economic effects of the Database
Directive in this chapter than in the six-hundred-page review of
the directive that the European Commission paid a private
company to conduct, and which was the first official document to
consider the issue.
43
That seemed to me and to many other academics to be a scandal
and we said so as loudly as we could, pointing out the empirical
evidence suggesting that the directive was not working. Yet if
it was a scandal, it was not a surprising one, because the
evidence-free process is altogether typical of the way we make
intellectual property policy. President Bush is not the only one
to make "faith-based" decisions.
44
There was, however, a ray of hope. In its official report on the
competitive effects of the Database Directive, the European
Commission recently went beyond reliance on anecdote and
industry testimony and did something amazing and admirable. It
conducted an empirical evaluation of whether the directive was
actually doing any good.
45
The report honestly described the directive as "a Community
creation with no precedent in any international convention."
Using a methodology similar to the one in this chapter on the
subject, the Commission found that "the economic impact of the
'sui generis' right on database production is unproven.
Introduced to stimulate the production of databases in Europe,
the new instrument has had no proven impact on the production of
databases."6
46
In fact, their study showed that the production of databases had
fallen to pre-directive levels and that the U.S. database
industry, which has no such intellectual property right, was
growing faster than the European Union's. The gap appears to be
widening. This is consistent with the data I had pointed out in
newspaper articles on the subject, but the Commission's study
was more recent and, if anything, more damning.
47
Commission insiders hinted that the study may be part of a
larger--and welcome--transformation in which a more professional
and empirical look is being taken at the competitive effects of
intellectual property protection. Could we be moving away from
faith-based policy in which the assumption is that the more new
rights we create, the better off we will be? Perhaps. But
unfortunately, while the report was a dramatic improvement,
traces of the Commission's older predilection for faith-based
policy and voodoo economics still remain.
48
The Commission coupled its empirical study of whether the
directive had actually stimulated the production of new
databases with another intriguing kind of empiricism. It sent
out a questionnaire to the European database industry asking if
they liked their intellectual property right--a procedure with
all the rigor of setting farm policy by asking French farmers
how they feel about agricultural subsidies. More bizarrely
still, the report sometimes juxtaposed the two studies as if
they were of equivalent worth. Perhaps this method of decision
making could be expanded to other areas. We could set
communications policy by conducting psychoanalytic interviews
with state telephone companies--let current incumbents' opinions
determine what is good for the market as a whole. "What is your
emotional relationship with your monopoly?" "I really like it!"
"Do you think it hurts competition?" "Not at all!"
49
There are also a few places where the reasoning in the report
left one scratching one's head. One goal of the database right
was to help close the gap between the size of the European and
U.S. database markets. Even before the directive, most European
countries already gave greater protection than the United States
to compilations of fact. The directive raised the level still
higher. The theory was that this would help build European
market share. Of course, the opposite is also possible. Setting
intellectual property rights too high can actually stunt
innovation. In practice, as the Commission's report observes,
"the ratio of European / U.S. database production, which was
nearly 1:2 in 1996, has become 1:3 in 2004."7 Europe had started
with higher protection and a smaller market. Then it raised its
level of protection and lost even more ground. Yet the report
was oddly diffident about the possibility that the U.S. system
actually works better.
50
In its conclusion, the report offered a number of possibilities,
including repealing the directive, amending it to limit or
remove the "sui generis" right while leaving the rest of the
directive in place, and keeping the system as it is. The first
options are easy to understand. Who would want to keep a system
when it is not increasing database production, or European
market share, and, indeed, might be actively harmful? Why leave
things as they are? The report offers several reasons.
51
First, database companies want to keep the directive. (The
report delicately notes that their "endorsement . . . is
somewhat at odds with the continued success of U.S. publishing
and database production that thrives without . . . [such]
protection," but nevertheless appears to be "a political
reality.") Second, repealing the directive would reopen the
debate on what level of protection is needed. Third, change may
be costly.
52
Imagine applying these arguments to a drug trial. The patients
in the control group have done better than those given the drug
and there is evidence that the drug might be harmful. But the
drug companies like their profits and want to keep the drug on
the market. Though "somewhat at odds" with the evidence, this is
a "political reality." Getting rid of the drug would reopen the
debate on the search for a cure. Change is costly--true. But what
is the purpose of a review if the status quo is always to be
preferred?
53
The final result? Faced with what Commission staff members tell
me was a tidal wave of lobbying from publishers, the Commission
quietly decided to leave the directive unchanged, despite the
evidence. The result itself is not remarkable. Industry capture
of a regulatory apparatus is hardly a surprise. What is
remarkable is that this is one of the first times any entity
engaged in making intellectual property policy on the
international level has even looked seriously at the empirical
evidence of that policy's effects.
54
To be sure, figures are thrown around in hearings. The software
industry will present studies showing, for example, that it has
lost billions of dollars because of illicit copying. It has
indeed lost profits relative to what it could get with all the
benefits of cheaper copying and transmission worldwide and with
perfect copyright enforcement as well. (Though the methodology
of some of the studies, which assumes that each copier would
have paid full price--is ridiculous.) But this simply begs the
question. A new technology is introduced that increases the size
of your market and decreases your costs dramatically, but also
increases illicit copying. Is this cause for state intervention
to increase your level of rights or the funds going toward
enforcement of copyright law, as opposed to any other law
enforcement priority? The question for empirical analysis, both
before and after a policy change, should be "Is this change
necessary in order to maintain incentives for production and
distribution? Will whatever benefits it brings outweigh the
costs of static and dynamic losses--price increases to consumers
and impediments to future innovators?" The content companies
might still be able to justify the extensions of their rights.
But they would be doing so in the context of a rational,
evidence-based debate about the real goals of intellectual
property, not on the assumption that they have a natural right
to collect all the economic surplus gained by a reduction in the
costs of reproduction and distribution.
55
DOES PUBLIC INFORMATION WANT TO BE FREE?
56
The United States has much to learn from Europe about
information policy. The ineffectively scattered U.S. approach to
data privacy, for example, produces random islands of privacy
protection in a sea of potential vulnerability. Until recently,
your video rental records were better protected than your
medical records. Europe, by contrast, has tried to establish a
holistic framework, a much more effective approach. But there
are places where the lessons should flow the other way. The
first one, I have suggested, is database protection. The second
is a related but separate issue: the legal treatment of publicly
generated data, the huge, and hugely important, flow of
information produced by government-funded activities--from
ordnance survey maps and weather data to state-produced texts,
traffic studies, and scientific information. How is this flow of
information distributed? The norm turns out to be very different
in the United States and in Europe.
57
In one part of the world, state-produced data flows are
frequently viewed as revenue sources. They are often copyrighted
or protected by database rights. Many of the departments which
produce them attempt to make a profit or at least to recover
their entire operating costs through user fees. It is heresy to
suggest that the taxpayer has already paid for the production of
this data and should not have to do so twice. The other part of
the world practices a benign form of information socialism. By
law, any text produced by the central government is free from
copyright and passes immediately into the public domain. The
basic norm is that public data flows should be available at the
cost of reproduction alone.
58
It is easy to guess which area is which. The United States is
surely the profit and property-obsessed realm, Europe the place
where the state takes pride in providing data as a public
service? No, actually, it is the other way around.
59
Take weather data. The United States makes complete weather data
available to all at the cost of reproduction. If the superb
government Web sites and data feeds are insufficient, for the
cost of a box of blank DVDs you can have the entire history of
weather records across the continental United States. European
countries, by contrast, typically claim government copyright
over weather data and often require the payment of substantial
fees. Which approach is better? I have been studying the issue
for fifteen years, and if I had to suggest a single article it
would be the magisterial study by Peter Weiss called "Borders in
Cyberspace," published by the National Academies of Science.8
Weiss shows that the U.S. approach generates far more social
wealth. True, the information is initially provided for free,
but a thriving private weather industry has sprung up which
takes the publicly funded data as its raw material and then adds
value to it. The U.S. weather risk management industry, for
example, is more than ten times bigger than the European one,
employing more people, producing more valuable products,
generating more social wealth. Another study estimates that
Europe invests 9.5 billion Euros in weather data and gets
approximately 68 billion back in economic value--in everything
from more efficient farming and construction decisions to better
holiday planning--a sevenfold multiplier. The United States, by
contrast, invests twice as much--19 billion--but gets back a
return of 750 billion Euros, a thirty-nine-fold multiplier.
60
Other studies suggest similar patterns elsewhere, in areas
ranging from geospatial data to traffic patterns and
agriculture. The "free" information flow is better at priming
the pump of economic activity.
61
Some readers may not thrill to this way of looking at things
because it smacks of private corporations getting a "free ride"
on the public purse--social wealth be damned. But the benefits of
open data policies go further. Every year the monsoon season
kills hundreds and causes massive property damage in Southeast
Asia. One set of monsoon rains alone killed 660 people in India
and left 4.5 million homeless. Researchers seeking to predict
the monsoon sought complete weather records from the United
States and Europe so as to generate a model based on global
weather patterns. The U.S. data was easily and cheaply available
at the cost of reproduction. The researchers could not afford to
pay the price asked by the European weather services, precluding
the "ensemble" analysis they sought to do. Weiss asks
rhetorically, "What is the economic and social harm to over 1
billion people from hampered research?" In the wake of the
outpouring of sympathy for tsunami victims in the same region,
this example seems somehow even more tragic. Will the pattern be
repeated with seismographic, cartographic, and satellite data?
One hopes not.
62
The European attitude may be changing. Competition policy has
already been a powerful force in pushing countries to rethink
their attitudes to government data. The European Directive on
the Reuse of Public Sector Information takes large strides in
the right direction, as do studies by the Organization for
Economic Co-operation and Development (OECD) and several
national initiatives.9 Unfortunately, though, most of these
follow the same pattern. An initially strong draft is watered
down and the utterly crucial question of whether data should be
provided at the marginal cost of reproduction is fudged or
avoided. This is a shame. Again, if we really believed in
evidence-based policy making, the debate would be very
different.
63
BREAKING THE DEAL
64
What would the debate look like if we took some of the steps I
mention here? Unfortunately there are very few examples of
evidence-based policy making, but the few that do exist are
striking.
65
In 2006, the government-convened Gowers Review of intellectual
property policy in the United Kingdom considered a number of
proposals on changes to copyright law, including a retrospective
extension of sound recording copyright terms.10 The copyright
term for sound recordings in the United Kingdom is fifty years.
(It is longer for compositions.) At the end of the fifty-year
period, the recording enters the public domain. If the
composition is also in the public domain--the great orchestral
works of Beethoven, Brahms, and Mozart, for example, or the jazz
classics of the early twentieth century--then anyone can copy the
recording. This means we could make it freely available in an
online repository for music students throughout Britain--perhaps
preparing the next generation of performers--or republish it in a
digitally cleansed and enhanced edition. If the composition is
still under copyright, as with much popular music, then the
composer is still entitled to a licensing fee, but now any music
publisher who pays that fee can reissue the work--introducing
competition and, presumably, bringing down prices of the
recording.
66
The recording industry, along with successful artists such as
Sir Cliff Richard and Ian Anderson of Jethro Tull, wished to
extend the fifty-year term to ninety-five years, or perhaps even
longer--the life of the performer, plus seventy years. This
proposal was not just for new recordings, but for the ones that
have already been made.
67
Think of the copyright system as offering a deal to artists and
record companies. "We will enlist the force of the state to give
you fifty years of monopoly over your recordings. During that
time, you will have the exclusive right to distribute and
reproduce your recording. After that time, it is available to
all, just as you benefited from the availability of public
domain works from your predecessors. Will you make records under
these terms?"
68
Obviously, fifty years of legalized exclusivity was enough of an
incentive to get them to make the music in the first place. We
have the unimpeachable evidence that they actually did. Now they
want to change the terms of the deal retrospectively. They say
this will "harmonize" the law internationally, give recordings
the same treatment as compositions, help struggling musicians,
and give the recording industry some extra money that it might
spend on developing new talent. (Or on Porsches, shareholder
dividends, and plastic ducks. If you give me another forty-five
years of monopoly rent, I can spend it as I wish.)
69
Change the context and think about how you would react to this
if the deal was presented to you personally. You hired an artist
to paint a portrait. You offered $500. He agreed. You had a
deal. He painted the painting. You liked it. You gave him the
money. A few years later he returned. "You owe me another $450,"
he said.
70
You both looked at the contract. "But you agreed to paint it for
$500 and I paid you that amount." He admitted this was true, but
pointed out that painters in other countries sometimes received
higher amounts, as did sculptors in our own country. In fact, he
told you, all painters in our country planned to demand another
$450 for each picture they had already painted as well as for
future pictures. This would "harmonize" our prices with other
countries, put painting on the same footing as sculpture, and
enable painters to hire more apprentices. His other argument was
that painters often lost money. Only changing the terms of their
deals long after they were struck could keep them in business.
Paying the money was your duty. If you did not pay, it meant
that you did not respect art and private property.
71
You would find these arguments absurd. Yet they are the same
ones the record industry used, relying heavily on the confusions
against which this book has warned. Is the record companies'
idea as outrageous as the demands of my imaginary painter? It is
actually worse.
72
The majority of sound recordings made more than forty years ago
are commercially unavailable. After fifty years, only a tiny
percentage are still being sold. It is extremely hard to find
the copyright holders of the remainder. They might have died,
gone out of business, or simply stopped caring. Even if the
composer can be found, or paid through a collection society,
without the consent of the holder of the copyright over the
musical recording, the work must stay in the library. These are
"orphan works"--a category that probably comprises the majority
of twentieth-century cultural artifacts.
73
Yet as I pointed out earlier, without the copyright holder's
permission, it is illegal to copy or redistribute or perform
these works, even if it is done on a nonprofit basis. The goal
of copyright is to encourage the production of, and public
access to, cultural works. It has done its job in encouraging
production. Now it operates as a fence to discourage access. As
the years go by, we continue to lock up 100 percent of our
recorded culture from a particular year in order to benefit an
ever-dwindling percentage--the lottery winners--in a grotesquely
inefficient cultural policy.
74
Finally, fifty years after they were made, sound recordings
enter the public domain in the United Kingdom (though as I
pointed out earlier, licensing fees would still be due to the
composer if the work itself was still under copyright). Now
anyone--individual, company, specialist in public domain
material--could offer the work to the public. But not if the
record companies can persuade the government otherwise. Like my
imaginary painter, they want to change the terms of the deal
retrospectively. But at least the painter's proposal would not
make the vast majority of paintings unavailable just to benefit
a tiny minority of current artists.
75
The recording industry's proposal for retrospective extension
was effectively a tax on the British music-buying public to
benefit the copyright holders of a tiny proportion of sound
recordings. The public loses three times. It loses first when it
is forced to continue to pay monopoly prices for older,
commercially available music, rather than getting the benefit of
the bargain British legislators originally offered: fifty years
of exclusivity, then the public domain. The public loses a
second time when, as a side effect, it is denied access to
commercially unavailable music; no library or niche publisher
can make the forgotten recordings available again. Finally, the
public loses a third time because allowing retrospective
extensions will distort the political process in the future,
leading to an almost inevitable legislative capture by the tiny
minority who find that their work still has commercial value at
the end of the copyright term they were originally granted. As
Larry Lessig has pointed out repeatedly, the time to have the
debate about the length of the copyright term is before we know
whose works will survive commercially.
76
The whole idea is very silly. But if this is the silly idea we
wish to pursue, then simply increase the income tax
proportionately and distribute the benefits to those record
companies and musicians whose music is still commercially
available after fifty years. Require them to put the money into
developing new artists--something the current proposal does not
do. Let all the other recordings pass into the public domain.
77
Of course, no government would consider such an idea for a
moment. Tax the public to give a monopoly windfall to those who
already hit the jackpot, because they claim their industry
cannot survive without retrospectively changing the terms of its
deals? It is indeed laughable. Yet it is a far better proposal
than the one that was presented to the Gowers Review.
78
What happened next was instructive. The Review commissioned an
economic study of the effects of copyright term extension--both
prospective and retrospective--on recorded music from the
University of Cambridge's Centre for Intellectual Property and
Information Law. The resulting document was a model of its
kind.11
79
With painstaking care and a real (if sometimes fruitless)
attempt to make economic arguments accessible to ordinary human
beings, the study laid out the costs and benefits of extending
the copyright term over sound recordings. It pointed out that
the time to measure the value of a prospective term extension is
at the moment the copyright is granted. Only then does it
produce its incentive effects. The question one must ask is how
much value today does it give an artist or record company to
have their copyright extended by a year at the end of the
existing period of protection. Then one must look to see whether
the benefits of the added incentive outweigh the social costs it
imposes. To put it another way, if the state were selling today
the rights to have protection from year fifty to year ninety-
five, how much would a rational copyright holder pay,
particularly knowing that there is only a small likelihood the
work will even be commercially available to take advantage of
the extension? Would that amount be greater than the losses
imposed on society by extending the right?
80
Obviously, the value of the extension is affected by our
"discount rate"--the annual amount by which we must discount a
pound sterling in royalties I will not receive for fifty-one
years in order to find its value now. Unsurprisingly, one finds
that the value of that pound in the future is tiny at the moment
when it matters--today--in the calculation of an artist or
distributor making the decision whether to create. Conservative
estimates yield a present value between 3 percent and 9 percent
of the eventual amount. By that analysis, a pound in fifty years
is worth between three and nine pence to you today, while other
estimates have the value falling below one penny. This seems
unlikely to spur much creativity at the margin. Or to put it in
the more elegant language of Macaulay, quoted in Chapter 2:
81
I will take an example. Dr. Johnson died fifty-six years
ago. If the law were what my honourable and learned friend
wishes to make it, somebody would now have the monopoly of Dr.
Johnson's works. Who that somebody would be it is impossible to
say; but we may venture to guess. I guess, then, that it would
have been some bookseller, who was the assign of another
bookseller, who was the grandson of a third bookseller, who had
bought the copyright from Black Frank, the Doctor's servant and
residuary legatee, in 1785 or 1786. Now, would the knowledge
that this copyright would exist in 1841 have been a source of
gratification to Johnson? Would it have stimulated his
exertions? Would it have once drawn him out of his bed before
noon? Would it have once cheered him under a fit of the spleen?
Would it have induced him to give us one more allegory, one more
life of a poet, one more imitation of Juvenal? I firmly believe
not. I firmly believe that a hundred years ago, when he was
writing our debates for the Gentleman's Magazine, he would very
much rather have had twopence to buy a plate of shin of beef at
a cook's shop underground.12
82
The art form is different, but the thought of a 1960s Cliff
Richard or Ian Anderson being "cheered under a fit of the
spleen" by the prospect of a copyright extension fifty years
hence is truly a lovely one.
83
Considering all these factors, as well as the effects on
investment in British versus American music and on the balance
of trade, the Cambridge study found that the extension would
cost consumers between 240 and 480 million pounds, far more than
the benefits to performers and recording studios. (In practice,
the report suggested, without changes in the law, most of the
benefits would not have gone to the original recording artist in
any case.) It found prospective extension led to a clear social
welfare loss. What of retrospective extension?
84
The report considered, and found wanting, arguments that
retrospective extension is necessary to encourage "media
migration"--the digitization of existing works, for example. In
fact, most studies have found precisely the reverse--that public
domain works are more available and more frequently adapted into
different media. (Look on Amazon.com for a classic work that is
out of copyright--Moby-Dick, for example--and see how many
adaptations and formats are available.) It also rejected the
argument that harmonization alone was enough to justify
extension--retrospective or prospective--pointing out the
considerable actual variation in both term and scope of rights
afforded to performers in different countries. Finally, it
warned of the "hidden 'ratcheting' effect of harmonisation which
results from the fact that harmonisation is almost invariably
upwards." Its conclusion was simple:
85
[R]etrospective term extensions reduce social welfare. Thus,
in this case, it would seem that basic theory alone is
sufficient to provide strong, and unambiguous, guidance for
policy-makers. . . . We therefore see no reason to quarrel with
the consensus of the profession on this issue which as summed up
by Akerlof et al. . . . [states] categorically that . . .
"[retrospective] extension provides essentially no incentive to
create new works. Once a work is created, additional
compensation to the producer is simply a windfall."13
86
The Gowers Review agreed. Its fourth recommendation read simply,
"Policy makers should adopt the principle that the term and
scope of protection for IP rights should not be altered
retrospectively." Perhaps more important, though, was the simple
paragraph at the front of the document captioned "The Approach
of the Review." It begins thus: "The Review takes an evidence-
based approach to its policy analysis and has supplemented
internal analysis by commissioning external experts to examine
the economic impact of changes. . . ."
87
Why specify that one was taking an "evidence-based" approach? At
first, the comment seems unnecessary. What other approach would
one take? Anecdotal? Astrological? But there is a framework in
which empirical evidence of the effects of policy simply seems
irrelevant--one based on natural right. When the Review was given
to the House of Commons Select Committee on Culture, Media and
Sport, that frame of mind was much in evidence:
88
The Gowers Review undertook an extensive analysis of the
argument for extending the term. On economic grounds, the Review
concluded that there was little evidence that extension would
benefit performers, increase the number of works created or made
available, or provide incentives for creativity; and it noted a
potentially negative effect on the balance of trade. . . .
Gowers's analysis was thorough and in economic terms may be
correct. It gives the impression, however, of having been
conducted entirely on economic grounds. We strongly believe that
copyright represents a moral right of a creator to choose to
retain ownership and control of their own intellectual property.
We have not heard a convincing reason why a composer and his or
her heirs should benefit from a term of copyright which extends
for lifetime and beyond, but a performer should not. . . . Given
the strength and importance of the creative industries in the
U.K., it seems extraordinary that the protection of intellectual
property rights should be weaker here than in many other
countries whose creative industries are less successful.14
89
A couple of things are worth noting here. The first is that the
Committee is quite prepared to believe that the effects of term
extension would not benefit performers or provide incentives for
creativity, and even to believe that it would hurt the balance
of trade. The second is the curious argument in the last
sentence. Other countries have stronger systems of rights and
are less successful. We should change our regime to be more like
them! Obviously the idea that a country's creative industries
might be less successful because their systems of rights were
stronger does not occur to the Committee for a moment. Though it
proclaims itself to be unaffected by economic thought, it is in
fact deeply influenced by the "more rights equals more
innovation" ideology of maximalism that I have described in
these pages.
90
Nestling between these two apparently contradictory ideas is a
serious argument that needs to be confronted. Should we ignore
evidence--even conclusive evidence--of negative economic effects,
harm to consumers, and consequences for the availability of
culture because we are dealing with an issue of moral right,
almost natural right? Must we extend the rights of the artists
who recorded those songs (or rather the record companies who
immediately acquired their copyrights) because they are simply
theirs as a matter of natural justice? Do performers have a
natural right to recorded songs either because they have labored
on them, mixing their sweat with each track, or because
something of their personality is forever stamped into the song?
Must we grant an additional forty-five years of commercial
exclusivity, not because of economic incentive, but because of
natural right?
91
Most of us feel the pull of this argument. I certainly do. But
as I pointed out in Chapter 2, there are considerable problems
with such an idea. First, it runs against the premises of actual
copyright systems. In the United States, for example, the
Constitution resolutely presents the opposite picture. Exclusive
rights are to encourage progress in science and the useful arts.
The Supreme Court has elaborated on this point many times,
rejecting both labor-based "sweat of the brow" theories of
copyright and more expansive visions based on a natural right to
the products of one's genius--whether inventions or novels.
Britain, too, has a history of looking to copyright as a
utilitarian scheme--though with more reference to, and legal
protection of, particular "moral rights" than one finds in the
United States. But even in the most expansive "moral rights"
legal systems, even in the early days of debate about the rights
of authors after the French Revolution, it is accepted that
there are temporal limits on these rights. If this is true of
authors, it is even more true of performers, who are not granted
the full suite of author's rights in moral rights jurisdictions,
being exiled to a form of protection called "neighboring"
rights.
92
In all of these schemes, there are time limits on the length of
the rights (and frequently different ones for different
creators--authors, inventors, performers, and so on). Once one
has accepted that point, the question of how long they should be
is, surely, a matter for empirical and utilitarian analysis. One
cannot credibly say that natural rights or the deep
deontological structure of the universe gives me a right to
twenty-eight or fifty-six or seventy years of exclusivity. The
argument must turn instead to a question of consequences. Which
limit is better? Once one asks that question, the Gowers
Review's economic assessment is overwhelming, as the Select
Committee itself recognized. In the end, the government
agreed--noting that a European Union study had found precisely
the same thing. The sound recording right should not be
extended, still less extended retrospectively. The evidence-free
zone had been penetrated. But not for long. As this book went to
press, the European Commission announced its support for an even
longer Europe-wide extension of the sound recording right. The
contrary arguments and empirical evidence were ignored,
minimized, explained away. How can this pattern be broken?
93
In the next and final chapter, I try to answer that question. I
offer a partial explanation for the cognitive and organizational
blindnesses that have brought us to this point. I argue that we
have much to learn from the history, theory, and organizational
practices of the environmental movement. The environmental
movement taught us to see "the environment" for the first time,
to recognize its importance, and to change the way we thought
about ecology, property, and economics in consequence. What we
need is an environmentalism of mind, of culture, of information.
In the words of my colleague David Lange, we need to "recognize
the public domain." And to save it.
Chapter 10: An Environmentalism for Information
1
Over the last fifteen years, a group of scholars have finally
persuaded economists to believe something noneconomists find
obvious: "behavioral economics" shows that people do not act as
economic theory predicts. But hold your cheers. This is not a
vindication of folk wisdom over the pointy-heads. The deviations
from "rational behavior" are not the wonderful cornucopia of
human motivations you might imagine. There are patterns. For
example, we are systematically likely to overestimate chances of
loss and underestimate chances of gain, to rely on simplifying
heuristics to frame problems even when those heuristics are
contradicted by the facts.
2
Some of the patterns are endearing; the supposedly "irrational"
concerns for distributive equality that persist in all but the
economically trained and the extreme right, for example. But
most of them simply involve the mapping of cognitive bias. We
can take advantage of those biases, as those who sell us
ludicrously expensive and irrational warranties on consumer
goods do. Or we can correct for them, like a pilot who is
trained to rely on his instruments rather than his faulty
perceptions when flying in heavy cloud.
3
This book has introduced you to the wonders and terrors of
intellectual property law--the range wars of the Internet age.
There have been discussions of synthetic biology and musical
sampling, digital locks and the hackers who break them,
Jefferson and Macaulay, and the fight over video recorders. Now
it is time to sum up.
4
I would argue that the chapters in this book present evidence of
another kind of cognitive bias, one that the behavioral
economists have not yet identified. Call it the openness
aversion. Cultural agoraphobia. We are systematically likely to
undervalue the importance, viability, and productive power of
open systems, open networks, and nonproprietary production.
5
CULTURAL AGORAPHOBIA?
6
Test yourself on the following questions. In each case, it is
1991 and I have removed from you all knowledge of the years
since then. (For some, this might be a relief.)
7
The first question is a thought experiment I introduced in
Chapter 4. You have to design an international computer network.
One group of scientists describes a system that is fundamentally
open: open protocols and open systems so that anyone could
connect to the system and offer information or products to the
world. Another group--scholars, businesspeople,
bureaucrats--points out the problems. Anyone could connect to the
system! They could do anything! The system itself would not
limit them to a few approved actions or approved connections.
There would be porn, and piracy, and viruses, and spam.
Terrorists could put up videos glorifying themselves. Your
neighbor's site could compete with the New York Times or the
U.S. government in documenting the war in Iraq. Better to have a
well-managed system in which official approval is required to
put up a site, where only a few selected actions are permitted
by the network protocols, where most of us are merely recipients
of information, where spam, viruses, and piracy (and innovation
and participatory culture and anonymous speech) are impossible.
Which network design would you have picked? Remember, you have
no experience of blogs, or mashups, or Google; no experience of
the Web. Just you and your cognitive filters.
8
Imagine a form of software which anyone could copy and change,
created under a license which required subsequent programmers to
offer their software on the same terms. Imagine legions of
programmers worldwide contributing their creations back into a
"commons." Is this anarchic-sounding method of production
economically viable? Could it successfully compete with the
hierarchically organized corporations producing proprietary,
closed code, controlled by both law and technology? Be truthful.
9
Finally, set yourself the task of producing the greatest
reference work the world has ever seen. You are told that it
must cover everything from the best Thai food in Durham to the
annual rice production of Thailand, from the best places to see
blue whales to the history of the Blue Dog Coalition. Would you
create a massive organization of paid experts, each assigned a
topic, with hierarchical layers of editors above them, producing
a set of encyclopedic tomes that are rigorously controlled by
copyright and trademark? Or would you wait for hobbyists,
governments, scientists, and volunteer encyclopedists to
produce, and search engines to organize and rank, a cornucopia
of information? I know which way I would have bet in 1991. But I
also know that the last time I consulted an encyclopedia was in
1998. You?
10
It is not that openness is always right. It is not. Often we
need strong intellectual property rights, privacy controls, and
networks that demand authentication. Rather, it is that we need
a balance between open and closed, owned and free, and we are
systematically likely to get the balance wrong. (How did you do
on the test?) Partly this is because we still don't understand
the kind of property that lives on networks; most of our
experience is with tangible property. Sandwiches that one
hundred people cannot share. Fields that can be overgrazed if
outsiders cannot be excluded. For that kind of property, control
makes more sense. Like astronauts brought up in gravity, our
reflexes are poorly suited for free fall. Jefferson's words were
true even of grain elevators and hopper-boys. But in our world,
the proportion of intangible to tangible property is much, much
higher. The tendency to conflate intellectual and real property
is even more dangerous in a networked world. We need his words
more than he did.
11
Each of the questions I asked is related to the World Wide Web.
Not the Internet, the collective name for the whole phenomenon,
including the underlying methods of sending and receiving
packets. Some version of the underlying network has been around
for much longer, in one form or another. But it only attracted
popular attention, only revolutionized the world, when on top of
it was built the World Wide Web--the network of protocols and
pages and hyperlinks that is so much a part of our lives and
which arose only from Tim Berners-Lee's work at CERN in 1991.
12
My daughter will graduate from college in the year 2011. (At
least, we both hope so.) She is older than the Web. It will not
even have had its twentieth birthday on her graduation day. By
Christmas of 2012, it will be able to drink legally in the
United States. I wrote those sentences, but I find it hard to
believe them myself. A life without the Web is easy to remember
and yet hard to recapture fully. It seems like such a natural
part of our world, too fixed to have been such a recent arrival,
as if someone suggested that all the roads and buildings around
you had arrived in the last fifteen years.
13
Some of you may find these words inexplicable because you live
in a happy, Thoreau-like bliss, free of any contact with
computer networks. If so, I take my hat off to you. The world of
open sky and virtuous sweat, of books and sport and laughter, is
no less dear to me than to you. Having an avatar in a virtual
world holds the same interest as elective dental surgery. I care
about the Web not because I want to live my life there, but
because of what it has allowed us to achieve, what it represents
for the potential of open science and culture. That, I think, is
something that Thoreau (and even Emerson for that matter) might
have cared about deeply. Yet, as I suggested earlier in this
book, I seriously doubt that we would create the Web today--at
least if policy makers and market incumbents understood what the
technology might become early enough to stop it.
14
I am not postulating some sinister "Breakages, Limited" that
stifles technological innovation. I am merely pointing out the
imbalance between our intuitive perceptions of the virtues and
dangers of open and closed systems, an imbalance I share, quite
frankly.
15
In place of what we have today, I think we would try, indeed we
are trying, to reinvent a tamer, more controlled Web and to
change the nature of the underlying network on which it
operates. (This is a fear I share with those who have written
about it more eloquently than I, particularly Larry Lessig and
Yochai Benkler.) We would restrict openness of access, decrease
anonymity, and limit the number of actions that a network
participant could perform. The benefits would be undeniable. It
would cut down on spam, viruses, and illicit peer-to-peer file
sharing. At the same time, it would undercut the iconoclastic
technological, cultural, and political potential that the Web
offers, the ability of a new technology, a new service to build
on open networks and open protocols, without needing approval
from regulators or entrenched market players, or even the owners
of the Web pages to which you link.
16
Imagine, by contrast, an Internet and a World Wide Web that
looked like America Online, circa 1996, or Compuserve, or the
French state network Minitel. True, your exposure to penis-
enhancement techniques, misspelled stock tips, and the penniless
sons of Nigerian oil ministers would be reduced. That sounds
pretty attractive. But the idea that the AOL search engine would
be replaced by Yahoo and then Google, let alone Google Maps?
That new forms of instant messaging would displace Compuserve's
e-mail? That the Chinese dissident would have access to
anonymized Internet services, that you might make phone calls
worldwide for free from your computer, or that a blog like
BoingBoing would end up having more page views than many major
newspapers? Forget it. Goodbye to the radical idea that anyone
can link to any page on the network without permission. A
revised network could have the opposite rule and even impose it
by default.
17
A tamer network could keep much tighter control over content,
particularly copyrighted content. You might still get the video
of the gentlemen doing strange things with Mentos and soda
bottles, though not its viral method of distribution. But forget
about "George Bush Doesn't Care About Black People" and all your
favorite mashups. Its controlled network of links and its
limited access would never unleash the collective fact-gathering
genius the Web has shown. For a fee, you would have Microsoft
Encarta and the Encyclopedia Britannica online. What about the
"right-click universe" of knowledge about the world gathered by
strangers, shared on comparatively open sites worldwide, and
ordered by search engines? What about Wikipedia? I think not.
18
The counterfactual I offer is not merely a counterfactual. Yes,
we got the Web. It spread too fast to think of taming it into
the more mature, sedate "National Information Infrastructure"
that the Clinton administration imagined. But as Larry Lessig
pointed out years ago, the nature of a network can always be
changed. The war over the control and design of the network, and
the networked computer, is never-ending. As I write these words,
the battles are over "trusted computing" and "Net neutrality."
Trusted computing is a feature built into the operating system
which makes it impossible to run processes that have not been
approved by some outside body and digitally identified. It would
indeed help to safeguard your computer from viruses and other
threats and make it harder to copy material the content owners
did not want you to copy (perhaps even if you had a right to).
In the process it would help to lock in the power of those who
had a dominant position in operating systems and popular
programs. (Microsoft is a big supporter.) It would make open
source software, which allows users to modify programs,
inherently suspect. It would, in fact, as Jonathan Zittrain
points out, change the nature of the general-purpose computer,
which you can program to do anything, back toward the terminal
which tells you what functions are allowed.1 Think of a DVD
player.
19
The attack on Net neutrality, by contrast, is an attempt by the
companies who own the networks to be allowed to discriminate
between favored and disfavored content, giving the former
preferential access. (One wit analogized it to letting the phone
company say, "we will delay your call to Pizza Hut for sixty
seconds, but if you want to be put through to our featured pizza
provider immediately, hit nine now!") Taken together, these
proposals would put the control of the computer back in the
hands of the owners of the content and the operating system, and
control of the network users' choices in the hands of the person
who sells them their bandwidth. At the same time, our
intellectual property agenda is filled with proposals to create
new intellectual property rights or extend old ones. That is the
openness aversion in action.
20
Now, perhaps to you, the closed alternatives still sound better.
Perhaps you do not care as much about the kind of technological
dynamism, or anonymous speech, or cultural ferment that thrills
the digerati. Perhaps you care more about the risks posed by the
underlying freedom. That is a perfectly reasonable point of
view. After all, openness does present real dangers; the same
freedom given to the innovator, the artist, and the dissident is
given to the predator and the criminal. At each moment in
history when we have opened a communications network, or the
franchise, or literacy, reasonable people have worried about the
consequences that might ensue. Would expanded literacy lead to a
general coarsening of the literary imagination? (Sometimes,
perhaps. But it would and did lead to much more besides, to
literature and culture of which we could not have dreamed.)
Would an expanded franchise put the control of the state into
the hands of the uneducated? (Yes, unless we had free national
educational systems. "Now we must educate our masters" was the
slogan of the educational reformers after the enlargement of the
franchise in Britain in the nineteenth century. Openness
sometimes begets openness.) Would translating the Bible from
Latin into the vernacular open the door to unorthodox and
heretical interpretations, to a congregation straying because
they did not need to depend on a priestly intermediary with
privileged access to the text? (Oh, yes indeed.) Would TV and
radio play into the hands of demagogues? (Yes, and help expose
their misdeeds.)
21
Openness is not always right. Far from it. But our prior
experience seems to be that we are systematically better at
seeing its dangers than its benefits. This book has been an
attempt, in the sphere of intellectual property, to help us
counteract that bias. Like the pilot in the cloud looking at his
instruments, we might learn that we are upside down. But what do
we do about it?
22
LEARNING FROM ENVIRONMENTALISM
23
I have argued that our policies are distorted not merely by
industry capture or the power of incumbent firms, but by a
series of cultural and economic biases or presuppositions: the
equation of intellectual property to physical property; the
assumption that whenever value is created, an intellectual
property right should follow; the romantic idea of creativity
that needs no raw material from which to build; the habit of
considering the threats, but not the benefits, of new
technologies; the notion that more rights will automatically
bring more innovation; the failure to realize that the public
domain is a vital contributor to innovation and culture; and a
tendency to see the dangers of openness, but not its potential
benefits.2
24
One of the most stunning pieces of evidence to our aversion to
openness is that, for the last fifty years, whenever there has
been a change in the law, it has almost always been to expand
intellectual property rights. (Remember, this implies that every
significant change in technology, society, or economy required
more rights, never less, nor even the same amount.) We have done
all this almost entirely in the absence of empirical evidence,
and without empirical reconsideration to see if our policies
were working. As I pointed out in the last chapter, intellectual
property policy is an "evidence-free zone." It runs on faith
alone and its faith consists of the cluster of ideas I have
outlined in this book. Whether we call this cluster of ideas
maximalism, cultural agoraphobia, or the openness aversion, it
exercises a profound influence on our intellectual property and
communications policy.
25
These ideas are not free-floating. They exist within, are
influenced by, and in turn influence, a political economy. The
political economy matters and it will shape any viable response.
Even if the costs of getting the policies wrong are huge and
unnecessary--think of the costs of the copyright extensions that
lock up most of twentieth-century culture in order to protect
the tiny fraction of it that is still commercially
available--they are spread out over the entire population, while
the benefits accrue to a small group of commercial entities that
deeply and sincerely believe in the maximalist creed. This
pattern of diffuse but large losses and concentrated gains is,
as Mancur Olson taught us, a recipe for political malfunction.3
Yet the problem is even deeper than that--in four ways.
26
First, though intellectual property rules will profoundly shape
science, culture, and the market in the information age, they
just seem obscure, wonkish, hard to get excited about.
Certainly, people can get upset about individual
examples--overbroad patents on human genes, copyright lawsuits
against whistleblowers who leak e-mails showing corporate
misdeeds that threaten the integrity of electronic voting, rules
that paralyze documentary filmmakers, or require payment for
sampling three notes from a prior song, extensions of rights
that allow patents on auctions or business methods, make genres
such as jazz seem legally problematic, create new rights over
facts, or snarl up foundational technologies. But they see each
of these as an isolated malfunction, not part of a larger social
problem or set of attitudes.
27
Second, what holds true for issues, also holds true for
communities. What links the person writing open source software,
and trying to negotiate a sea of software patents in the
process, to the film archivist trying to stir up interest in all
the wonderful "orphan films"--still under copyright but with no
copyright owner we can find--before they molder away into nitrate
dust? When a university collaborates with Google to digitize
books in their collection for the purposes of search and
retrieval, even if only a tiny portion of the text will be
visible for any work still under copyright, does it sense any
common interest with the synthetic biologist trying to create
the BioBricks Foundation, to keep open the foundational elements
of a new scientific field? Both may be sued for their
efforts--one connection at least.
28
When a developing nation tries to make use of the explicit
"flexibilities" built into international trade agreements so as
to make available a life-saving drug to its population through a
process of compulsory licensing and compensation, it will find
itself pilloried as a lawbreaker--though it is not--or punished
through bilateral agreements. Will that process form any common
interest with the high-technology industries in the United
States who chafe at the way that current intellectual property
rules enshrine older technologies and business methods and give
them the protection of law? There are some links between those
two situations. Will the parties see those links, or will the
developing world's negotiators think that the current
intellectual property rules express some monolithic "Western"
set of interests? Will the high-tech companies think this is
just an issue of dumb lawyers failing to understand technology?
Each gap in understanding of common interest is a strike against
an effective response.
29
Third, an effective political response would actually be easier
if our current rules came merely from the relentless pursuit of
corporate self-interest. (Here I part company with those who
believe that self-interest is simply "there"--not shaped by
socially constructed ideas, attitudes, ideologies, or biases.)
In fact, the openness aversion sometimes obscures self-interest
as well as the public interest. Think of the relentless
insistence of the movie companies on making video recorders
illegal. Nor does the framework of maximalism help if our goal
is to have all the interested economic actors in the room when
policy is made. For example, by framing issues of communications
policy or Internet regulation as questions of intellectual
property, we automatically privilege one set of interested
parties--content owners--over others who also have a large
economic stake in the matter.
30
Fourth, and finally, the biggest problem is that even if one
could overcome the problems of political interest, or
ideological closed-mindedness, the answers to many of these
questions require balance, thought, and empirical evidence--all
qualities markedly missing in the debate. If the answer were
that intellectual property rights are bad, then forming good
policy would be easy. But that is as silly and one-sided an idea
as the maximalist one I have been criticizing here. Here are
three examples:
31
1. Drug patents do help produce drugs. Jettisoning them is a bad
idea--though experimenting with additional and alternative
methods of encouraging medical innovation is a very good one.
2. I believe copyrights over literary works should be shorter,
and that one should have to renew them after twenty-eight
years--something that about 85 percent of authors and publishers
will not do, if prior history is anything to go by. I think that
would give ample incentives to write and distribute books, and
give us a richer, more accessible culture and educational system
to boot, a Library of Congress where you truly can "click to get
the book" as my son asked me to do years ago now. But that does
not mean that I wish to abolish copyright. On the contrary, I
think it is an excellent system.
3. All the empirical evidence shows that protecting compilations
of facts, as the European Database Directive does, has been a
profound failure as a policy, imposing costs on consumers
without encouraging new database production. But if the evidence
said the opposite, I would support a new database right.
32
We need a political debate about intellectual property that
recognizes these trade-offs; that does not impose simplistic,
one-sided solutions; that looks to evidence. We need to
understand the delicate and subtle balance between property and
the opposite of property, the role of rights, but also of the
public domain and the commons. Building a theory, let alone a
movement, around such an issue is hard. Doing so when we lack
some of the basic theoretical tools and vocabularies is
daunting. We do not even have a robust conception of the public
domain. If they think of it as a legal issue at all, people
simply think of it as whatever is left over after an endless
series of rights have been carved out. Can one build a politics
to protect a residue?
33
So we have at least four problems: an issue that is perceived as
obscure, affecting scattered groups with little knowledge of
each other's interest, dominated by an ideology that is
genuinely believed by its adherents, in the place of which we
have to make careful, balanced, empirically grounded
suggestions. Assume for a moment the need for a politics of
intellectual property that seeks a solution to these four
problems. What might such a politics look like?
34
I have argued that in a number of respects, the politics of
intellectual property and the public domain is at the stage that
the American environmental movement was at in the 1950s. In
1950, there were people who cared strongly about issues we would
now identify as "environmental"--supporters of the park system
and birdwatchers, but also hunters and those who disdained
chemical pesticides in growing their foods. In the world of
intellectual property, we have start-up software engineers,
libraries, appropriationist artists, parodists, biographers, and
biotech researchers. In the 50s and 60s, we had flurries of
outrage over particular crises--burning rivers, oil spills,
dreadful smog. In the world of intellectual property, we have
the kind of stories I have tried to tell here. Lacking, however,
is a general framework, a perception of common interest in
apparently disparate situations.
35
Crudely speaking, the environmental movement was deeply
influenced by two basic analytical frameworks. The first was the
idea of ecology: the fragile, complex, and unpredictable
interconnections between living systems. The second was the idea
of welfare economics--the ways in which markets can fail to make
activities internalize their full costs.4 The combination of the
two ideas yielded a powerful and disturbing conclusion. Markets
would routinely fail to make activities internalize their own
costs, particularly their own environmental costs. This failure
would, routinely, disrupt or destroy fragile ecological systems,
with unpredictable, ugly, dangerous, and possibly irreparable
consequences. These two types of analysis pointed to a general
interest in environmental protection and thus helped to build a
large constituency which supported governmental efforts to that
end. The duck hunter's preservation of wetlands as a species
habitat turns out to have wider functions in the prevention of
erosion and the maintenance of water quality. The decision to
burn coal rather than natural gas for power generation may have
impacts on everything from forests to fisheries. The attempt to
reduce greenhouse gases and mitigate the damage from global
warming cuts across every aspect of the economy.
36
Of course, it would be silly to think that environmental policy
was fueled only by ideas rather than more immediate desires. As
William Ruckelshaus put it, "With air pollution there was, for
example, a desire of the people living in Denver to see the
mountains again. Similarly, the people living in Los Angeles had
a desire to see one another." Funnily enough, as with
intellectual property, changes in communications technology also
played a role. "In our living rooms in the middle sixties, black
and white television went out and color television came in. We
have only begun to understand some of the impacts of television
on our lives, but certainly for the environmental movement it
was a bonanza. A yellow outfall flowing into a blue river does
not have anywhere near the impact on black and white television
that it has on color television; neither does brown smog against
a blue sky."5 More importantly perhaps, the technologically
fueled deluge of information, whether from weather satellites or
computer models running on supercomputers, provided some of the
evidence that--eventually--started to build a consensus around the
seriousness of global warming.
37
Despite the importance of these other factors, the ideas I
mentioned--ecology and welfare economics--were extremely important
for the environmental movement. They helped to provide its
agenda, its rhetoric, and the perception of common interest
underneath its coalition politics. Even more interestingly, for
my purposes, those ideas--which began as inaccessible scientific
or economic concepts, far from popular discourse--were brought
into the mainstream of American politics. This did not happen
easily or automatically. Popularizing complicated ideas is hard
work. There were popular books, television discussions,
documentaries on Love Canal or the California kelp beds, op-ed
pieces in newspapers, and pontificating experts on TV.
Environmental groups both shocking and staid played their part,
through the dramatic theater of a Greenpeace protest or the
tweedy respectability of the Audubon Society. Where once the
idea of "the Environment" (as opposed to "my lake," say) was
seen as a mere abstraction, something that couldn't stand
against the concrete benefits brought by a particular piece of
development, it came to be an abstraction with both the force of
law and of popular interest behind it.
38
To me, this suggests a strategy for the future of the politics
of intellectual property, a way to save our eroding public
domain. In both areas, we seem to have the same recipe for
failure in the structure of the decision-making process.
Democratic decisions are made badly when they are primarily made
by and for the benefit of a few stakeholders, whether
industrialists or content providers. This effect is only
intensified when the transaction costs of identifying and
resisting the change are high. Think of the costs and benefits
of acid rain-producing power generation or--less serious, but
surely similar in form--the costs and benefits of retrospectively
increasing copyright term limits on works for which the
copyright had already expired, pulling them back out of the
public domain. There are obvious benefits to the heirs and
assigns of authors whose copyright has expired in having
Congress put the fence back up around this portion of the
intellectual commons. There are clearly some costs--for example,
to education and public debate--in not having multiple, competing
low-cost editions of these works. But these costs are
individually small and have few obvious stakeholders to
represent them.
39
Yet, as I have tried to argue here, beyond the failures in the
decision-making process, lie failures in the way we think about
the issues. The environmental movement gained much of its
persuasive power by pointing out that for structural reasons we
were likely to make bad environmental decisions: a legal system
based on a particular notion of what "private property" entailed
and an engineering or scientific system that treated the world
as a simple, linearly related set of causes and effects. In both
of these conceptual systems, the environment actually
disappeared; there was no place for it in the analysis. Small
surprise, then, that we did not preserve it very well. I have
argued that the same is true about the public domain. The
confusions against which the Jefferson Warning cautions, the
source-blindness of a model of property rights centered on an
"original author," and the political blindness to the importance
of the public domain as a whole (not "my lake," but "the
Environment"), all come together to make the public domain
disappear, first in concept and then, increasingly, as a
reality. To end this process we need a cultural
environmentalism, an environmentalism of the mind, and over the
last ten years we have actually begun to build one.
40
Cultural environmentalism is an idea, an intellectual and
practical movement, that is intended to be a solution to a set
of political and theoretical problems--an imbalance in the way we
make intellectual property policy, a legal regime that has
adapted poorly to the transformation that technology has
produced in the scope of law, and, perhaps most importantly, a
set of mental models, economic nostrums, and property theories
that each have a public domain-shaped hole at their center.
41
The comparison I drew between the history of environmentalism
and the state of intellectual property policy had a number of
facets. The environmental movement had "invented" the concept of
the environment and used it to tie together a set of phenomena
that would otherwise seem very separate. In doing so, it changed
perceptions of self-interest and helped to form coalitions where
none had existed before--just as earth science built upon
research into the fragile interconnections of ecology and on the
Pigouvian analysis of economic externalities. I argue that we
need to make visible the invisible contributions of the public
domain, the "ecosystem services" performed by the
underappreciated but nevertheless vital reservoir of freedom in
culture and science.6 And, just as with environmentalism, we
need not only a semantic reorganization, or a set of conceptual
and analytic tools, but a movement of people devoted to bringing
a goal to the attention of their fellow citizens.
42
I have tried hard to show that there is something larger going
on under the realpolitik of land grabs by Disney and campaign
contributions by the Recording Industry Association of America.
But it would be an equal and opposite mistake to think that this
is just about a dysfunctional discourse of intellectual
property. In this part of the analysis, too, the environmental
movement offers some useful practical reminders. The ideas of
ecology and environmental welfare economics were important, but
one cannot merely write A Sand County Almanac and hope the world
will change. Environmentalists piggybacked on existing sources
of conservationist sentiment--love of nature, the national parks
movement, hikers, campers, birdwatchers. They built coalitions
between those who might be affected by environmental changes.
They even stretched their political base by discovering, albeit
too slowly, the realities of environmental racism, on the one
hand, and the benefits of market solutions to some environmental
problems on the other. Some of these aspects, at least, could be
replicated in the politics of intellectual property.
43
Ten years ago, when I first offered the environmental analogy, I
claimed that intellectual property policy was seen as a contract
struck between industry groups--something technical, esoteric,
and largely irrelevant to individual citizens, except in that
they were purchasers of the products that flowed out of the
system. Whether or not that view has ever been tenable, it is
not so in a digital age. Instead, I offered the basic argument
laid out here--that we needed a "politics of intellectual
property" modeled on the environmental movement to create a
genuine and informed political debate on intellectual property
policy.7
44
So far, I have concentrated on the theoretical and academic
tools such a debate would need--focusing particularly on property
theory and on economic analysis and its limits. But if there is
to be a genuinely democratic politics of intellectual property,
we would need an institutional diversity in the policymaking
debate that was comparable to that of the environmental
movement.
45
Environmentalism presents us with a remarkable diversity of
organizational forms and missions. We have Greenpeace, the
Environmental Legal Defense Fund, groups of concerned
scientists, and the Audubon Society, each with its own methods,
groups of supporters, and sets of issues. Yet we also have local
and pragmatic coalitions to save a particular bit of green
space, using the private tools of covenants and contracts.8 I
think we can see the beginnings of the replication of that
institutional diversity in the world of intangible property.
46
Ten years ago, civil society had little to offer in terms of
groups that represented anything other than an industry position
on intellectual property, still less ones that took seriously
the preservation of the public domain or the idea that
intellectual property policy was a matter of balance, rather
than simple maximization of rights. There were the librarians
and a few academics. That was about it. This position has
changed radically.
47
There are academic centers that concentrate on the theoretical
issues discussed in this book--one of them at my university.
Thanks in large part to the leadership of Pamela Samuelson,
there are law student clinics that do impact litigation on
issues such as fair use and that represent underserved clients
such as documentarians. But beyond academic work, there are
organizations that have dedicated themselves to advocacy and to
litigation around the themes of preservation of the public
domain, defense of limitations and exceptions in copyright, and
the protection of free speech from the effects of intellectual
property regulation of both content and the communications
infrastructure. The Electronic Frontier Foundation did exist ten
years ago, but its coverage of intellectual property issues was
only episodic. Its portfolio of litigation and public education
on the subject is now nothing short of remarkable. Public
Knowledge's valuable lobbying and education is another obvious
example. International organizations with similar aims include
the Open Rights Group in the United Kingdom.9
48
Organizing has also taken place around particular cases--such as
Eldred v. Ashcroft, the challenge to the Sonny Bono Copyright
Term Extension Act.10 Activity is not confined to the world of
copyright. The Public Patent Foundation combats "patent creep"
by exposing and challenging bad patents.11
49
It would be remiss not to mention the international Access to
Knowledge, or A2K, movement, inspired by the work of Jamie
Love.12 While its focus is on the kinds of issues represented by
the access-to-medicines movement, it has made the idea of
balance in intellectual property and the protection of the
public domain one of its central components. Mr. Love himself is
also the central figure behind the idea of a Research and
Development Treaty which would amend international trade
agreements to make intellectual property merely one of a whole
range of economic methods for stimulating innovation.13
His work has touched almost every single one of the movements
discussed here.
50
The Access to Knowledge movement has many institutional
variants. The Development Agenda at the World Intellectual
Property Organization (WIPO), put forward by India and Brazil,
includes similar themes, as do the Geneva Declaration and the
Adelphi Charter produced by the United Kingdom's Royal Society
for the Encouragement of Arts, Manufactures and Commerce.14
History is full of wordy charters and declarations, of course.
By themselves they mean little. Yet the level of public and
media attention paid to them indicates that intellectual
property policy is now of interest beyond a narrow group of
affected industries. To underscore this point, several major
foundations have introduced intellectual property initiatives,
something that would have been inconceivable ten years ago.15
51
Finally, to complete the analogy to the land trust, we have the
organizations I mentioned earlier, such as Creative Commons and
the Free Software Foundation.16 The latter group pioneered
within software the attempt to create a licensed "commons" in
which freedoms are guaranteed. The licensed commons replaces the
law's default rules with choices made by individuals, the
effects of which are magnified by collective action. The end
result is a zone of public freedom enabled by private choice.
52
If one looks at these institutions and actors and at the range
of issues on which they focus--from software to drug patents,
from reverse engineering to access to archival records--the
obvious question is, how did they overcome the collective action
problem? What ties together a critique of digital locks and the
access-to-medicines movement? Again, I think the answer points
to the usefulness of the environmental analogy. As I pointed
out, the invention of the "environment" trope tied together
groups whose interests, considered at a lower level of
abstraction, seemed entirely different--hunters and birdwatchers,
antipollution protesters and conservation biologists. The idea
of the "environment" literally created the self-interest or set
of preferences that ties the movement together. The same is true
here. Apparently disparate interests are linked by ideas of the
protection of the public domain and of the importance of a
balance between protection and freedom in cultural and
scientific ecology.17
53
But even a broad range of initiatives and institutions would
not, in and of themselves, produce results. One must convince
people that one's arguments are good, one's institutional
innovations necessary, one's horror stories disturbing.
Environmentalism has managed to win the battle for clarity--to
make its points clearly enough that they ceased to be dismissed
as "arcane" or technical, to overcome neglect by the media, to
articulate a set of concerns that are those of any educated
citizen. The other striking phenomenon of the last ten years is
the migration of intellectual property issues off the law
reviews or business pages and onto the front pages and the
editorial pages. Blogs have been particularly influential.
Widely read sites such as Slashdot and Boing-Boing have multiple
postings on intellectual property issues each day; some are
rants, but others are at a level of sophistication that once
would have been confined to academic discussion.18 Scientists
passionately debate the importance of open access to scholarly
journals. Geographers and climatologists fume over access to
geospatial data. The movement has been pronounced enough to
generate its own reaction. The popular comics site "xkcd" has
strips critical of the Digital Millennium Copyright Act,19
but also a nerdily idyllic picture of a stick figure reclining
under a tree and saying, "Sometimes I just can't get outraged
over copyright law."20 That cartoon now resides on my computer
desktop. (It is under a Creative Commons license, ironically
enough.)
54
Who can blame the stick figure? Certainly not I. Is it not silly
to equate the protection of the environment with the protection
of the public domain? After all, one is the struggle to save a
planetary ecology and the other is just some silly argument
about legal rules and culture and science. I would be the first
to yield primacy to the environmental challenges we are facing.
Mass extinction events are to be avoided, particularly if they
involve you personally. Yet my willingness to minimize the
importance of the rules that determine who owns science and
culture goes only so far.
55
A better intellectual property system will not save the planet.
On the other hand, one of the most promising sets of tools for
building biofuels comes from synthetic biology. Ask some of the
leading scientists in that field why they devoted their precious
time to trying to work out a system that would offer the
valuable incentives that patents provide while leaving a commons
of "biobricks" open to all for future development. I worry about
these rules naturally; they were forced to do so. A better
intellectual property system certainly will not end world
hunger. Still it is interesting to read about the lengthy
struggles to clear the multiple, overlapping patents on
GoldenRiceTM--a rice grain genetically engineered to cure vitamin
deficiencies that nearly perished in a thicket of blurrily
overlapping rights.21
56
A better intellectual property system will not cure AIDS or
rheumatoid arthritis or Huntington's disease or malaria.
Certainly not by itself. Patents have already played a positive
role in contributing to treatments for the first two, though
they are unlikely to help much on the latter two; the affected
populations are too few or too poor. But overly broad, or vague,
or confusing patents could (and I believe have) hurt all of
those efforts--even those being pursued out of altruism. Those
problems could be mitigated. Reforms that made possible legal
and facilitated distribution of patented medicines in Africa
might save millions of lives. They would cost drug companies
little. Africa makes up 1.6 percent of their global market.
Interesting alternative methods have even been suggested for
encouraging investment in treatments for neglected diseases and
diseases of the world's poor. At the moment, we spend 90 percent
of our research dollars on diseases that affect 10 percent of
the global population. Perhaps this is the best we can do, but
would it not be nice to have a vigorous public debate on the
subject? Some possible innovations are much easier. A simple
rule that required the eventual free publication online of all
government-funded health research, under open licenses, rather
than its sequestration behind the paywalls of commercial
journals, could help fuel remarkable innovations in scientific
synthesis and computer-aided research while giving citizens
access to the research for which they have already paid.
57
Good intellectual property policy will not save our culture. But
bad policy may lock up our cultural heritage unnecessarily,
leave it to molder in libraries, forbid citizens to digitize it,
even though the vast majority of it will never be available
publicly and no copyright owner can be found. Would you not
prefer the world in which your children could look at the
Library of Congress online catalogue and click to get the book
or film or song that otherwise languished as an "orphan work"?
Good intellectual policy will not necessarily give us great new
music. But the policy we have today would make some of the music
we most cherish illegal, or at least legally questionable. Does
that inspire confidence for the future? As for the World Wide
Web, I offer again my thought experiment from the first part of
this chapter. Would we be more likely to invent it or forbid it
today? We are certainly working busily to change the openness of
the general-purpose computer, the neutrality of the network, and
the degree of control that content companies can exert over
hardware.
58
I do not claim that the issues I have written about here are the
most important problem the world faces. That would be
ridiculous. But I do claim that they are facets of a very
important problem and one to which we are paying far too little
attention.
59
I would also be the first to admit that these issues are
complicated. Even if we heeded the precepts I have outlined in
this book, even if we actually started to look at intellectual
property as an empirical question, even if we turned to data
rather than faith for our assessments, reasonable people would
disagree about much. Some of the most ludicrous recent
excesses--huge retrospective copyright term extensions, database
rights, proposed webcasting treaties, business method patents--do
not pass the laugh test, in my view and that of most scholars.
Stopping and then reversing that tide would be valuable, even
transformative, but other issues are a closer call.
60
It is also true that we do not have all the tools we need. A lot
remains to be done, both academically and practically. We need
better evidence. We need property theories that give us as rich
a conception of property's outside--of the public domain and the
commons--as we have of property itself. We need to rethink some
of our policies of international harmonization and reconsider
what types of policy actually benefit the developing world. We
should explore ways of compensating artists that are very
different from the ones we use now, and study the use of
distributed creativity and open source in new areas of science
and culture.
61
Difficulties aside, I have tried here to show that we need a
cultural environmental movement, a politics that enables us
first to see and then to preserve the public domain, to
understand its contributions to our art, our technology, and our
culture. Where is that movement now?
62
There is cause for both concern and optimism. Concern, because
it is still hard for courts, legislators, policy makers, and
citizens to see beyond the word "property" to the reality
underneath. I started this book with the question from my son
about the online catalogue of the Library of Congress: "Where do
you click to get the book?" In 2003 the Supreme Court heard
Eldred v. Ashcroft, the challenge to retrospective copyright
term extension. Over two strong dissents, the Court upheld the
constitutionality of the act against both First Amendment and
Copyright Clause challenges. The dead had their copyrights
extended yet again. The widest legal restriction of speech in
the history of the Republic--putting off-limits most twentieth-
century books, poems, films, and songs for another twenty years
without a corresponding speech benefit or incentive--can proceed
without significant First Amendment review. Does such a decision
mean the task this book undertakes--to take seriously the
contributions of the public domain to innovation, culture, and
speech--is ultimately doomed, whatever its intellectual merits,
to face a hostile or uncomprehending audience? Admittedly,
Eldred focused specifically on two particular constitutional
claims. Still, the attitude of the majority toward the
importance of the public domain--whether in the textual
limitations on Congress's power or the application of the First
Amendment--can hardly be cause for optimism. And yet . . . The
media reaction was remarkable.
63
The New York Times was sufficiently unfamiliar with the term
"public domain" that it was not entirely sure whether or not to
use the definite article in front of it. But unfamiliarity did
not imply complacency. An editorial declared that this decision
"makes it likely that we are seeing the beginning of the end of
public domain and the birth of copyright perpetuity. Public
domain has been a grand experiment, one that should not be
allowed to die. The ability to draw freely on the entire
creative output of humanity is one of the reasons we live in a
time of such fruitful creative ferment."22 The Washington Post,
though more inclined to agree that retrospective extension might
be constitutional, declared the copyright system to be "broken"
in that it "effectively and perpetually protects nearly all
material that anyone would want to cite or use. That's not what
the framers envisioned, and it's not in the public interest."23
64
I could not agree more. But as I have tried to show here, the
process is not limited to copyright, or culture, or texts, or
the United States. Think of the stories about business method
patents, or synthetic biology, or the regulation of musical
borrowing on the atomic level. Think of the discussion of the
openness aversion that began this chapter. In the middle of the
most successful and exciting experiment in nonproprietary,
distributed creativity in the history of the species, our policy
makers can see only the threat from "piracy." They act
accordingly. Our second enclosure movement is well under way.
The poem with which I began Chapter 3 told us: "And geese will
still a common lack / Till they go and steal it back." I cannot
match the terseness or the rhyme, but if we assume that the
enclosure of the commons of the mind will bring us prosperity,
great science, and vibrant culture, well, we will look like very
silly geese indeed.
NOTES
Notes: Chapter 1
1. As the suggested further reading indicates, this light-
hearted account of the economic basis of intellectual property
conceals considerable complexity. On the other hand, the
core argument is presented here--and a compelling argument it is.
2. See Jack Hirshleifer, "The Private and Social Value of
Information and the Reward to Inventive Activity," American
Economic Review 61 (1971): 561-574.
3. Unfortunately, the reality turns out to be less rosy. James
Bessen, "Patents and the Diffusion of Technical Information,"
Economics Letters 86 (2005): 122: "[S]urvey evidence suggests
that firms do not place much value on the disclosed information.
Moreover, those firms that do read patents do not use them
primarily as a source of information on technology. Instead,
they use them for other purposes, such as keeping track of
competitors or checking for infringement. There are, in fact,
sound theoretical reasons why the disclosed information may not
be very valuable. [Fritz] Machlup and [Edith] Penrose report
that the argument about diffusion is an old one, popular since
the mid-19th century. They also point out that, at least through
the 1950s, economists have been skeptical about this argument.
The problem, also recognized in the mid-19th century, is that
'only unconcealable inventions are patented,' so patents reveal
little that could not be otherwise learned. On the other hand,
'concealable inventions remain concealed.' " [Citations
omitted.]
4. Felix S. Cohen, "Transcendental Nonsense and the Functional
Approach," Columbia Law Review 35 (1935): 817.
5. For contrasting views of the sequence of events, see John
Feather, "Publishers and Politicians: The Remaking of the Law of
Copyright in Britain 1775-1842," pt. 2, "The Rights of Authors,"
Publishing History 25 (1989): 45-72; Mark Rose, Authors and
Owners: The Invention of Copyright (Cambridge, Mass.: Harvard
University Press, 1993).
6. Tim O'Reilly points out that there are 32 million titles in
the Online Computer Library Center's "WorldCat" catalogue--this
is a reasonable proxy for the number of books in U.S. libraries.
Nielsen's Bookscan shows that 1.2 million books sold at least
one copy in 2005. This yields a ratio of books commercially
available to books ever published of about 4 percent. But of
those 1.2 million books, many are in the public domain--think of
Shakespeare, Dickens, Austen, Melville, Kipling. Thus the
percentage of books that are under copyright and commercially
available may actually be considerably lower than 4 percent. See
http://radar.oreilly.com/archives/2005/11/oops_only_4_of_titles_
are_bein.html. For a lucid account of the statistics in the
context of the Google Book Search Project, see
http://lessig.org/blog/2006/01/google_book_search_the_argumen.ht
ml.
7. See Barbara Ringer, "Study Number 31: Renewal of Copyright,"
reprinted in U.S. Senate Committee on the Judiciary,
Subcommittee on Patents, Trademarks, and Copyrights, Copyright
Law Revision, 86th Cong., 1st Sess., Committee Print (1960),
187. See also HR Rep. 94-1476 (1976), 136; William M. Landes and
Richard A. Posner, The Economic Structure of Intellectual
Property Law (Cambridge, Mass.: Belknap Press, 2003), 210-212.
8. Details of the orphan works problem can be found in the
proposals presented to the copyright office by the Center for
the Study of the Public Domain; Orphan Works: Analysis and
Proposal: Submission to the Copyright Office--March 2005,
available at http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf,
and Access to Orphan Films: Submission
to the Copyright Office--March 2005, available at
http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf. Two recent
bills, in the Senate and House, respectively, attempt to address
the orphan works problems. The Shawn Bentley Orphan Works Act of
2008, S 2913, 110th Cong. (2008), would add a new section to the
Copyright Act limiting remedies for infringement of orphan works
and requiring the establishment of a database of pictorial,
graphic, and sculptural works. The House bill, The Orphan Works
Act of 2008, HR 5889, 110th Cong. (2008), is similar but not
identical. While these bills are a good start, the eventual
remedy will need to be more sweeping.
9. Bruce Sterling, Heavy Weather (New York: Bantam, 1994): 73
Notes: Chapter 2
1. Letter from Thomas Jefferson to Isaac McPherson (August 13,
1813), in The Writings of Thomas Jefferson, ed. Albert Ellery
Bergh (Washington, D.C.: The Thomas Jefferson Memorial
Association of the United States, 1907), vol. XIII, 326-338
(hereinafter Letter to McPherson), available at
http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1
.html (follow "May 1, 1812" hyperlink, then navigate to image
1057).
2. For example, attempting to procure a former stable master a
position (letter from Thomas Jefferson to Samuel H. Smith
[August 15, 1813], available at http://memory.loc
.gov/ammem/collections/jefferson_papers/mtjser1.html [follow
"May 1, 1812" hyperlink, then navigate to image 1070]), comments
on "Rudiments of English Grammar" (letter from Thomas Jefferson
to John Waldo [August 16, 1813], in Writings of Thomas
Jefferson, vol. XIII, 338-347), orthography of the plurals of
nouns ending in "y" (letter from Thomas Jefferson to John Wilson
[August 17, 1813], Writings of Thomas Jefferson, vol. XIII,
347-348), accepting the necessary delay in the publication of a
study on the anatomy of mammoth bones (letter from Thomas
Jefferson to Caspar Wistar [August 17, 1813], available at
http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1
.html [follow "May 1, 1812" hyperlink, then navigate to image
1095]), and discussing the Lewis biography (excerpt of a letter
from Thomas Jefferson to Paul Allen [August 18, 1813], Letters
of the Lewis and Clark Expedition with Related Documents
1783-1854, ed. Donald Jackson (Urbana: University of Illinois
Press, 1962), 586).
It is easy, in fact, reading this prodigious outpouring of
knowledge and enthusiasm, to forget the other side of Jefferson
and the social system that gave him the leisure to write these
letters. Just a few weeks before he wrote to McPherson, he wrote
a letter to Jeremiah Goodman about a slave called Hercules who
had been imprisoned as a runaway. "The folly he has committed
certainly justifies further punishment, and he goes in
expectation of receiving it. . . ." Letter from Thomas Jefferson
to Jeremiah A. Goodman (July 26, 1813), in Thomas Jefferson's
Farm Book, ed. Edwin Morris Betts (Charlottesville, Va.:
American Philosophical Society, 1999), 36. While leaving the
matter up to Goodman, Jefferson argues for leniency and for
refraining from further punishment. In that sense, it is a
humane letter. But this is one of the authors of the Declaration
of Independence, full of glorious principles--unalienable rights;
life, liberty, and the pursuit of happiness--enunciated in the
context of indignation at relatively mild colonial policies of
taxation and legislation. How could a man who thought that
taxing tea was tyranny, and that all men had an unalienable
right to liberty, believe that it was "folly" justifying
"further punishment" for a slave to run away? Reading the
letter--a curiously intimate, almost voyeuristic act--one finds
oneself saying "What was he thinking?"
3. Letter to McPherson, 333.
4. See Letter from Thomas Jefferson to Abraham Baldwin (April
14, 1802), in Writings of Thomas Jefferson, vol. XIX, 128-129.
5. See Paul Finkelman, Slavery and the Founders: Race and
Liberty in the Age of Jefferson, 2nd ed. (Armonk, N.Y.: M. E.
Sharpe, 2001), ix; Annette Gordon-Reed, Thomas Jefferson and
Sally Hemings: An American Controversy (Charlottesville:
University Press of Virginia, 1997) 1, 40-43, 60-61, 222.
6. Letter to McPherson, 336, quoted in John Perry Barlow,
"Economy of Ideas," Wired (March 1994): 84. For a careful
scholarly explanation of the antimonopolist origins of
eighteenth-century ideas such as Jefferson's, see Tyler T. Ochoa
and Mark Rose, "The Anti-Monopoly Origins of the Patent and
Copyright Clause," Journal of the Copyright Society of the
U.S.A. 49 (2002): 675-706. One scholar has offered a thoughtful
critique that suggests Jefferson's views were not, in fact,
representative either of the times or of the attitudes of the
other framers toward intellectual property. See Adam Mossoff,
"Who Cares What Thomas Jefferson Thought about Patents?
Reevaluating the Patent 'Privilege' in Historical Context,"
Cornell Law Review 92 (2007): 953-1012.
7. Letter to McPherson, 328.
8. Letter from Thomas Jefferson to Dr. Thomas Cooper (February
10, 1814), in Thomas Jefferson, Writings, ed. Merrill D.
Peterson (New York: Library of America, 1984), 1321.
9. Letter to McPherson, 333.
10. Ibid., 333-334.
11. Ibid.
12. Ibid., 335.
13. See ibid., 333-335.
14. Readers interested in learning more about this fascinating
man could begin with George Otto Trevelyan, The Life and Letters
of Lord Macaulay, London ed. (Longmans, 1876).
15. Thomas Babington Macaulay, speech delivered in the House of
Commons (February 5, 1841), in The Life and Works of Lord
Macaulay: Complete in Ten Volumes, Edinburgh ed. (Longmans,
1897), vol. VIII, 198 (hereinafter Macaulay Speech).
16. Ibid., 199.
17. Ibid., 198-199.
18. Graham v. John Deere, 383 U.S. 1, 7-11 (1966).
19. Adam Mossoff, "Who Cares What Thomas Jefferson Thought about
Patents? Reevaluating the Patent 'Privilege' in Historical
Context," Cornell Law Review 92 (2007): 953-1012. In a
thoughtful, carefully reasoned, and provocative article,
Professor Mossoff argues that Jefferson's views have been
misused by the courts and legal historians, and that if we
understand the use of the word "privilege" in historical
context, we see that the "patent privilege" was influenced by a
philosophy of natural rights as well as the antimonopolist
utilitarianism described here. I both agree and disagree.
Professor Mossoff 's central point--that the word "privilege" was
not understood by eighteenth-century audiences as the antonym of
"right"--is surely correct. To lay great stress on the linguistic
point that the patent right is "merely" a "privilege" is to rest
one's argument on a weak reed. But this is not the only
argument. One could also believe that intellectual property
rights have vital conceptual and practical differences with
property rights over tangible objects or land, that the framers
of the Constitution who were most involved in the intellectual
property clause were deeply opposed to the confusion involved in
conflating the two, and that they looked upon this confusion
particularly harshly because of an intense concern about state
monopolies. One can still disagree with this assessment, of
course; one can interpret Madison's words this way or that, or
interpret subsequent patent decisions as deep statements of
principle or commonplace rhetorical flourishes. Still it seems
to me a much stronger argument than the one based on the
privilege-right distinction. I am not sure Professor Mossoff
would disagree.
Professor Mossoff is also correct to point out that a "legal
privilege" did sometimes mean to an eighteenth-century reader
something that the state was duty-bound to grant. There was, in
fact, a wide range of sources from which an eighteenth-century
lawyer could derive a state obligation to grant a privilege.
Eighteenth-century legal talk was a normative bouillabaisse--a
rich stew of natural right, common law, utility, and
progress--often thrown together without regard to their
differences. Some lawyers and judges thought the common law
embodied natural rights, others that it represented the dictates
of "progress" and "utility," and others, more confusingly still,
seemed to adopt all of those views at once.
Nevertheless, I would agree that some eighteenth-century writers
saw claims of common-law right beneath the assertion of some
"privileges" and that a smaller number of those assumed common-
law right and natural right to be equivalent, and thus saw a
strong state obligation to grant a particular privilege based on
natural right, wherever that privilege had been recognized by
English or U.S. common law. But here is where I part company
with Professor Mossoff.
First, I do not believe that the most important architects of
the intellectual property clause shared that view when it came
to patents and copyrights. Jefferson, of course, was not one of
those who believed the state was so bound. "Society may give an
exclusive right to the profits arising from [inventions], as an
encouragement to men to pursue ideas which may produce utility,
but this may or may not be done, according to the will and
convenience of the society, without claim or complaint from any
body" (Letter to McPherson, 334, emphasis added). More
importantly, Jefferson's thinking about patents was infused by a
deeply utilitarian, antimonopolist tinge. So, I would argue, was
Madison's.
The quotations from Madison which I give later show clearly, to
me at least, that Madison shared Jefferson's deeply utilitarian
attitude toward patent and copyright law. I think there is very
good reason to believe that this attitude was dominant among the
Scottish Enlightenment thinkers whose writings were so
influential to the framers. I do not think it is an exaggeration
to say that the American Revolution was violently against the
world of monopoly and corruption that was the supposed target of
the English Statute of Monopolies (itself hardly a natural
rights document). Yes, those thinkers might fall back into
talking about how hard an inventor had worked or construing a
patent expansively. Yes, they might think that within the
boundaries of settled law, it would be unjust to deny one
inventor a patent when the general scheme of patent law had
already been laid down. But that did not and does not negate the
antimonopolist and, for that matter, utilitarian roots of the
Constitution's intellectual property clause.
Second, while I agree that there were strands of natural right
thinking and a labor theory of value in the U.S. intellectual
property system, and that they continue to this day-- indeed,
these were the very views that the Feist decision discussed in
Chapter 9 repudiated, as late as 1991--I think it is easy to make
too much of that fact. Is this signal or noise? There are
conceptual reasons to think it is the latter. Later in this
chapter I discuss the evolution of the droits d'auteur tradition
in France. Here, at the supposed heart of the natural rights
tradition, we find thinkers driven inexorably to consider the
question of limits. How far does the supposed natural right
extend--in time, in space, in subject matter? It is at that
moment that the utilitarian focus and the fear of monopoly
represented by Jefferson and Madison--and, for that matter, Locke
and Condorcet--become so important.
Professor Mossoff is correct to criticize the focus on the word
"privilege," and also correct that the ideas of natural right
and the labor theory of value always color attitudes toward
intellectual property claims. But it would be an equal and
opposite mistake to ignore two points. First, intellectual
property rights are profoundly different from physical property
rights over land in ways that should definitively shape policy
choices. Second, partly because of those differences, and
because of the influence of free-trade Scottish Enlightenment
thought on the American Revolution in particular, there was a
powerful antimonopolist and free-trade sentiment behind the
copyright and patent clause. Simply read the clause. Congress is
given the power "to promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries."
Does this really read like the work of a group of believers in
natural right? On the contrary, it reads like a limited grant of
power to achieve a particular utilitarian goal. That sentiment--
nicely encapsulated in but by no means limited to the words of
Jefferson--is still a good starting place for an understanding of
intellectual property.
20. See, e.g., Ochoa and Rose, "Anti-Monopoly Origins," and
Edward C. Walterscheid, The Nature of the Intellectual Property
Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S.
Hein, 2002). Ochoa, Rose, and Walterscheid stress the
antimonopolist concerns that animated some of those who were
most active in the debates about intellectual property. They
also point out the influence of the English Statute of
Monopolies of 1623, which attacked monopolies in general, while
making an exception for periods of legal exclusivity for a
limited time granted over "sole Working or Making of any Manner
of new Manufacture within this Realm, to the first true Inventor
or Inventors of such Manufactures which others at the time of
the Making of such Letters Patents Grants did not use, so they
be not contrary to the Law, nor mischievous to the State, by
Raising of the Prices of Commodities at home, or Hurt by Trade,
or generally inconvenient."
21. For example, in a letter to Madison commenting on the draft
of the Constitution: "I like it, as far as it goes; but I should
have been for going further. For instance, the following
alterations and additions would have pleased me: . . . Article
9. Monopolies may be allowed to persons for their own
productions in literature, and their own inventions in the arts,
for a term not exceeding . . . years, but for no longer term,
and no other purpose." Letter from Thomas Jefferson to James
Madison (August 28, 1789), in Writings of Thomas Jefferson, vol.
7, 450-451.
22. "Monopolies tho' in certain cases useful ought to be granted
with caution, and guarded with strictness against abuse. The
Constitution of the U.S. has limited them to two cases--the
authors of Books, and of useful inventions, in both which they
are considered as a compensation for a benefit actually gained
to the community as a purchase of property which the owner might
otherwise withhold from public use. There can be no just
objection to a temporary monopoly in these cases: but it ought
to be temporary because under that limitation a sufficient
recompence and encouragement may be given. The limitation is
particularly proper in the case of inventions, because they grow
so much out of preceding ones that there is the less merit in
the authors; and because, for the same reason, the discovery
might be expected in a short time from other hands. . . .
Monopolies have been granted in other Countries, and by some of
the States in this, on another principle, that of supporting
some useful undertaking, until experience and success should
render the monopoly unnecessary, and lead to a salutary
competition . . . But grants of this sort can be justified in
very peculiar cases only, if at all; the danger being very great
that the good resulting from the operation of the monopoly, will
be overbalanced by the evil effect of the precedent; and it
being not impossible that the monopoly itself in its original
operation, may produce more evil than good. In all cases of
monopoly, not excepting those in favor of authors and inventors,
it would be well to reserve to the State, a right to extinguish
the monopoly by paying a specified and reasonable sum. . . .
Perpetual monopolies of every sort are forbidden not only by the
Genius of free Governments, but by the imperfection of human
foresight." James Madison, "Monopolies, Perpetuities,
Corporations, Ecclesiastical Endowments" (1819), in "Aspects of
Monopoly One Hundred Years Ago," Harper's Magazine, ed. Galliard
Hunt, 128 (1914), 489-490; also in "Madison's 'Detatched
Memoranda,' " ed. Elizabeth Fleet, William & Mary Quarterly, 3rd
series, 3 no. 4 (1946): 551-552, available
at http://www.constitution.org/jm/18191213_monopolies.htm.
23. Adam Smith, The Wealth of Nations, pt. 3, Of the Expenses of
Public Works and Public Institutions, 2nd ed. (Oxford: Oxford
University Press, 1880), 2:339: "When a company of merchants
undertake, at their own risk and expense, to establish a new
trade with some remote and barbarous nation, it may not be
unreasonable to incorporate them into a joint-stock company, and
to grant them, in case of their success, a monopoly of the trade
for a certain number of years. It is the easiest and most
natural way in which the state can recompense them for hazarding
a dangerous and expensive experiment, of which the public is
afterwards to reap the benefit. A temporary monopoly of this
kind may be vindicated, upon the same principles upon which a
like monopoly of a new machine is granted to its inventor, and
that of a new book to its author. But upon the expiration of the
term, the monopoly ought certainly to determine; the forts and
garrisons, if it was found necessary to establish any, to be
taken into the hands of government, their value to be paid to
the company, and the trade to be laid open to all the subjects
of the state. By a perpetual monopoly, all the other subjects of
the state are taxed very absurdly in two different ways: first,
by the high price of goods, which, in the case of a free trade,
they could
buy much cheaper; and, secondly, by their total exclusion from a
branch of business which it might be both convenient and
profitable for many of them to carry on."
24. Macaulay Speech, 200-201.
25. Ibid., 201.
26. 17 U.S.C. § 304 (1998).
27. Eldred v. Ashcroft, 537 U.S. 186 (2003).
28. See Brief for Hal Roach Studios and Michael Agee as Amici
Curiae Supporting Petitioners, Eldred v. Ashcroft.
29. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-
298, 112 Stat. 2827 (1998).
30. Brief of George A. Akerlof, Kenneth J. Arrow, Timothy F.
Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen,
Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W.
Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll,
Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard
J. Zeckhauser as Amici Curiae In Support of Petitioners, Eldred
v. Ashcroft, available at http://cyber
.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/economists.
pdf.
31. U.S. Constitution, art. I, § 8, cl. 8.
32. "These are strong cases. I have shown you that, if the law
had been what you are now going to make it, the finest prose
work of fiction in the language, the finest biographical work in
the language, would very probably have been suppressed. But I
have stated my case weakly. The books which I have mentioned are
singularly inoffensive books, books not touching on any of those
questions which drive even wise men beyond the bounds of wisdom.
There are books of a very different kind, books which are the
rallying points of great political and religious parties. What
is likely to happen if the copyright of one of these books
should by descent or transfer come into the possession of some
hostile zealot?" Macaulay Speech, 199, 206.
33. Ibid., 205.
34. Ibid., 206.
35. Margaret Mitchell, Gone With the Wind (New York: Macmillan,
1936).
36. SunTrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357
(N.D.Ga. 2001). For thoughtful commentary see Jed Rubenfeld,
"The Freedom of Imagination: Copyright's Constitutionality,"
Yale Law Journal 112 (2002): 1-60. Robert S. Boynton provides a
beautifully readable account of copyright's restrictions in "The
Tyranny of Copyright?"
The New York Times Magazine (January 25, 2004): 40-45, available
at
http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html?ex=1
390366800&en=
9eb265b1f26e8b14&ei=5007&partner=USERLAND.
37. Yochai Benkler, "Through the Looking Glass: Alice and
Constitutional Foundations of the Public Domain," Law and
Contemporary Problems 66 (Winter-Spring 2003): 173.
38. SunTrust Bank v. Houghton Mifflin Co. 268 F.3d 1257 (11th
Cir. 2001).
39. See note 19 of this chapter for a discussion of the most
recent and thoughtful challenge to this claim.
40. Lord King, The Life of John Locke with Extracts from His
Correspondence, Journals and Common-Place Books vol. 1 (London:
Henry Colburn, 1830), 379-380.
41. Archives de la Préfecture de Police de Paris, ser. AA,
carton 200, feuilles 182-183, "Procès-verbal de police, section
de St. Geneviève, 23-24 octobre 1791." Quoted in Carla Hesse,
Publishing and Cultural Politics in Revolutionary Paris,
1789-1810 (Berkeley:University of California Press, 1991), 91.
42. Quoted in Hesse, Publishing and Cultural Politics, 100.
43. Victor Hugo, speech to the Conseil d'Etat, September 30,
1849, quoted in Bernard Edelman, Ownership of the Image:
Elements for a Marxist Theory of Law (London: Routledge & Kegan
Paul, 1979), 41.
44. Oeuvres de Condorcet, ed. A. Condorcet O'Connor and M. F.
Arago, vol. 11 (Paris: Firmin Didot Frères, 1847), 308,
available at http://books.google.com/books?id--
ZoGAAAAQAAJ.
45. Ibid., 308-309: "En effet, on sent qu'il ne peut y avoir
aucun rapport entre la propriété d'un ouvrage et celle d'un
champ, qui ne peut être cultivé que par un homme; d'un
meuble qui ne peut servir qu'à un homme, et dont, par
conséquent, la propriété exclusive est fondée sur la nature de
la chose. Ainsi ce n'est point ici une propriété dérivée de
l'ordre naturel, et défendue par la force sociale; c'est une
propriété fondée par la société même. Ce n'est pas un véritable
droit, c'est un privilége, comme ces jouissances exclusives de
tout ce qui peut être enlevé au possesseur unique sans
violence."
46. Ibid., 309: "Tout privilége est donc une gêne imposée à la
liberté, une restriction mise aux droits des autres citoyens;
dans ce genre il est nuisible non-seulement aux droits des
autres qui veulent copier, mais aux droits de tous ceux qui
veulent avoir des copies, et pour qui ce qui en augmente le prix
est une injustice. L'intérêt public exige-t-il que les hommes
fassent ce sacrifice? Telle est la question qu'il faut examiner;
en d'autres termes, les priviléges sont-ils nécessaires, utiles
ou nuisibles au progrès des lumières?"
47. James Boyle, Shamans, Software, and Spleens: Law and the
Construction of the Information Society (Cambridge, Mass.:
Harvard University Press, 1996), 55-57.
48. Hesse, Publishing and Cultural Politics, 121-122. As Hesse
points out, this legal legerdemain also produced an interesting
transformation in the status of the great authors of the French
tradition. "If the Old Regime first accorded Voltaire, Rousseau,
or Mirabeau the possibility of legal status as privileged
authors with perpetual private lineages for their texts, the
Revolution relocated these figures in the public domain, the
legal parallel to the civic rituals that unearthed them from
private gravesites and reposed their bodily remains in the
public temple of the Pantheon." Ibid., 123. One of the central
features of the debates described in this book is a starkly
different set of characterizations of the public domain. Is it a
communist repossession of the sacred rights of authors? The
noble common store of knowledge from which all future creators
can build? The worthless remainder of material that is no longer
worth protecting?
49. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton,
N.J.: Princeton University Press, 1957), 96-97.
50. Mark Helprin, "A Great Idea Lives Forever. Shouldn't Its
Copyright?" New York Times editorial (May 20, 2007), A12.
51. The two most influential and brilliant examples are Justin
Hughes, "The Philosophy of Intellectual Property," Georgetown
Law Journal 77 (1988): 287-366, and Wendy J. Gordon, "A Property
Right in Self-Expression: Equality and Individualism in the
Natural Law of Intellectual Property," Yale Law Journal 102
(1993): 1533-1610. Both of these articles attempt not to use
Locke as the basis for a world of absolute right, but instead to
focus on the Locke whose world of private property coexisted
with a commons--albeit one much diminished after the invention of
money. If one goes far enough into the Lockean conception--fine-
tuning "enough and as good" so as to allow for a vigorous
commons, and the claims of labor so as to take account of the
importance of the embedded contributions of culture and
science--then the differences between the Jeffersonian view and
the Lockean view start to recede in significance. Academics have
found the Lockean view attractive, noting, correctly, that Locke
is commonly brandished as a rhetorical emblem for property
schemes that he himself would have scorned. Yet when one looks
at the actual world of intellectual property policy discourse,
and the difficulty of enunciating even the simple Jeffersonian
antimonopolist ideas I lay out here, it is hard to imagine the
nuanced Lockean view flourishing. Consider this comment of
Jeremy Waldron's and ask yourself--is this result more likely
from within the Jeffersonian or the Lockean view?
Our tendency of course is to focus on authors when we think
about intellectual property. Many of us are authors ourselves:
reading a case about copyright we can empathize readily with a
plaintiff's feeling for the effort he has put in, his need to
control his work, and his natural desire to reap the fruits of
his own labor. In this Essay, however, I shall look at the way
we think about actual, potential and putative infringers of
copyright, those whose freedom is or might be constrained by
others' ownership of songs, plays, words, images and stories.
Clearly our concept of the author and this concept of the copier
are two sides of the same coin. If we think of an author as
having a natural right to profit from his work, then we will
think of the copier as some sort of thief; whereas if we think
of the author as beneficiary of a statutory monopoly, it may be
easier to see the copier as an embodiment of free enterprise
values. These are the connections I want to discuss, and my
argument will be that we cannot begin to unravel the conundrums
of moral justification in this area unless we are willing to
approach the matter even-handedly from both sides of the
question.
After a magisterial study of justifications for the existing
world of intellectual property, Waldron concludes, "[t]he fact
is, however, that whether or not we speak of a burden of proof,
an institution like intellectual property is not self-
justifying; we owe a justification to anyone who finds that he
can move less freely than he would in the absence of the
institution. So although the people whose perspective I have
taken--the copiers--may be denigrated as unoriginal plagiarists or
thieves of others' work, still they are the ones who feel the
immediate impact of our intellectual property laws. It affects
what they may do, how they may speak, and how they may earn a
living. Of course nothing is settled by saying that it is their
interests that are particularly at stake; if the tables were
turned, we should want to highlight the perspective of the
authors. But as things stand, the would-be copiers are the ones
to whom a justification of intellectual property is owed." See
Jeremy Waldron, "From Authors to Copiers: Individual Rights and
Social Values in Intellectual Property," Chicago-Kent Law Review
68 (1993): 841, 842, 887. That justification seems more
plausibly and practically to come from the perspective I sketch
out here. See also William Fisher, "Theories of Intellectual
Property," in New Essays in the Legal and Political Theory of
Property, ed. Stephen R. Munzer (Cambridge: Cambridge University
Press, 2001), 168-200.
52. Catherine Seville, Literary Copyright Reform in Early
Victorian England: The Framing of the 1842 Copyright Act
(Cambridge: Cambridge University Press, 1999), 46-48.
53. Macaulay Speech, 256.
54. This point is made today by a number of authors. See Yochai
Benkler, The Wealth of Networks: How Social Production
Transforms Markets and Freedom (New Haven, Conn.: Yale
University Press, 2006), available at
http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf; Neil
Weinstock Netanel, "Locating Copyright Within the First
Amendment Skein," Stanford Law Review 54 (2001): 1-86; Netanel,
"Copyright and a Democratic Civil Society," Yale Law Journal 106
(1996): 283-388; David McGowan, "First Amendment & Copyright
Policy," available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=460280;
Randal Picker, "Copyright as Entry Policy: The Case of Digital
Distribution," Antitrust Bulletin 47 (2002): 423, 424.
55. Quoted in Fritz Machlup and Edith Penrose, "The Patent
Controversy in the Nineteenth Century," Journal of Economic
History 10, no. 1 (1950): 4, n8.
56. Ironically, contemporary economists are rediscovering the
attractions of patent alternatives. A paper by Steven Shavell
and Tanguy Van Ypersele is particularly interesting in this
regard: "Rewards versus Intellectual Property Rights," NBER
Working Paper series, no. 6956, available at
http://www.nber.org/papers/w6956.
57. "Governor Thomas was so pleased with the construction of
this stove . . . that he offered to give me a patent for the
sole vending of them for a term of years; but I declined it from
a principle which has ever weighed with me on such occasions,
viz.: That, as we enjoy great advantages from the inventions of
others, we should be glad of an opportunity to serve others by
any invention of ours; and this we should do freely and
generously." Benjamin Franklin, Autobiography, in The Works of
Benjamin Franklin, ed. John Bigelow, vol. 1 (New York: G. P.
Putnam's Sons, 1904), 237-238.
58. Kenneth Arrow, "Economic Welfare and the Allocation of
Resources for Invention," in National Bureau of Economic
Research, The Rate and Direction of Inventive Activity: Economic
and Social Factors (Princeton, N.J.: Princeton University Press,
1962), 609-626.
59. Sanford J. Grossman and Joseph E. Stiglitz, "On the
Impossibility of Informationally Efficient Markets," American
Economic Review 70 (1980), 393-408; Boyle, Shamans, 35-42.
Notes: Chapter 3
1. Apart from being anonymous, this poem is extremely hard to
date. It probably originates in the enclosure controversies of
the eighteenth century. However, the earliest reference to it
that I have been able to discover is from 1821. Edward Birch was
moved to compose some (fairly poor) verses in response when he
reported "seeing the following jeu d'esprit in a Handbill posted
up in Plaistow, as a 'CAUTION' to prevent persons from
supporting the intended inclosure of Hainault or Waltham
Forest." He then quotes a version of the poem. Edward Birch,
Tickler Magazine 3 (February 1821), 45. In 1860, "Exon," a staff
writer for the journal Notes and Queries, declares that "the
animosity excited against the Inclosure Acts and their authors .
. . was almost without precedent: though fifty years and more
have passed, the subject is still a sore one in many parishes. .
. . I remember some years ago, in hunting over an old library
discovering a box full of printed squibs, satires and ballads of
the time against the acts and those who were supposed to favor
them,--the library having belonged to a gentleman who played an
active part on the opposition side." "Exon," "Ballads Against
Inclosures," Notes and Queries 9, 2nd series (February 1860):
130-131. He reports finding the poem in that box, and quotes a
verse from it. The context of the article makes it appear that
the poem itself must date from the late eighteenth century. In
other sources, the poem is sometimes dated at 1764, and said to
be in response to Sir Charles Pratt's fencing of common land.
See, e.g., Dana A. Freiburger, "John Thompson, English
Philomath--A Question of Land Surveying and Astronomy," n. 15,
available at
http://www.nd.edu/~histast4/exhibits/papers/Freiburger/. This
attribution is widespread and may well be true, but I have been
able to discover no contemporary source material that sustains
it. By the end of the nineteenth century, the poem was being
quoted, sometimes with amusement and sometimes with agreement,
on both sides of the Atlantic. See Ezra S. Carr, "Aids and
Obstacles to Agriculture on the Pacific-Coast," in The Patrons
of Husbandry on the Pacific Coast (San Francisco: A. L. Bancroft
and Co., 1875), 290-291; Edward P. Cheyney, An Introduction to
the Industrial and Social History of England (New York:
Macmillan, 1901), 219.
2. Although we refer to it as the enclosure movement, it was
actually a series of enclosures that started in the fifteenth
century and went on, with differing means, ends, and varieties
of state involvement, until the nineteenth. See, e.g., J. A.
Yelling, Common Field and Enclosure in England, 1450-1850
(Hamden, Conn.: Archon Books, 1977).
3. Thomas More, Utopia (New York: W. J. Black, 1947), 32.
4. Karl Polanyi, Great Transformation: The Political and
Economic Origins of Our Time (Boston: Beacon Press, 1957), 35.
Polanyi continues in the same vein. "The fabric of society was
being disrupted. Desolate villages and the ruins of human
dwellings testified to the fierceness with which the revolution
raged, endangering the defenses of the country, wasting its
towns, decimating its population, turning its overburdened soil
into dust, harassing its people and turning them from decent
husbandmen into a mob of beggars and thieves." Ibid. See also E.
P. Thompson, The Making of the English Working Class (London: V.
Gollancz, 1963), 218.
5. See generally Lord Ernle, English Farming Past and Present,
6th ed. (Chicago: Quadrangle Books, 1961).
6. For an excellent summary of the views of Hobbes, Locke, and
Blackstone on these points, see Hannibal Travis, "Pirates of the
Information Infrastructure: Blackstonian Copyright and the First
Amendment," Berkeley Technology Law Journal 15 (2000): 789-803.
7. More recent accounts which argue that enclosure led to
productivity gains tend to be more qualified in their praise.
Compare the more positive account given in Ernle, English
Farming, with Michael Turner, "English Open Fields and
Enclosures: Retardation or Productivity Improvements," Journal
of Economic History 46 (1986): 688: "Enclosure cannot be seen as
the automatic open door to this cycle of agricultural
improvement, but the foregoing estimates do suggest that perhaps
it was a door which opened frequently, and with profit."
8. Most notably work by Robert C. Allen: "The Efficiency and
Distributional Consequences of Eighteenth Century Enclosures,"
The Economic Journal 92 (1982): 937-953; Enclosure and The
Yeoman (New York: Oxford University Press, 1992). Allen argues
that the enclosure movement produced major distributional
consequences, but little observable efficiency gain. The pie was
carved up differently, to the advantage of the landlords, but
made no larger. In contrast, Turner sees enclosure as one
possible, though not a necessary, route to productivity gains
("English Open Fields," 688). Donald McCloskey's work also
argues for efficiency gains from enclosure, largely from the
evidence provided by rent increases. Donald N. McCloskey, "The
Enclosure of Open Fields: Preface to a Study of Its Impact on
the Efficiency of English Agriculture in the Eighteenth
Century," Journal of Economic History 32 (1972): 15-35; "The
Prudent Peasant: New Findings on Open Fields," Journal of
Economic History 51 (1991): 343-355. In Allen's view, however,
the increase in rents was largely a measure of the way that
changes in legal rights altered the bargaining power of the
parties and the cultural context of rent negotiations; enclosure
allowed landlords to capture more of the existing surplus
produced by the land, rather than dramatically expanding it.
"[T]he enclosure movement itself might be regarded as the first
state sponsored land reform. Like so many since, it was
justified with efficiency arguments, while its main effect
(according to the data analysed here) was to redistribute income
to already rich landowners." Allen, "Eighteenth Century
Enclosures," 950-951.
9. The possibility of producing "order without law" and thus
sometimes governing the commons without tragedy has also
fascinated scholars of contemporary land use. Robert C.
Ellickson, Order without Law: How Neighbors Settle Disputes
(Cambridge, Mass.: Harvard University Press, 1991); Elinor
Ostrom, Governing the Commons: The Evolution of Institutions for
Collective Action (Cambridge: Cambridge University Press, 1990).
10. The analogy to the enclosure movement has been too succulent
to resist. To my knowledge, Ben Kaplan, Pamela Samuelson, Yochai
Benkler, David Lange, Christopher May, David Bollier, and Keith
Aoki have all employed the trope, as I myself have on previous
occasions. For a particularly thoughtful and careful development
of the parallel between the two enclosure movements, see Travis,
"Pirates of the Information Infrastructure."
11. See, e.g., William A. Haseltine, "The Case for Gene
Patents," Technology Review(September 2000): 59, available at
http://www.technologyreview.com/articles/ haseltine0900.asp; cf.
Alexander K. Haas, "The Wellcome Trust's Disclosures of Gene
Sequence Data into the Public Domain & the Potential for
Proprietary Rights in the Human Genome," Berkeley Technology Law
Journal 16 (2001): 145-164.
12. See, e.g., Haseltine, "The Case for Gene Patents";
Biotechnology Industry Association, "Genentech, Incyte Genomics
Tell House Subcommittee Gene Patents Essential for Medical
Progress," available at
http://www.bio.org/news/newsitem.asp?id?2000_ 0713 _01.
13. See, e.g., Howard Markel, "Patents Could Block the Way to a
Cure," New York Times (August 24, 2001), A19. For the general
background to these arguments, see Rebecca S. Eisenberg,
"Patenting the Human Genome," Emory Law Journal 39 (1990):
740-744.
14. 793 P.2d 479, 488-497 (Cal. 1990).
15. Ibid., 493-494. One imagines Styrofoam coolers criss-
crossing the country by FedEx in an orgy of communistic flesh-
swapping.
16. Ibid., 493.
17. I might be suspected of anti-economist irony here. In truth,
neither side's arguments are fully satisfying. It is easy to
agree with Richard Posner that the language of economics offers
a "thin and unsatisfactory epistemology" through which to
understand the world. Richard Posner, The Problems of
Jurisprudence (Cambridge, Mass.: Harvard University Press,
1990): xiv (quoting Paul Bator, "The Judicial Universe of Judge
Richard Posner," University of Chicago Law Review 52 (1985):
1161). On the other hand, explaining what it means to "own one's
own body," or specifying the noncommodifiable limits on the
market, turns out to be a remarkably tricky business, as
Margaret Jane Radin has shown with great elegance in Contested
Commodities (Cambridge, Mass.: Harvard University Press, 1996).
18. Directive 96/9/EC of the European Parliament and of the
Council of 11 March 1996 on the Legal Protection of Databases,
1996 Official Journal of the European Union (L 77) 20, available
at http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html.
19. The phrase "Washington consensus" originated in John
Williamson, "What Washington Means by Policy Reform," in Latin
American Adjustment: How Much Has Happened? ed. John Williamson
(Washington, D.C.: Institute for International Economics, 1990).
Over time it has come to be used as shorthand for a neoliberal
view of economic policy that puts its faith in deregulation,
privatization, and the creation and defense of secure property
rights as the cure for all ills. (See Joseph Stiglitz, "The
World Bank at the Millennium," Economic Journal 109 [1999]:
577-597.) It has thus become linked to the triumphalist
neoliberal account of the end of history and the victory of
unregulated markets: see Francis Fukuyama, The End of History
and the Last Man (New York: Free Press, 1992). Neither of these
two results are, to be fair, what its creator intended. See John
Williamson, "What Should the Bank Think about the Washington
Consensus?" Institute for International Economics (July 1999),
available at
http://www.iie.com/publications/papers/paper.cfm?ResearchID=351.
20. Garrett Hardin, "The Tragedy of the Commons," Science 162
(1968): 1243-1248.
21. The differences are particularly strong in the arguments
over "desert"--are these property rights deserved or are they
simply violations of the public trust, privatizations of the
commons? For example, some would say that we never had the same
traditional claims over the genetic commons that the victims of
the first enclosure movement had over theirs; this is more like
newly discovered frontier land, or perhaps even privately
drained marshland, than it is like well-known common land that
all have traditionally used. In this case, the enclosers can
claim (though their claims are disputed) that they discovered or
perhaps simply made usable the territory they seek to own. The
opponents of gene patenting, on the other hand, turn more
frequently than the farmers of the eighteenth century to
religious and ethical arguments about the sanctity of life and
the incompatibility of property with living systems. These
arguments, or the appeals to free speech that dominate debates
over digital intellectual property, have no precise analogue in
debates over hunting or pasturage, though again there are common
themes. For example, we are already seeing nostalgic laments of
the loss of the immemorial rights of Internet users. At the same
time, the old language of property law is turned to this more
evanescent subject matter; a favorite title of mine is I.
Trotter Hardy, "The Ancient Doctrine of Trespass to Web Sites,"
1996, art. 7, Journal of Online Law art. 7, available at
http://www.wm.edu/law/publications/jol/95_96/hardy.html.
22. The exceptions to this statement turn out to be fascinating.
In the interest of brevity, however, I will ignore them
entirely.
23. Remember, I am talking here about increases in the level of
rights: protecting new subject matter for longer periods of
time, criminalizing certain technologies, making it illegal to
cut through digital fences even if they have the effect of
foreclosing previously lawful uses, and so on. Each of these has
the effect of diminishing the public domain in the name of
national economic policy.
24. James Boyle, Shamans, Software, and Spleens: Law and the
Construction of the Information Societ (Cambridge, Mass.:
Harvard University Press, 1996), 29; William M. Landes and
Richard A. Posner, "Economic Analysis of Copyright Law," Journal
of Legal Studies 18 (1989): 325; Pamela Samuelson and Suzanne
Scotchmer, "The Law & Economics of Reverse Engineering," Yale
Law Journal 111 (2002): 1575-1664; Jessica Litman, "The Public
Domain," Emory Law Journal 39 (1990): 1010-1011.
25. Sanford J. Grossman and Joseph E. Stiglitz, "On the
Impossibility of Informationally Efficient Markets," American
Economic Review 70 (1980): 404.
26. For a more technical account, see James Boyle, "Cruel, Mean,
or Lavish? Economic Analysis, Price Discrimination and Digital
Intellectual Property," Vanderbilt Law Review 53 (2000):
2007-2039.
27. The most recent example of this phenomenon is multiple legal
roadblocks in bringing GoldenRice to market. For a fascinating
study of the various issues involved and the strategies for
working around them, see R. David Kryder, Stanley P. Kowalski,
and Anatole F. Krattiger, "The Intellectual and Technical
Property Components of Pro-Vitamin A Rice (GoldenRiceTM): A
Preliminary Freedom-to-Operate Review," ISAAA Briefs No. 20
(2000), available at http://www.isaaa.org/Briefs/20/briefs.htm.
In assessing the economic effects of patents, one has to balance
the delays and increased costs caused by the web of property
rights against the benefits to society of the incentives to
innovation, the requirement of disclosure, and the eventual
access to the patented subject matter. When the qualification
levels for patents are set too low, the benefits are minuscule
and the costs very high--the web of property rights is
particularly tangled, complicating follow-on innovation, the
monopoly goes to "buy" a very low level of inventiveness, and
the disclosure is of little value.
28. Michael A. Heller and Rebecca S. Eisenberg, "Can Patents
Deter Innovation? The Anticommons in Biomedical Research,"
Science 280 (1998): 698-701.
29. Int'l News Serv. v. Associated Press, 248 U.S. 215, 250
(1918) (Brandeis, J., dissenting).
30. Yochai Benkler, "Free as the Air to Common Use: First
Amendment Constraints on Enclosure of the Public Domain," New
York University Law Review 74 (1999): 354, 361, 424.
31. The so-called "business method" patents, which cover such
"inventions" as auctions or accounting methods, are an obvious
example. See, e.g., State St. Bank & Trust Co. v. Signature Fin.
Group, Inc., 149 F.3d 1368, 1373 (Fed. Cir. 1998).
32. Database Investment and Intellectual Property Antipiracy Act
of 1996, HR 3531, 104th Cong. (1996); Collections of Information
Antipiracy Act, S 2291, 105th Cong. (1998).
33. See, e.g., Feist Publications v. Rural Tel. Serv. Co., 499
U.S. 340, 350 (1991): "Copyright treats facts and factual
compilations in a wholly consistent manner. Facts, whether alone
or as part of a compilation, are not original and therefore may
not be copyrighted." To hold otherwise "distorts basic copyright
principles in that it creates a monopoly in public domain
materials without the necessary justification of protecting and
encouraging the creation of 'writings' by 'authors.' " Ibid., at
354.
34. See Eisenberg, "Patenting the Human Genome"; Haas, "Wellcome
Trust's Disclosures."
35. Those who prefer topographical metaphors might imagine a
quilted pattern of public and private land, with legal rules
specifying that certain areas, beaches say, can never be
privately owned, and accompanying rules giving public rights of
way through private land if there is a danger that access to the
commons might otherwise be blocked.
36. See Jessica Litman, Digital Copyright: Protecting
Intellectual Property on the Internet (Amherst, N.Y.: Prometheus
Books, 2001).
37. See James Boyle, "Intellectual Property Policy Online: A
Young Person's Guide," Harvard Journal of Law & Technology 10
(1996): 47-112.
38. American Geophysical Union v. Texaco, 37 F.3d 882 (2nd Cir.
1994).
39. Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS
5669, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000).
40. eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058
(N.D. Cal. 2000).
41. Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). After
initially holding that while thumbnails were fair use, inline
links that displayed pictures were not fair use, the court
reversed itself and found fair use in both instances.
42. After a District Court issued a temporary injunction telling
Static Controls that it must cease manufacturing generic toner
cartridges that operated in Lexmark printers--indicating it was
likely to be found to be violating the Digital Millennium
Copyright Act's "anti-circumvention" provisions--the Appeals
Court held that such cartridges did not in fact violate the
DMCA. Lexmark International, Inc. v. Static Control Components,
Inc., 387 F.3d 522 (6th Cir. 2004).
43. Madey v. Duke Univ., 307 F.3d 1351 (Fed. Cir. 2003), cert.
denied, 539 U.S. 958 (2003).
44. "When scientists from Princeton University and Rice
University tried to publish their findings [on the
vulnerabilities in a copy protection scheme] in April 2001, the
recording industry claimed that the 1998 Digital Millennium
Copyright Act (DMCA) makes it illegal to discuss or provide
technology that might be used to bypass industry controls
limiting how consumers can use music they have purchased.
'Studying digital access technologies and publishing the
research for our colleagues are both fundamental to the progress
of science and academic freedom,' stated Princeton scientist
Edward Felten. 'The recording industry's interpretation of the
DMCA would make scientific progress on this important topic
illegal.' . . . "SDMI sponsored the 'SDMI Public Challenge' in
September 2000, asking Netizens to try to break their favored
watermark schemes, designed to control consumer access to
digital music. When the scientists' paper about their successful
defeat of the watermarks, including one developed by a company
called Verance, was accepted for publication, Matt Oppenheim, an
officer of both RIAA and SDMI, sent the Princeton professor a
letter threatening legal liability if the scientist published
his results." "EFF Media Release: Princeton Scientists Sue Over
Squelched Research," available at
http://w2.eff.org/IP/DMCA/Felten_v_RIAA/20010606_eff_felten_pr.h
tml. After a First Amendment challenge to the relevant
provisions of the DMCA, the threats were withdrawn.
45. See, e.g., Robert P. Merges, "As Many as Six Impossible
Patents before Breakfast: Property Rights for Business Concepts
and Patent System Reform," Berkeley Technology Law Journal 14
(1999): 615.
Notes: Chapter 4
1. For the background to these documents see James Boyle,
"Intellectual Property Policy Online: A Young Person's Guide,"
Harvard Journal of Law & Technology 10 (1996): 47-112; Jessica
Litman, Digital Copyright: Protecting Intellectual Property on
the Internet (Amherst, N.Y.: Prometheus Books, 2001).
2. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as
amended in scattered sections of 5, 17, 28, and 35 U.S.C.).
3. Intellectual Property and the National Information
Infrastructure: The Report of the Working Group on Intellectual
Property Rights (Washington, D.C.: Information Infrastructure
Task Force, 1995), 73 n. 227. Hereinafter White Paper.
4. White Paper, 84.
5. "Congress did not provide that one class in the community
could combine to restrain interstate trade and another class
could not. . . . It provided that 'every' contract, combination
or conspiracy in restraint of trade was illegal." Loewe v.
Lawlor, 208 U.S. 274 (1908); "Indians inhabiting this country
were fierce savages, whose occupation was war, and whose
subsistence was drawn chiefly from the forest. To leave them in
possession of their country, was to leave the country a
wilderness. . . ." Johnson v. M'Intosh, 21 U.S. 543, 590 (1823).
6. "As the entertainment and information markets have gotten
more complicated, the copyright law has gotten longer, more
specific, and harder to understand. Neither book publishers nor
libraries have any interest in making the library privilege
broad enough so that it would be useful to users that aren't
libraries, and neither movie studios nor broadcast stations have
any interest in making the broadcaster's privilege broad enough
to be of some use to say, cable television or satellite TV, so
that doesn't happen. Negotiated privileges tend to be very
specific, and tend to pose substantial entry barriers to
outsiders who can't be at the negotiating table because their
industries haven't been invented yet. So negotiated copyright
statutes have tended, throughout the century, to be kind to the
entrenched status quo and hostile to upstart new industries."
Litman, Digital Copyright, 25.
7. Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560,
561) (1996).
8. Reno v. ACLU, 521 U.S. 844 (1997).
9. James Boyle, "Overregulating the Internet," Washington Times
(November 14, 1995), A17.
10. See James Boyle, "The One Thing Government Officials Can't
Do Is Threaten Their Critics," Washington Times (March 6, 1996),
A16.
11. "The DFC was forged in 1995 in response to the release of
the Clinton administration's White Paper on Intellectual
Property and the National Information Infrastructure. The White
Paper recommended significantly altering existing copyright law
to increase the security of ownership rights for creators of
motion pictures, publishers and others in the proprietary
community. Members of the DFC recognized that if the policy
proposals delineated in the White Paper were implemented,
educators, businesses, libraries, consumers and others would be
severely restricted in their efforts to take advantage of the
benefits of digital networks." See
http://www.dfc.org/dfc1/Learning_Center/about.html.
12. See the classic account in Mancur Olson, The Logic of
Collective Action: Public Goods and the Theory of Groups, 2nd
ed. (Cambridge, Mass.: Harvard University Press, 1971).
13. See note 2 above.
14. Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as
amended in scattered sections of 17 and 18 U.S.C.).
15. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as
amended in scattered sections of 17 U.S.C.).
16. S 2291, 105th Cong. (1998).
17. Sony Corp. of America v. Universal City Studios, Inc., 464
U.S. 417 (1984).
18. See Tina Balio, Museum of Broadcast Communications, "Betamax
Case," Encyclopedia of TV (1997), available at
http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/
betamaxcase.htm ("The Betamax case went all the way to the
Supreme Court, which reversed the appeals court decision on 17
January 1984. By 1986, VCRs had been installed in fifty percent
of American homes and annual videocassettes sales surpassed the
theatrical box-office."). The year 1986 was also the peak of the
video rental market: "Video's high mark, according to studies by
A. C. Nielsen Media Research, was in late 1986, when an
estimated 34.3 million households with VCR's took home 111.9
million cassettes a month, or an average of 3.26 movies per
household." Peter M. Nichols, "Movie Rentals Fade, Forcing an
Industry to Change its Focus," New York Times (May 6, 1990), A1.
19. For background, see Wendy Gordon, "Fair Use as Market
Failure: A Structural and Economic Analysis of the Betamax Case
and Its Predecessors," Columbia Law Review 82 (1982): 1600-1657.
For accounts that imagine a reduction of fair use as transaction
costs fall, see Edmund W. Kitch, "Can the Internet Shrink Fair
Use?," Nebraska Law Review 78 (1999): 880-890; Robert P. Merges,
"The End of Friction? Property Rights and the Contract in the
'Newtonian' World of On-Line Commerce," Berkeley Technology Law
Journal 12 (1997): 115-136. This argument has hardly gone
unanswered with articles pointing out that it neglects both the
social values of fair use and the actual economics of its
operation. See Jonathan Dowell, "Bytes and Pieces: Fragmented
Copies, Licensing, and Fair Use in A Digital World," California
Law Review 86 (1998): 843-878; Ben Depoorter and Francesco
Parisi, "Fair Use and Copyright Protection: A Price Theory
Explanation," International Review of Law and Economics 21
(2002): 453-473.
20. "I believe the answer to the question of justification turns
primarily on whether, and to what extent, the challenged use is
transformative. The use must be productive and must employ the
quoted matter in a different manner or for a different purpose
from the original." Pierre N. Leval, "Toward a Fair Use
Standard," Harvard Law Review 103 (1990): 1111.
21. See Neil Weinstock Netanel, "Locating Copyright Within the
First Amendment Skein," Stanford Law Review 54 (2001): 1-86;
Yochai Benkler, "Free As the Air to Common Use: First Amendment
Constraints on Enclosure of the Public Domain," New York
University Law Review 74 (1999): 354-446; Larry Lessig, Melville
B. Nimmer Memorial Lecture: "Copyright's First Amendment" (March
1, 2001), in UCLA Law Review 48 (2001): 1057-1074; Melville B.
Nimmer, "Does Copyright Abridge the First Amendment Guaranties
of Free Speech and the Press?" UCLA Law Review 17 (1970):
1180-1204.
22. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th
Cir. 1992); Atari Games Corp. v. Nintendo of America Inc., 975
F.2d 832 (Fed. Cir. 1992).
23. Sony 464 U.S. at 441 n. 21.
24. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.
2001).
25. A&M Records v. Napster: C-SPAN Videotape 159534, Part 1 of 1
(October 2, 2000).
26. Felix Oberholzer-Gee and Koleman Strumpf, "The Effect of
File Sharing on Record Sales: An Empirical Analysis," Journal of
Political Economy 115, no. 1 (2007): 1-42.
27. Stan J. Liebowitz, "How Reliable Is the Oberholzer-Gee and
Strumpf Paper on File-Sharing?" available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id?1014399.
28. Rafael Rob and Joel Waldfogel, "Piracy on the High C's:
Music Downloading, Sales Displacement, and Social Welfare in a
Sample of College Students," available at
http://www.law.upenn.edu/polk/dropbox/waldfogel.pdf.
29. M. Peitz and P. Waelbroeck, "The Effect of Internet Piracy
on Music Sales: Cross-Section Evidence," Review of Economic
Research on Copyright Issues (December 2004): 71-79, available
at http://www.serci.org/docs_1_2/waelbroeck.pdf. For an
excellent general discussion see Rufus Pollock's summary of the
empirical evidence at
http://www.rufuspollock.org/economics/p2p_summary.html.
30. MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
31. J. H. Saltzer, D. P. Reed, and D. D. Clark, "End-to-End
Arguments in System Design," ACM Transactions on Computer
Systems (November 1984): 277.
32. Technically, this discussion fuses components of the
Internet--its transfer protocols, for example--with aspects of the
World Wide Web, the set of linked hypertext documents assembled
on top of it.
Notes: Chapter 5
1. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as
amended in scattered sections of 5, 17, 28, and 35 U.S.C.).
2. See Electronic Frontiers Foundation, "Unintended
Consequences," available at http://www.eff.org/wp/unintended-
consequences-seven-years-under-dmca.
3. See DVD Copy Control Association, "Frequently Asked
Questions," available at http://www.dvdcca.org/faq.html.
4. Thomas Mennecke, "Slyck.com Interviews Jon Lech Johansen"
(April 4, 2005), available at
http://www.slyck.com/news.php?story=733.
5. As is often the way, these pages have now been modified on
Wikipedia. At the time of writing, this excerpt can still be
found at http://www.indopedia.org/Eric_Corley.html.
6. Abraham Lincoln, Lecture on Discoveries and Inventions (April
6, 1858), available at
http://showcase.netins.net/web/creative/lincoln/speeches/discove
ries.htm.
7. See Neil Weinstock Netanel, "Locating Copyright Within the
First Amendment Skein," Stanford Law Review 54 (2001): 15
(citing Houghton Mifflin Co. v. Noram Publ'g Co., 28 F. Supp.
676 (S.D.N.Y. 1939); Houghton Mifflin Co. v. Stackpole Sons,
Inc., 104 F.2d 306 (2nd Cir. 1939) (upholding the validity of
the U.S. copyright in Mein Kampf ); Anthony O. Miller, "Court
Halted Dime Edition of 'Mein Kampf': Cranston Tells How Hitler
Sued Him and Won," Los Angeles Times, February 14, 1988, § 1, 4
(giving Cranston's version of the case's underlying facts)).
8. The Corley court was uncertain about this point.
("Preliminarily, we note that the Supreme Court has never held
that fair use is constitutionally required, although some
isolated statements in its opinions might arguably be enlisted
for such a requirement."). Universal City Studios v. Corley, 273
F.3d 429, 458 (2d Cir. 2001). In my view, both logic and those
"isolated statements" suggest that fair use is required. As I
point out later, when the Supreme Court revisited the matter in
the case of Eldred v. Ashcroft, 537 U.S. 186 (2003), it stressed
that it was precisely the internal limitations such as fair use
that made copyright law normally immune to First Amendment
scrutiny. The Court added "when . . . Congress has not altered
the traditional contours of copyright protection, further First
Amendment scrutiny is unnecessary." Ibid. at 221 (citing Harper
& Row, 471 U.S. at 560). Yet that is exactly what the DMCA does:
alters "the traditional contours of copyright protection" by
handing out the exclusive right at the same time as it confers a
legal power to remove the privilege of fair use.
9. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.
2d 294, 304-5 (S.D.N.Y. 2000).
10. Ibid., 329-30 (quoting Turner Broadcasting System, Inc. v.
FCC, 512 U.S. 622, 662 (1997) (quoting U.S. v. O'Brien, 391 U.S.
367, 377 (internal quotations omitted)).
11. Ibid., 331-332.
12. One empirical study seems to challenge this assumption,
though at modest levels. Rafael Rob and Joel Waldfogel, "Piracy
on the Silver Screen," Journal of Industrial Economics 55
(2007): 379-395. Rob and Waldfogel surveyed college
students--traditionally a population that engages in high levels
of downloading since they have "free" and extremely high speed
Internet connections, lots of leisure time, and low disposable
income. Even among this group, the authors found that total
levels of downloading were low--2.1 percent of paid consumption.
The authors also assumed that all unpaid downloading or DVD
burning was equal to piracy--an assumption that is clearly false.
The Sony case makes that clear. In fact, Rob and Waldfogel found
a positive relationship between second time unpaid viewings and
future paid viewings; watching the movie a second time on a
downloaded or privately made copy burned from the airwaves
actually was associated with more paid purchases. The authors
were skeptical of any causal link, however. Ibid., 389.
13. Admittedly, section 1201 only affects works protected under
the copyright act, so arguably the legal protection of the
digital fence would expire with the copyright term. But even if
the courts interpreted the statute this way, two problems would
remain. First, since the DMCA prohibited the trafficking in
tools which allowed the breaking of the encryption, the law
would have effectively forbidden the production of wire cutters
for gaining access to identically encrypted public domain
works--remember Judge Kaplan's discussion of the irrelevance of
Mr. Johansen's motives. Second, it would be trivially easy to
add a trivial amount of new copyrighted material to the work
that had fallen into the public domain. Access to the public
domain work would then be prohibited for another period of life
plus seventy years. And so on. The Copyright Office holds
hearings on the question of whether there are any "classes of
work" that need exemption from the DMCA's provisions. So far,
those exemptions have been highly restrictive in application.
14. Eldred v. Ashcroft, 537 U.S. 186 (2003) at 221 (citing
Harper & Row, 471 U.S. at 560).
15. Rob Pegoraro, "RealPlayer's iPod-Compatible Update 'Stunned'
Apple," Washington Post (August 8, 2004), F6.
16. Lexmark, Int'l v. Static Control Companies, Inc., 387 F.3d
522 (6th Cir. 2004).
17. Chamberlain Group, Inc. v. Skylink Tech., Inc., 381 F.3d
1178 (Fed. Cir. 2004). This of course was exactly the claim that
Mr. Corley's lawyers made, to no avail.
Notes: Chapter 6
1. Lisa de Moraes, "Kanye West's Torrent of Criticism, Live on
NBC," Washington Post (September 3, 2005), C1, available at
http://www.washingtonpost.com/wp-
dyn/content/article/2005/09/03/AR2005090300165.html.
2. John Leland, "Art Born of Outrage in the Internet Age," New
York Times (September 25, 2005), D3.
3. Ray Charles and David Ritz, Brother Ray: Ray Charles' Own
Story (Cambridge, Mass.:Da Capo Press, 1978), 86.
4. Robert W. Stephens, "Soul: A Historical Reconstruction of
Continuity and Change in Black Popular Music," The Black
Perspective in Music 12, no. 1 (Spring 1984): 32.
5. Forever Ray, available at
http://www.raycharles.com/the_man_biography.html.
6. Michael Lydon, Ray Charles (New York: Routledge, 2004), 419:
"Arnold Shaw, in The Rockin' 50's says that 'I Got a Woman' is
based on Jesus is All the World to Me. Because Renald Richard
left Ray's band before the song was recorded, he was not at
first properly credited: some record labels list [Ray Charles]
alone as the songwriter. Richard, however, straightened that out
with Atlantic, and he has for many years earned a substantial
income from his royalties."
7. See Stephens, "Soul," 32. The standard biographical
literature also repeats the same story:
In 1954 an historic recording session with Atlantic records
fused gospel with rhythm-and-blues and established Charles'
"sweet new style" in American music. One number recorded at that
session was destined to become his first great success.
Secularizing the gospel hymn "My Jesus Is All the World to Me,"
Charles employed the 8- and 16-measure forms of gospel music, in
conjunction with the 12-measure form of standard blues. Charles
contended that his invention of soul music resulted from the
heightening of the intensity of the emotion expressed by jazz
through the charging of feeling in the unbridled way of gospel.
"Ray Charles," Encyclopedia of World Biography, 2nd ed., vol. 3
(Detroit, Mich.: Gale Research, 1998), 469. Popular accounts
offer the same story:
This young, blind, black, gravelly-voiced singer brought
together the most engaging aspects of black music into one form
and began the process of synthesis that led to soul and,
ultimately, funk a decade later. He would turn around gospel
standards like "My Jesus Is All the World to Me," recreating it
as "I Got a Woman[.]"
Ricky Vincent, Funk: The Music, The People, and the Rhythm of
the One (New York: St. Martin's Griffin, 1996), 121. See also
Joel Hirschhorn, The Complete Idiot's Guide to Songwriting (New
York: Alpha Books, 2004), 108: "I Got a Woman was Ray's rewrite
of 'My Jesus Is All the World to Me.' "
Charles himself was more equivocal about the origins of the
song:
So I was lucky. Lucky to have my own band at this point in
my career. Lucky to be able to construct my musical building to
my exact specifications. And lucky in another way: While I was
stomping around New Orleans, I had met a trumpeter named Renolds
[sic] Richard who by thus time was in my band. One day he
brought me some words to a song. I dressed them up a little and
put them to music. The tune was called "I Got a Woman," and it
was another of those spirituals which I refashioned in my own
way. I Got a Woman was my first real smash, much bigger than
["]Baby Let Me Hold Your Hand[.]" This spiritual-and-blues
combination of mine was starting to hit.
Charles and Ritz, Brother Ray, 150.
8. See Lydon, Ray Charles, 419.
9. James Boyle, Shamans, Software, and Spleens: Law and the
Construction of the Information Society (Cambridge, Mass.:
Harvard University Press, 1996).
10. James Henke, Holly George-Warren, Anthony Decurtis, and Jim
Miller, The Rolling Stone Illustrated History of Rock and Roll:
The Definitive History of the Most Important Artists and Their
Music (New York: Random House, 1992), 130.
11. Great American Country, "Ray Charles Biography," available
at http://www.gactv.com/gac/ar_artists_a-
z/article/0,,GAC_26071_4888297,00.html.
12. "His 1955 smash 'I've Got a Woman,' for example, was adapted
from a gospel number he'd liked called 'I've Got a Savior.' "
Chip Deffaa, Blue Rhythms: Six Lives in Rhythm and Blues
(Urbana: University of Illinois Press, 1996), 161.
13. Columbia Catalog Number CO45097, available at
http://settlet.fateback.com/COL30000.htm.
14. J. C. Marion, "Ray Charles: The Atlantic Years," JammUpp 2
no. 32 (2004): 32,
http://home.earthlink.net/~v1tiger/jammuppvol2.html.
15. "If one can pinpoint a moment when gospel and blues began to
merge into a secular version of gospel song, it was in 1954 when
Ray Charles recorded 'My Jesus Is All the World to Me,' changing
its text to 'I Got A Woman.' The following year, he changed
Clara Ward's 'This Little Light of Mine' to 'This Little Girl of
Mine.' " Stephens, "Soul," 32.
16. Robert Lashley, "Why Ray Charles Matters," Blogcritics
Magazine, December 17, 2005,
http://blogcritics.org/archives/2005/12/17/032826.php:
But it was the staggering, nearly byzantine ambition that
encompassed Charles' musical mind which is the foundation for
his art. You can hear it in his first imprint on the pop music
world, 1955's I Got A Woman. The shuffling big beat borrows from
Louis Jordan's big band fusion, the backbeat is 2/4 gospel. The
arrangement is lucid, not quite jazz, not quite blues,
definitely not rock and roll but something sophisticated
altogether. The emotions are feral, but not quite the
primitiveness of rock and roll. It is the sound of life, a place
where there is an ever flowing river of cool. It, you might ask?
Rhythm and Blues, Ray Charles' invention.
A volcano bubbling under the surface, Ray spent the mid 50's
crafting timeless songs as if there were cars on an assembly[.]
Start with the blasphemous fusion of Hallelujah I [L]ove Her So
and This Little Girl of Mine, where Ray changes the words from
loving god to loving a woman, yet, in the intensity of his
performance, raises the question if he's still loving the same
thing.
The anonymous encyclopedists at Wikipedia agree:
Many of the most prominent soul artists, such as Aretha
Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in
the church and gospel music and brought with them much of the
vocal styles of artists such as Clara Ward and Julius Cheeks.
Secular songwriters often appropriated gospel songs, such as the
Pilgrim Travelers' song "I've Got A New Home," which Ray Charles
turned into "Lonely Avenue," or "Stand By Me," which Ben E. King
and Lieber and Stoller adapted from a well-known gospel song, or
Marvin Gaye's "Can I Get A Witness," which reworks traditional
gospel catchphrases. In other cases secular musicians did the
opposite, attaching phrases and titles from the gospel tradition
to secular songs to create soul hits such as "Come See About Me"
for the Supremes and "991?2Won't Do" for Wilson Pickett.
"Urban Contemporary Gospel," Wikipedia,
http://en.wikipedia.org/wiki/urban_contemporary_gospel.
17. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton,
N.J.: Princeton University Press, 1957), 96-97.
18. John Leland, "Art Born of Outrage in the Internet Age," New
York Times (September 25, 2005), D3.
19. Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780
F. Supp. 182 (S.D.N.Y. 1991).
20. Ibid., 183.
21. Kembrew McLeod, Owning Culture: Authorship, Ownership and
Intellectual Property Law (New York: Peter Lang, 2001), and Siva
Vaidhyanathan, Copyrights and Copywrongs: The Rise of
Intellectual Property and How It Threatens Creativity (New York:
New York University Press, 2001).
22. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792,
804n16 (6th Cir. 2005).
23. Walter Benjamin, "The Work of Art in the Age of Mechanical
Reproduction," in Illuminations: Essays and Reflections, ed.
Hannah Arendt, trans. Harry Zohn (New York: Harcourt, Brace &
World, 1968), 217-42.
24. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583
(1994).
Notes: Chapter 6
1. Lisa de Moraes, "Kanye West's Torrent of Criticism, Live on
NBC," Washington Post (September 3, 2005), C1, available at
http://www.washingtonpost.com/wp-
dyn/content/article/2005/09/03/AR2005090300165.html.
2. John Leland, "Art Born of Outrage in the Internet Age," New
York Times (September 25, 2005), D3.
3. Ray Charles and David Ritz, Brother Ray: Ray Charles' Own
Story (Cambridge, Mass.:Da Capo Press, 1978), 86.
4. Robert W. Stephens, "Soul: A Historical Reconstruction of
Continuity and Change in Black Popular Music," The Black
Perspective in Music 12, no. 1 (Spring 1984): 32.
5. Forever Ray, available at
http://www.raycharles.com/the_man_biography.html.
6. Michael Lydon, Ray Charles (New York: Routledge, 2004), 419:
"Arnold Shaw, in The Rockin' 50's says that 'I Got a Woman' is
based on Jesus is All the World to Me. Because Renald Richard
left Ray's band before the song was recorded, he was not at
first properly credited: some record labels list [Ray Charles]
alone as the songwriter. Richard, however, straightened that out
with Atlantic, and he has for many years earned a substantial
income from his royalties."
7. See Stephens, "Soul," 32. The standard biographical
literature also repeats the same story:
In 1954 an historic recording session with Atlantic records
fused gospel with rhythm-and-blues and established Charles'
"sweet new style" in American music. One number recorded at that
session was destined to become his first great success.
Secularizing the gospel hymn "My Jesus Is All the World to Me,"
Charles employed the 8- and 16-measure forms of gospel music, in
conjunction with the 12-measure form of standard blues. Charles
contended that his invention of soul music resulted from the
heightening of the intensity of the emotion expressed by jazz
through the charging of feeling in the unbridled way of gospel.
"Ray Charles," Encyclopedia of World Biography, 2nd ed., vol. 3
(Detroit, Mich.: Gale Research, 1998), 469. Popular accounts
offer the same story:
This young, blind, black, gravelly-voiced singer brought
together the most engaging aspects of black music into one form
and began the process of synthesis that led to soul and,
ultimately, funk a decade later. He would turn around gospel
standards like "My Jesus Is All the World to Me," recreating it
as "I Got a Woman[.]"
Ricky Vincent, Funk: The Music, The People, and the Rhythm of
the One (New York: St. Martin's Griffin, 1996), 121. See also
Joel Hirschhorn, The Complete Idiot's Guide to Songwriting (New
York: Alpha Books, 2004), 108: "I Got a Woman was Ray's rewrite
of 'My Jesus Is All the World to Me.' "
Charles himself was more equivocal about the origins of the
song:
So I was lucky. Lucky to have my own band at this point in
my career. Lucky to be able to construct my musical building to
my exact specifications. And lucky in another way: While I was
stomping around New Orleans, I had met a trumpeter named Renolds
[sic] Richard who by thus time was in my band. One day he
brought me some words to a song. I dressed them up a little and
put them to music. The tune was called "I Got a Woman," and it
was another of those spirituals which I refashioned in my own
way. I Got a Woman was my first real smash, much bigger than
["]Baby Let Me Hold Your Hand[.]" This spiritual-and-blues
combination of mine was starting to hit.
Charles and Ritz, Brother Ray, 150.
8. See Lydon, Ray Charles, 419.
9. James Boyle, Shamans, Software, and Spleens: Law and the
Construction of the Information Society (Cambridge, Mass.:
Harvard University Press, 1996).
10. James Henke, Holly George-Warren, Anthony Decurtis, and Jim
Miller, The Rolling Stone Illustrated History of Rock and Roll:
The Definitive History of the Most Important Artists and Their
Music (New York: Random House, 1992), 130.
11. Great American Country, "Ray Charles Biography," available
at http://www.gactv.com/gac/ar_artists_a-
z/article/0,,GAC_26071_4888297,00.html.
12. "His 1955 smash 'I've Got a Woman,' for example, was adapted
from a gospel number he'd liked called 'I've Got a Savior.' "
Chip Deffaa, Blue Rhythms: Six Lives in Rhythm and Blues
(Urbana: University of Illinois Press, 1996), 161.
13. Columbia Catalog Number CO45097, available at
http://settlet.fateback.com/COL30000.htm.
14. J. C. Marion, "Ray Charles: The Atlantic Years," JammUpp 2
no. 32 (2004): 32,
http://home.earthlink.net/~v1tiger/jammuppvol2.html.
15. "If one can pinpoint a moment when gospel and blues began to
merge into a secular version of gospel song, it was in 1954 when
Ray Charles recorded 'My Jesus Is All the World to Me,' changing
its text to 'I Got A Woman.' The following year, he changed
Clara Ward's 'This Little Light of Mine' to 'This Little Girl of
Mine.' " Stephens, "Soul," 32.
16. Robert Lashley, "Why Ray Charles Matters," Blogcritics
Magazine, December 17, 2005,
http://blogcritics.org/archives/2005/12/17/032826.php:
But it was the staggering, nearly byzantine ambition that
encompassed Charles' musical mind which is the foundation for
his art. You can hear it in his first imprint on the pop music
world, 1955's I Got A Woman. The shuffling big beat borrows from
Louis Jordan's big band fusion, the backbeat is 2/4 gospel. The
arrangement is lucid, not quite jazz, not quite blues,
definitely not rock and roll but something sophisticated
altogether. The emotions are feral, but not quite the
primitiveness of rock and roll. It is the sound of life, a place
where there is an ever flowing river of cool. It, you might ask?
Rhythm and Blues, Ray Charles' invention.
A volcano bubbling under the surface, Ray spent the mid 50's
crafting timeless songs as if there were cars on an assembly[.]
Start with the blasphemous fusion of Hallelujah I [L]ove Her So
and This Little Girl of Mine, where Ray changes the words from
loving god to loving a woman, yet, in the intensity of his
performance, raises the question if he's still loving the same
thing.
The anonymous encyclopedists at Wikipedia agree:
Many of the most prominent soul artists, such as Aretha
Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in
the church and gospel music and brought with them much of the
vocal styles of artists such as Clara Ward and Julius Cheeks.
Secular songwriters often appropriated gospel songs, such as the
Pilgrim Travelers' song "I've Got A New Home," which Ray Charles
turned into "Lonely Avenue," or "Stand By Me," which Ben E. King
and Lieber and Stoller adapted from a well-known gospel song, or
Marvin Gaye's "Can I Get A Witness," which reworks traditional
gospel catchphrases. In other cases secular musicians did the
opposite, attaching phrases and titles from the gospel tradition
to secular songs to create soul hits such as "Come See About Me"
for the Supremes and "991?2Won't Do" for Wilson Pickett.
"Urban Contemporary Gospel," Wikipedia,
http://en.wikipedia.org/wiki/urban_contemporary_gospel.
17. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton,
N.J.: Princeton University Press, 1957), 96-97.
18. John Leland, "Art Born of Outrage in the Internet Age," New
York Times (September 25, 2005), D3.
19. Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780
F. Supp. 182 (S.D.N.Y. 1991).
20. Ibid., 183.
21. Kembrew McLeod, Owning Culture: Authorship, Ownership and
Intellectual Property Law (New York: Peter Lang, 2001), and Siva
Vaidhyanathan, Copyrights and Copywrongs: The Rise of
Intellectual Property and How It Threatens Creativity (New York:
New York University Press, 2001).
22. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792,
804n16 (6th Cir. 2005).
23. Walter Benjamin, "The Work of Art in the Age of Mechanical
Reproduction," in Illuminations: Essays and Reflections, ed.
Hannah Arendt, trans. Harry Zohn (New York: Harcourt, Brace &
World, 1968), 217-42.
24. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583
(1994).
Notes: Chapter 8
1. Clay Shirky, "Supernova Talk: The Internet Runs on Love,"
available at
http://www.shirky.com/herecomeseverybody/2008/02/supernova-talk-
the-internet-runs-on-love.html; see also Clay Shirky, Here Comes
Everybody: The Power of Organizing Without Organizations (New
York: Penguin Press, 2008).
2. See Glyn Moody, Rebel Code: Linux and the Open Source
Revolution (Cambridge, Mass.: Perseus Pub., 2001); Peter Wayner,
Free for All: How Linux and the Free Software Movement Undercut
the High-Tech Titans (New York: HarperBusiness, 2000); Eben
Moglen, "Anarchism Triumphant: Free Software and the Death of
Copyright," First Monday 4 (1999),
http://firstmonday.org/issues/issue4_8/index.html.
3. Proprietary, or "binary only," software is generally released
only after the source code has been compiled into machine-
readable object code, a form that is impenetrable to the user.
Even if you were a master programmer, and the provisions of the
Copyright Act, the appropriate licenses, and the DMCA did not
forbid you from doing so, you would be unable to modify
commercial proprietary software to customize it for your needs,
remove a bug, or add a feature. Open source programmers say,
disdainfully, that it is like buying a car with the hood welded
shut. See, e.g., Wayner, Free for All, 264.
4. See Brian Behlendorf, "Open Source as a Business Strategy,"
in Open Sources: Voices from the Open Source Revolution, ed.
Chris DiBona et al. (Sebastapol, Calif.: O'Reilly, 1999), 149,
163.
5. One organization theorist to whom I mentioned the idea said,
"Ugh, governance by food fight." Anyone who has ever been on an
organizational listserv, a global production process run by
people who are long on brains and short on social skills, knows
how accurate that description is. E pur si muove.
6. See Bruce Brown, "Enterprise-Level Security Made Easy," PC
Magazine (January 15, 2002), 28; Jim Rapoza, "Open-Source Fever
Spreads," PC Week (December 13, 1999), 1.
7. "UK Government Report Gives Nod to Open Source," Desktop
Linux (October 28, 2004), available at
http://www.desktoplinux.com/news/NS5013620917.html.
8. "Cases of Official Recognition of Free and Open Source
Software," available at
http://ec.europa.eu/information_society/activities/opensource/ca
ses/index_en.htm.
9. E. Cobham Brewer, The Dictionary of Phrase and Fable (London:
John Cassell, 1894), 1111-1112.
10. Richard Epstein, "Why Open Source Is Unsustainable," FT.com
(October 21, 2004), available at
http://www.ft.com/cms/s/2/78d9812a-2386-11d9-aee5-00000e2511c8
.html.
11. For a seminal statement, see Moglen, "Anarchism Triumphant,"
45: " '[I]ncentives' is merely a metaphor, and as a metaphor to
describe human creative activity it's pretty crummy. I have said
this before, but the better metaphor arose on the day Michael
Faraday first noticed what happened when he wrapped a coil of
wire around a magnet and spun the magnet. Current flows in such
a wire, but we don't ask what the incentive is for the electrons
to leave home. We say that the current results from an emergent
property of the system, which we call induction. The question we
ask is 'what's the resistance of the wire?' So Moglen's
Metaphorical Corollary to Faraday's Law says that if you wrap
the Internet around every person on the planet and spin the
planet, software flows in the network. It's an emergent property
of connected human minds that they create things for one
another's pleasure and to conquer their uneasy sense of being
too alone. The only question to ask is, what's the resistance of
the network? Moglen's Metaphorical Corollary to Ohm's Law states
that the resistance of the network is directly proportional to
the field strength of the 'intellectual property' system. So the
right answer to the econodwarf is, resist the resistance."
12. Benkler's reasoning is characteristically elegant, even
formal in its precision, while mine is clunkier. See Yochai
Benkler, "Coase's Penguin, or, Linux and the Nature of the
Firm," Yale Law Journal 112 (2002): 369-446.
13. Yochai Benkler, The Wealth of Networks: How Social
Production Transforms Markets and Freedom (New Haven, Conn.:
Yale University Press, 2006), 46-47.
14. See Karl Popper, The Open Society and Its Enemies (London:
Routledge, 1945).
15. See http://www.ensembl.org.
16. See, e.g., NASA's "Clickworkers" experiment, which used
public volunteers to analyze Mars landing data, available at
http://clickworkers.arc.nasa.gov/top.
17. Benkler, "Coase's Penguin," 11.
18. Free Software Foundation,
http://www.gnu.ai.mit.edu/philosophy/free-sw.html.
19. Exhibit A: the Internet--from the software and protocols on
which it runs to the multiple volunteer sources of content and
information.
20. See, e.g., the Database Investment and Intellectual Property
Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); The
Consumer Access Bill, HR 1858, 106th Cong. § 101(1) (1999); see
also Council Directive 96/9/EC of the European Parliament and
the Council of 11 March 1996 on the Legal Protection of
Databases, 1996 Official Journal of the European Union, L77
(27.03.1996): 20-28.
21. See generally Julie E. Cohen and Mark A. Lemley, "Patent
Scope and Innovation in the Software Industry," California Law
Review 89 (2001): 1-58; see also Pamela Samuelson et al., "A
Manifesto Concerning the Legal Protection of Computer Programs,"
Columbia Law Review 94 (1994): 2308-2431.
22. Uniform Computer Information Transactions Act, available at
http://www.law.upenn.edu/bll/archives/ulc/ucita/2002final.htm.
23. 17 U.S.C. § 1201 (2002).
24. This point has been ably made by Pamela Samuelson, Jessica
Litman, Jerry Reichman, Larry Lessig, and Yochai Benkler, among
others. See Pamela Samuelson, "Intellectual Property and the
Digital Economy: Why the Anti-Circumvention Regulations Need to
Be Revised," Berkeley Technology Law Journal 14 (1999): 519-566;
Jessica Litman, Digital Copyright: Protecting Intellectual
Property on the Internet (Amherst, N.Y.: Prometheus Books,
2001); J. H. Reichman and Paul F. Uhlir, "Database Protection at
the Crossroads: Recent Developments and Their Impact on Science
and Technology," Berkeley Technology Law Journal 14 (1999):
793-838; Lawrence Lessig, "Jail Time in the Digital Age," New
York Times (July 30, 2001), A17; and Yochai Benkler, "Free as
the Air to Common Use: First Amendment Constraints on Enclosure
of the Public Domain," New York University Law Review 74 (1999):
354-446. Each has a slightly different focus and emphasis on the
problem, but each has pointed out the impediments now being
erected to distributed, nonproprietary solutions. See also James
Boyle, "Cruel, Mean, or Lavish? Economic Analysis, Price
Discrimination and Digital Intellectual Property," Vanderbilt
Law Review 53 (2000): 2007-2039.
25. William W. Fisher III, "Property and Contract on the
Internet," Chicago-Kent Law Review 73 (1998): 1217-1218.
26. See James Boyle, "Missing the Point on Microsoft," Salon.com
(April 7, 2000), http://
www.salon.com/tech/feature/2000/04/07/greenspan/index.html.
27. See "Salam Pax," Wikipedia, available at
http://en.wikipedia.org/wiki/Salam_Pax.
Notes: Chapter 9
1. Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S. 340 (1991).
2. Stephen M. Maurer, P. Bernt Hugenholtz, and Harlan J. Onsrud,
"Europe's Database Experiment," Science 294 (2001): 789-790.
3. Stephen M. Maurer, "Across Two Worlds: US and European Models
of Database Protection," paper commissioned by Industry Canada
(2001).
4. Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674
(2nd Cir. 1998).
5. James Boyle, Shamans, Software, and Spleens: Law and the
Construction of the Information Society (Cambridge, Mass.:
Harvard University Press, 1996).
6. First evaluation of Directive 96/9/EC on the legal protection
of databases, DG Internal Market and Services Working Paper
(Brussels, Belgium: Commission of the European Communities,
2005), 5.
7. Ibid., 22.
8. In Open Access and the Public Domain in Digital Data and
Information for Science: Proceedings of an International
Symposium (Washington, D.C.: National Academies Press, 2004),
69-73, available at
http://books.nap.edu/openbook.php?record_id?11030&page?69.
9. Directive 2003/98/EC of the European Parliament and of the
Council of 17 November 2003 on the Re-use of Public Sector
Information, Official Journal of the European Union, L 345
(31.12.2003): 90-96; Public Sector Modernisation: Open
Government, Organization for Economic Co-operation and
Development (2005), available at
http://www.oecd.org/dataoecd/1/35/34455306.pdf; The
Socioeconomic Effects of Public Sector Information on Digital
Networks: Toward a Better Understanding of Different Access and
Reuse Policies (February 2008 OECD conference), more information
at
http://www.oecd.org/document/48/0,3343,en_2649_201185_40046832_1
_1_1_1,00.html; and the government sites of individual countries
in the European Union such as Ireland (-http://www.psi.gov.ie/).
10. Andrew Gowers, Gowers Review of Intellectual Property
(London: HMSO, 2006), available at http://www.hm-
treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf
11. University of Cambridge Centre for Intellectual Property and
Information Law, Review of the Economic Evidence Relating to an
Extension of Copyright in Sound Recordings (2006), available at
http://www.hm-treasury.gov.uk/media/B/4/gowers_ cipilreport.pdf.
12. Ibid., 21-22.
13. Ibid.
14. House of Commons Select Committee on Culture, Media and
Sport, Fifth Report (2007), available at
http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcum
eds/509/50910.htm.
Notes: Chapter 10
1. Jonathan Zittrain, The Future of the Internet--And How to Stop
It (New Haven, Conn.: Yale University Press, 2008).
2. Of course, these are not the only assumptions, arguments, and
metaphors around. Powerful counterweights exist: the ideas of
Jefferson and Macaulay, which I described here, but also others,
more loosely related--the Scottish Enlightenment's stress on the
political and moral benefits of competition, free commerce, and
free labor; deep economic and political skepticism about
monopolies; the strong traditions of open science; and even
liberalism's abiding focus on free speech and access to
information. If you hear the slogan "information wants to be
free," you may agree or disagree with the personification. You
may find the idea simplistic. But you do not find it
incomprehensible, as you might if someone said "housing wants to
be free" or "food wants to be free." We view access to
information and culture as vital to successful versions of both
capitalism and liberal democracy. We apply to blockages in
information flow or disparities in access to information a
skepticism that does not always apply to other social goods. Our
attitudes toward informational resources are simply different
from our attitudes toward other forms of power, wealth, or
advantage. It is one of the reasons that the Jefferson Warning
is so immediately attractive. It is this attitudinal difference
that makes the political terrain on these issues so fascinating.
3. Mancur Olson, The Logic of Collective Action: Public Goods
and the Theory of Groups (Cambridge, Mass.: Harvard University
Press, 1965) and Mancur Olson, The Rise and Decline of Nations:
Economic Growth, Stagflation, and Social Rigidities (New Haven,
Conn.: Yale University Press, 1982).
4. "The source of the general divergences between the values of
marginal social and marginal private net product that occur
under simple competition is the fact that, in some occupations,
a part of the product of a unit of resources consists of
something, which, instead of coming in the first instance to the
person who invests the unit, comes instead, in the first
instance (i.e., prior to sale if sale takes place), as a
positive or negative item, to other people." Arthur C. Pigou,
"Divergences between Marginal Social Net Product and Marginal
Private Net Product," in The Economics of Welfare (London:
Macmillan, 1932), available at
http://www.econlib.org/Library/NPDBooks/Pigou/pgEW1.html.
Ironically, so far as I can find, Pigou does not use the word
"externality."
5. William D. Ruckelshaus, "Environmental Protection: A Brief
History of the Environmental Movement in America and the
Implications Abroad," Environmental Law 15 (1985): 457.
6. As always, Jessica Litman provides the clearest and most
down-to-earth example. Commenting on Rebecca Tushnet's
engrossing paper on fan fiction (Rebecca Tushnet, "Payment in
Credit: Copyright Law and Subcultural Creativity," Law and
Contemporary Problems 70 (Spring 2007): 135-174), Litman
describes copyright's "balance between uses copyright owners are
entitled to control and other uses that they simply are not
entitled to control." Jessica Litman, "Creative Reading," Law
and Contemporary Problems 70 (Spring 2007), 175. That balance,
she suggests, is not bug but feature. The spaces of freedom that
exist in the analog world because widespread use is possible
without copying are neither oversights, nor temporarily
abandoned mines of monopoly rent just waiting for a better
technological retrieval method. They are integral parts of the
copyright system.
7. James Boyle, "A Politics of Intellectual Property:
Environmentalism for the Net?" Duke Law Journal 47 (1997):
87-116.
8. Molly Shaffer Van Houweling, "Cultural Environmentalism and
the Constructed Commons," Law and Contemporary Problems 70
(Spring 2007): 23-50.
9. See http://www.eff.org/IP/, http://www.openrightsgroup.org/,
http://www.publicknowledge.org/.
10. Eldred v. Ashcroft, 537 U.S. 186 (2003). Once again,
Professor Lessig had the central role as counsel for
petitioners.
11. See http://www.pubpat.org/.
12. See Access to Knowledge, http://www.cptech.org/a2k/. Some of
Mr. Love's initiatives are discussed at
http://www.cptech.org/jamie/.
13. Tim Hubbard and James Love, "A New Trade Framework for
Global Healthcare R&D," PLoS Biology 2 (2004): e52.
14. WIPO Development Agenda, available at
http://www.cptech.org/ip/wipo/da.html. The Geneva Declaration on
the Future of the World Intellectual Property Organization,
available at
http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf. In
the interest of full disclosure, I should note that I wrote one
of the first manifestos that formed the basis for earlier drafts
of the Declaration. James Boyle, "A Manifesto on WIPO and the
Future of Intellectual Property," Duke Law & Technology Review
0009 (2004): 1-12, available at
http://www.law.duke.edu/journals/dltr/articles/PDF/2004DLTR0009.
pdf. The Adelphi Charter on Creativity, Innovation, and
Intellectual Property, available at
http://www.adelphicharter.org/. The Charter was issued by the
British Royal Society for the Encouragement of Arts,
Manufactures and Commerce (RSA). For discussion of the Charter
see James Boyle, "Protecting the Public Domain," Guardian.co.uk
(October 14, 2005), available at
http://education.guardian.co.uk/
higher/comment/story/0,9828,1591467,00.html; "Free Ideas," The
Economist (October 15, 2005), 68. Again, in the interest of full
disclosure, I should note that I advised the RSA on these issues
and was on the steering committee of the group that produced the
Charter.
15. An example is the MacArthur Foundation Program on
Intellectual Property and the Public Domain: "The General
Program . . . was begun in 2002 as a short-term project to
support new models, policy analysis, and public education
designed to bring about balance between public and private
interests concerning intellectual property rights in a digital
era." See
http://www.macfound.org/site/c.lkLXJ8MQKrH/b.943331/k.DA6/Genera
l_Grantmaking__Intellectual_Property.htm. The Ford Foundation
has a similar initiative. Frédéric Sultan, "International
Intellectual Property Initiative: Ford Foundation I-Jumelage
Resources," available at
http://www.vecam.org/ijumelage/spip.php?article609.
16. See http://www.creativecommons.org and http://www.fsf.org.
17. This process runs counter to the assumptions of theorists of
collective action problems in a way remarkable enough to have
attracted its own chroniclers. See Amy Kapczynski, "The Access
to Knowledge Mobilization and the New Politics of Intellectual
Property," Yale Law Journal 117 (2008): 804-885. Economists
generally assume preferences are simply given, individuals just
have them and they are "exogenous" to the legal system in the
sense that they are unaffected by the allocation of legal
rights. The emergence of the movements and institutions I am
describing here paints a different picture. The "preferences"
are socially constructed, created through a collective process
of debate and decision which shifts the level of abstraction
upwards; and, as Kapczynski perceptively notes, they are highly
influenced by the legal categories and rights against which the
groups involved initially defined themselves.
18. See "News for Nerds: Stuff That Matters,"
http://www.slashdot.org, and "A Directory of Wonderful Things,"
http://www.boingboing.net.
19. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as
amended in scattered sections of 5, 17, 28, and 35 U.S.C.).
20. For the former see "Content Protection,"
http://xkcd.com/c129.html, and "Digital Rights Management,"
http://xkcd.com/c86.html. For the latter, see "Copyright,"
http://xkcd.com/c14.html.
21. R. David Kryder, Stanley P. Kowalski, and Anatole F.
Krattiger, "The Intellectual and Technical Property Components
of Pro-Vitamin A Rice (GoldenRiceTM): A Preliminary Freedom-to-
Operate Review," ISAAA Briefs No. 20 (2000), available at
http://www.isaaa.org/Briefs/20/briefs.htm.
22. "The Supreme Court Docket: The Coming of Copyright
Perpetuity," New York Times editorial (January 16, 2003), A28.
23. "Free Mickey Mouse," Washington Post editorial (January 21,
2003), A16.
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