Free Culture - How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity
Lawrence Lessig (2004-03-25)


1. David Pogue, “Don't Just Chat, Do Something,” New York Times, 30 January 2000.

2. Richard M. Stallman, Free Software, Free Societies 57 ( Joshua Gay, ed. 2002).

3. William Safire, ”The Great Media Gulp," New York Times, 22 May 2003.

4. St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18.

5. United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that there could be a ”taking“ if the government's use of its land effectively destroyed the value of the Causbys' land. This example was suggested to me by Keith Aoki's wonderful piece, ”(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), 1112-13.

6. Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209.

7. See ”Saints: The Heroes and Geniuses of the Electronic Era," First Electronic Church of America, at, available at link #1.

8. Lessing, 226.

9. Lessing, 256.

10. Amanda Lenhart, “The Ever-Shifting Internet Population: A New Look at Internet Access and the Digital Divide,” Pew Internet and American Life Project, 15 April 2003: 6, available at link #2.

11. This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. State copyright law historically protected not just the commercial interest in publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193, 198-200.

12. 9. See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13.

13. Amy Harmon, “Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the Net into an Illicit Video Club,” New York Times, 17 January 2002.

14. Neil W. Netanel, “Copyright and a Democratic Civil Society,” Yale Law Journal 106 (1996): 283.

15. Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).

16. See Rochelle Dreyfuss, “Expressive Genericity: Trademarks as Language in the Pepsi Generation,” Notre Dame Law Review 65 (1990): 397.

17. Lisa Bannon, “The Birds May Sing, but Campers Can't Unless They Pay Up,” Wall Street Journal, 21 August 1996, available at link #3; Jonathan Zittrain, “Calling Off the Copyright War: In Battle of Property vs. Free Speech, No One Wins,” Boston Globe, 24 November 2002.

18. In The Rise of the Creative Class (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of labor toward a labor of creativity. His work, however, doesn't directly address the legal conditions under which that creativity is enabled or stifled. I certainly agree with him about the importance and significance of this change, but I also believe the conditions under which it will be enabled are much more tenuous.

19. Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons (New York: Penguin Books, 1987), 34-35.

20. I am grateful to David Gerstein and his careful history, described at link #4. According to Dave Smith of the Disney Archives, Disney paid royalties to use the music for five songs in Steamboat Willie: “Steamboat Bill,” “The Simpleton” (Delille), “Mischief Makers” (Carbonara), “Joyful Hurry No. 1” (Baron), and “Gawky Rube” (Lakay). A sixth song, “The Turkey in the Straw,” was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author.

21. He was also a fan of the public domain. See Chris Sprigman, “The Mouse that Ate the Public Domain,” Findlaw, 5 March 2002, at link #5.

22. Until 1976, copyright law granted an author the possibility of two terms: an initial term and a renewal term. I have calculated the “average” term by determining the weighted average of total registrations for any particular year, and the proportion renewing. Thus, if 100 copyrights are registered in year 1, and only 15 are renewed, and the renewal term is 28 years, then the average term is 32.2 years. For the renewal data and other relevant data, see the Web site associated with this book, available at link #6.

23. For an excellent history, see Scott McCloud, Reinventing Comics (New York: Perennial, 2000).

24. See Salil K. Mehra, “Copyright and Comics in Japan: Does Law Explain Why All the Comics My Kid Watches Are Japanese Imports?” Rutgers Law Review 55 (2002): 155, 182. “[T]here might be a collective economic rationality that would lead manga and anime artists to forgo bringing legal actions for infringement. One hypothesis is that all manga artists may be better off collectively if they set aside their individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved.”

25. The term intellectual property is of relatively recent origin. See Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), 293 n. 26. The term accurately describes a set of “property” rights - copyright, patents, trademark, and trade-secret - but the nature of those rights is very different.

26. Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.

27. Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53.

28. Jenkins, 177.

29. Based on a chart in Jenkins, p. 178.

30. Coe, 58.

31. For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Foster-Milburn Co. v. Chinn, 123090 S.W. 364, 366 (Ky. 1909); Corliss v. Walker, 64 F. 280 (Mass. Dist. Ct. 1894).

32. Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193.

33. See Melville B. Nimmer, “The Right of Publicity,” Law and Contemporary Problems 19 (1954): 203; William L. Prosser, “Privacy,” California Law Review 48 (1960) 398-407; White v. Samsung Electronics America, Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).

34. H. Edward Goldberg, “Essential Presentation Tools: Hardware and Software You Need to Create Digital Multimedia Presentations,” cadalyst, 1 February 2002, available at link #7.

35. Judith Van Evra, Television and Child Development (Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); “Findings on Family and TV Study,” Denver Post, 25 May 1997, B6.

36. Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002.

37. See Scott Steinberg, “Crichton Gets Medieval on PCs,” E!online, 4 November 2000, available at link #8; “Timeline,” 22 November 2000, available at link #9.

38. Interview with Daley and Barish.

39. Ibid.

40. See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.

41. Bruce Ackerman and James Fishkin, “Deliberation Day,” Journal of Political Philosophy 10 (2) (2002): 129.

42. Cass Sunstein, (Princeton: Princeton University Press, 2001), 65-80, 175, 182, 183, 192.

43. Noah Shachtman, “With Incessant Postings, a Pundit Stirs the Pot,” New York Times, 16 January 2003, G5.

44. Telephone interview with David Winer, 16 April 2003.

45. John Schwartz, “Loss of the Shuttle: The Internet; A Wealth of Information Online,” New York Times, 2 February 2003, A28; Staci D. Kramer, “Shuttle Disaster Coverage Mixed, but Strong Overall,” Online Journalism Review, 2 February 2003, available at link #10.

46. See Michael Falcone, “Does an Editor's Pencil Ruin a Web Log?” New York Times, 29 September 2003, C4. (“Not all news organizations have been as accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq who started a blog about his reporting of the war on March 9, stopped posting 12 days later at his bosses' request. Last year Steve Olafson, a Houston Chronicle reporter, was fired for keeping a personal Web log, published under a pseudonym, that dealt with some of the issues and people he was covering.”)

47. See, for example, Edward Felten and Andrew Appel, “Technological Access Control Interferes with Noninfringing Scholarship,” Communications of the Association for Computer Machinery 43 (2000): 9.

48. Tim Goral, “Recording Industry Goes After Campus P-2-P Networks: Suit Alleges $97.8 Billion in Damages,” Professional Media Group LCC 6 (2003): 5, available at 2003 WL 55179443.

49. Occupational Employment Survey, U.S. Dept. of Labor (2001) (27-2042 - Musicians and Singers). See also National Endowment for the Arts, More Than One in a Blue Moon (2000).

50. Douglas Lichtman makes a related point in “KaZaA and Punishment,” Wall Street Journal, 10 September 2003, A24.

51. I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87-93, which details Edison's “adventures” with copyright and patent.

52. J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion Picture Producers (Cobblestone Entertainment, 2000) and expanded texts posted at ”The Edison Movie Monopoly: The Motion Picture Patents Company vs. the Independent Outlaws,“ available at link #11. For a discussion of the economic motive behind both these limits and the limits imposed by Victor on phonographs, see Randal C. Picker, ”From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright" (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics, Working Paper No. 159.

53. Marc Wanamaker, “The First Studios,” The Silents Majority, archived at link #12.

54. To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).

55. To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of Nathan Burkan, attorney for the Music Publishers Association).

56. To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of Nathan Burkan, attorney for the Music Publishers Association).

57. To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer).

58. To Amend and Consolidate the Acts Respecting Copyright, 283-84 (statement of Albert Walker, representative of the Auto-Music Perforating Company of New York).

59. To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association).

60. Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).

61. Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on the Judiciary, 90th Cong., 1st sess., House Document no. 83, 66 (8 March 1967). I am grateful to Glenn Brown for drawing my attention to this report.

62. See 17 United States Code, sections 106 and 110. At the beginning, record companies printed “Not Licensed for Radio Broadcast” and other messages purporting to restrict the ability to play a record on a radio station. Judge Learned Hand rejected the argument that a warning attached to a record might restrict the rights of the radio station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, “From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright,” University of Chicago Law Review 70 (2003): 281.

63. Copyright Law Revision - CATV: Hearing on S. 1006 Before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel H. Hyde, chairman of the Federal Communications Commission).

64. Copyright Law Revision - CATV, 116 (statement of Douglas A. Anello, general counsel of the National Association of Broadcasters).

65. Copyright Law Revision - CATV, 126 (statement of Ernest W. Jennes, general counsel of the Association of Maximum Service Telecasters, Inc.).

66. Copyright Law Revision - CATV, 169 (joint statement of Arthur B. Krim, president of United Artists Corp., and John Sinn, president of United Artists Television, Inc.).

67. Copyright Law Revision - CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild).

68. Copyright Law Revision - CATV, 216 (statement of Edwin M. Zimmerman, acting assistant attorney general).

69. See, for example, National Music Publisher's Association, The Engine of Free Expression: Copyright on the Internet - The Myth of Free Information, available at link #13. “The threat of piracy”the use of someone else's creative work without permission or compensation - has grown with the Internet."

70. See IFPI (International Federation of the Phonographic Industry), The Recording Industry Commercial Piracy Report 2003, July 2003, available at link #14. See also Ben Hunt, “Companies Warned on Music Piracy Risk,” Financial Times, 14 February 2003, 11.

71. See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 10-13, 209. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement obligates member nations to create administrative and enforcement mechanisms for intellectual property rights, a costly proposition for developing countries. Additionally, patent rights may lead to higher prices for staple industries such as agriculture. Critics of TRIPS question the disparity between burdens imposed upon developing countries and benefits conferred to industrialized nations. TRIPS does permit governments to use patents for public, noncommercial uses without first obtaining the patent holder's permission. Developing nations may be able to use this to gain the benefits of foreign patents at lower prices. This is a promising strategy for developing nations within the TRIPS framework.

72. For an analysis of the economic impact of copying technology, see Stan Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), 144-90. “In some instances ... the impact of piracy on the copyright holder's ability to appropriate the value of the work will be negligible. One obvious instance is the case where the individual engaging in pirating would not have purchased an original even if pirating were not an option.” Ibid., 149.

73. Bach v. Longman, 98 Eng. Rep. 1274 (1777).

74. See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (New York: HarperBusiness, 2000). Professor Christensen examines why companies that give rise to and dominate a product area are frequently unable to come up with the most creative, paradigm-shifting uses for their own products. This job usually falls to outside innovators, who reassemble existing technology in inventive ways. For a discussion of Christensen's ideas, see Lawrence Lessig, Future, 89-92, 139.

75. See Carolyn Lochhead, “Silicon Valley Dream, Hollywood Nightmare,” San Francisco Chronicle, 24 September 2002, A1; “Rock 'n' Roll Suicide,” New Scientist, 6 July 2002, 42; Benny Evangelista, “Napster Names CEO, Secures New Financing,” San Francisco Chronicle, 23 May 2003, C1; “Napster's Wake-Up Call,” Economist, 24 June 2000, 23; John Naughton, “Hollywood at War with the Internet” (London) Times, 26 July 2002, 18.

76. See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution (September 2002), reporting that 28 percent of Americans aged twelve and older have downloaded music off of the Internet and 30 percent have listened to digital music files stored on their computers.

77. Amy Harmon, “Industry Offers a Carrot in Online Music Fight,” New York Times, 6 June 2003, A1.

78. See Liebowitz, Rethinking the Network Economy, 148-49.

79. See Cap Gemini Ernst & Young, Technology Evolution and the Music Industry's Business Model Crisis (2003), 3. This report describes the music industry's effort to stigmatize the budding practice of cassette taping in the 1970s, including an advertising campaign featuring a cassette-shape skull and the caption “Home taping is killing music.”
At the time digital audio tape became a threat, the Office of Technical Assessment conducted a survey of consumer behavior. In 1988, 40 percent of consumers older than ten had taped music to a cassette format. U.S. Congress, Office of Technology Assessment, Copyright and Home Copying: Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October 1989), 145-56.

80. U.S. Congress, Copyright and Home Copying, 4.

81. See Recording Industry Association of America, 2002 Yearend Statistics, available at link #15. A later report indicates even greater losses. See Recording Industry Association of America, Some Facts About Music Piracy, 25 June 2003, available at link #16: “In the past four years, unit shipments of recorded music have fallen by 26 percent from 1.16 billion units in 1999 to 860 million units in 2002 in the United States (based on units shipped). In terms of sales, revenues are down 14 percent, from $14.6 billion in 1999 to $12.6 billion last year (based on U.S. dollar value of shipments). The music industry worldwide has gone from a $39 billion industry in 2000 down to a $32 billion industry in 2002 (based on U.S. dollar value of shipments).”

82. Jane Black, “Big Music's Broken Record,” BusinessWeek online, 13 February 2003, available at link #17.

83. Ibid.

84. By one estimate, 75 percent of the music released by the major labels is no longer in print. See Online Entertainment and Copyright Law - Coming Soon to a Digital Device Near You: Hearing Before the Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared statement of the Future of Music Coalition), available at link #18.

85. While there are not good estimates of the number of used record stores in existence, in 2002, there were 7,198 used book dealers in the United States, an increase of 20 percent since 1993. See Book Hunter Press, The Quiet Revolution: The Expansion of the Used Book Market (2002), available at link #19. Used records accounted for $260 million in sales in 2002. See National Association of Recording Merchandisers, “2002 Annual Survey Results,” available at link #20.

86. See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at link #21. For an account of the litigation and its toll on Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn Fanning's Napster (New York: Crown Business, 2003), 269-82.

87. Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture Association of America, Inc.).

88. Copyright Infringements (Audio and Video Recorders), 475.

89. Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, 438 (C.D. Cal., 1979).

90. Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti).

91. Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir. 1981).

92. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).

93. These are the most important instances in our history, but there are other cases as well. The technology of digital audio tape (DAT), for example, was regulated by Congress to minimize the risk of piracy. The remedy Congress imposed did burden DAT producers, by taxing tape sales and controlling the technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not eliminate the opportunity for free riding in the sense I've described. See Lessig, Future, 71. See also Picker, “From Edison to the Broadcast Flag,” University of Chicago Law Review 70 (2003): 293-96.

94. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984).

95. John Schwartz, “New Economy: The Attack on Peer-to-Peer Software Echoes Past Efforts,” New York Times, 22 September 2003, C3.

96. Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333-34.

97. As the legal realists taught American law, all property rights are intangible. A property right is simply a right that an individual has against the world to do or not do certain things that may or may not attach to a physical object. The right itself is intangible, even if the object to which it is (metaphorically) attached is tangible. See Adam Mossoff, “What Is Property? Putting the Pieces Back Together,” Arizona Law Review 45 (2003): 373, 429 n. 241.

98. Jacob Tonson is typically remembered for his associations with prominent eighteenth-century literary figures, especially John Dryden, and for his handsome “definitive editions” of classic works. In addition to Romeo and Juliet, he published an astonishing array of works that still remain at the heart of the English canon, including collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See Keith Walker, “Jacob Tonson, Bookseller,” American Scholar 61:3 (1992): 424-31.

99. Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968), 151-52.

100. As Siva Vaidhyanathan nicely argues, it is erroneous to call this a “copyright law.” See Vaidhyanathan, Copyrights and Copywrongs, 40.

101. Philip Wittenberg, The Protection and Marketing of Literary Property (New York: J. Messner, Inc., 1937), 31.

102. A Letter to a Member of Parliament concerning the Bill now depending in the House of Commons, for making more effectual an Act in the Eighth Year of the Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618).

103. Lyman Ray Patterson, “Free Speech, Copyright, and Fair Use,” Vanderbilt Law Review 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37-48.

104. For a compelling account, see David Saunders, Authorship and Copyright (London: Routledge, 1992), 62-69.

105. Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), 92.

106. Ibid., 93.

107. Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting Borwell).

108. Howard B. Abrams, “The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright,” Wayne Law Review 29 (1983): 1152.

109. Ibid., 1156.

110. Rose, 97.

111. Ibid.

112. For an excellent argument that such use is “fair use,” but that lawyers don't permit recognition that it is “fair use,” see Richard A. Posner with William F. Patry, “Fair Use and Statutory Reform in the Wake of Eldred” (draft on file with author), University of Chicago Law School, 5 August 2003.

113. Technically, the rights that Alben had to clear were mainly those of publicity“rights an artist has to control the commercial exploitation of his image. But these rights, too, burden ”Rip, Mix, Burn" creativity, as this chapter evinces.

114. U.S. Department of Commerce Office of Acquisition Management, Seven Steps to Performance-Based Services Acquisition, available at link #22.

115. The temptations remain, however. Brewster Kahle reports that the White House changes its own press releases without notice. A May 13, 2003, press release stated, “Combat Operations in Iraq Have Ended.” That was later changed, without notice, to “Major Combat Operations in Iraq Have Ended.” E-mail from Brewster Kahle, 1 December 2003.

116. Doug Herrick, “Toward a National Film Collection: Motion Pictures at the Library of Congress,” Film Library Quarterly 13 nos. 2-3 (1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film Preservation in the United States (Jefferson, N.C.: McFarland & Co., 1992), 36.

117. Dave Barns, “Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business,” Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, “The First Sale Doctrine in the Era of Digital Networks,” Boston College Law Review 44 (2003): 593 n. 51.

118. Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary of the House of Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti).

119. Lawyers speak of “property” not as an absolute thing, but as a bundle of rights that are sometimes associated with a particular object. Thus, my “property right” to my car gives me the right to exclusive use, but not the right to drive at 150 miles an hour. For the best effort to connect the ordinary meaning of “property” to “lawyer talk,” see Bruce Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977), 26-27.

120. By describing the way law affects the other three modalities, I don't mean to suggest that the other three don't affect law. Obviously, they do. Law's only distinction is that it alone speaks as if it has a right self-consciously to change the other three. The right of the other three is more timidly expressed. See Lawrence Lessig, Code: And Other Laws of Cyberspace (New York: Basic Books, 1999): 90-95; Lawrence Lessig, “The New Chicago School,” Journal of Legal Studies, June 1998.

121. Some people object to this way of talking about “liberty.” They object because their focus when considering the constraints that exist at any particular moment are constraints imposed exclusively by the government. For instance, if a storm destroys a bridge, these people think it is meaningless to say that one's liberty has been restrained. A bridge has washed out, and it's harder to get from one place to another. To talk about this as a loss of freedom, they say, is to confuse the stuff of politics with the vagaries of ordinary life. I don't mean to deny the value in this narrower view, which depends upon the context of the inquiry. I do, however, mean to argue against any insistence that this narrower view is the only proper view of liberty. As I argued in Code, we come from a long tradition of political thought with a broader focus than the narrow question of what the government did when. John Stuart Mill defended freedom of speech, for example, from the tyranny of narrow minds, not from the fear of government prosecution; John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. John R. Commons famously defended the economic freedom of labor from constraints imposed by the market; John R. Commons, “The Right to Work,” in Malcom Rutherford and Warren J. Samuels, eds., John R. Commons: Selected Essays (London: Routledge: 1997), 62. The Americans with Disabilities Act increases the liberty of people with physical disabilities by changing the architecture of certain public places, thereby making access to those places easier; 42 United States Code, section 12101 (2000). Each of these interventions to change existing conditions changes the liberty of a particular group. The effect of those interventions should be accounted for in order to understand the effective liberty that each of these groups might face.

122. See Geoffrey Smith, “Film vs. Digital: Can Kodak Build a Bridge?” BusinessWeek online, 2 August 1999, available at link #23. For a more recent analysis of Kodak's place in the market, see Chana R. Schoenberger, “Can Kodak Make Up for Lost Moments?”, 6 October 2003, available at link #24.

123. Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170-71.

124. See, for example, James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87.

125. William W. Crosskey, Politics and the Constitution in the History of the United States (London: Cambridge University Press, 1953), vol. 1, 485-86: “extinguish[ing], by plain implication of ”the supreme Law of the Land,“ the perpetual rights which authors had, or were supposed by some to have, under the Common Law” (emphasis added).

126. Although 13,000 titles were published in the United States from 1790 to 1799, only 556 copyright registrations were filed; John Tebbel, A History of Book Publishing in the United States, vol. 1, The Creation of an Industry, 1630- 1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only twelve were copyrighted under the 1790 act; William J. Maher, Copyright Term, Retrospective Extension and the Copyright Law of 1790 in Historical Context, 7-10 (2002), available at link #25. Thus, the overwhelming majority of works fell immediately into the public domain. Even those works that were copyrighted fell into the public domain quickly, because the term of copyright was short. The initial term of copyright was fourteen years, with the option of renewal for an additional fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124.

127. Few copyright holders ever chose to renew their copyrights. For instance, of the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, “Study No. 31: Renewal of Copyright,” Studies on Copyright, vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more recent and comprehensive analysis, see William M. Landes and Richard A. Posner, “Indefinitely Renewable Copyright,” University of Chicago Law Review 70 (2003): 471, 498-501, and accompanying figures.

128. See Ringer, ch. 9, n. 2.

129. These statistics are understated. Between the years 1910 and 1962 (the first year the renewal term was extended), the average term was never more than thirty-two years, and averaged thirty years. See Landes and Posner, “Indefinitely Renewable Copyright,” loc. cit.

130. See Thomas Bender and David Sampliner, “Poets, Pirates, and the Creation of American Literature,” 29 New York University Journal of International Law and Politics 255 (1997), and James Gilraeth, ed., Federal Copyright Records, 1790- 1800 (U.S. G.P.O., 1987).

131. Jonathan Zittrain, “The Copyright Cage,” Legal Affairs, July/August 2003, available at link #26.

132. Professor Rubenfeld has presented a powerful constitutional argument about the difference that copyright law should draw (from the perspective of the First Amendment) between mere “copies” and derivative works. See Jed Rubenfeld, “The Freedom of Imagination: Copyright's Constitutionality,” Yale Law Journal 112 (2002): 1-60 (see especially pp. 53-59).

133. This is a simplification of the law, but not much of one. The law certainly regulates more than “copies” - a public performance of a copyrighted song, for example, is regulated even though performance per se doesn't make a copy; 17 United States Code, section 106(4). And it certainly sometimes doesn't regulate a “copy”; 17 United States Code, section 112(a). But the presumption under the existing law (which regulates “copies;” 17 United States Code, section 102) is that if there is a copy, there is a right.

134. Thus, my argument is not that in each place that copyright law extends, we should repeal it. It is instead that we should have a good argument for its extending where it does, and should not determine its reach on the basis of arbitrary and automatic changes caused by technology.

135. I don't mean “nature” in the sense that it couldn't be different, but rather that its present instantiation entails a copy. Optical networks need not make copies of content they transmit, and a digital network could be designed to delete anything it copies so that the same number of copies remain.

136. See David Lange, “Recognizing the Public Domain,” Law and Contemporary Problems 44 (1981): 172-73.

137. Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1-3.

138. In principle, a contract might impose a requirement on me. I might, for example, buy a book from you that includes a contract that says I will read it only three times, or that I promise to read it three times. But that obligation (and the limits for creating that obligation) would come from the contract, not from copyright law, and the obligations of contract would not necessarily pass to anyone who subsequently acquired the book.

139. See Pamela Samuelson, “Anticircumvention Rules: Threat to Science,” Science 293 (2001): 2028; Brendan I. Koerner, “Play Dead: Sony Muzzles the Techies Who Teach a Robot Dog New Tricks,” American Prospect, 1 January 2002; “Court Dismisses Computer Scientists' Challenge to DMCA,” Intellectual Property Litigation Reporter, 11 December 2001; Bill Holland, “Copyright Act Raising Free-Speech Concerns,” Billboard, 26 May 2001; Janelle Brown, “Is the RIAA Running Scared?”, 26 April 2001; Electronic Frontier Foundation, “Frequently Asked Questions about Felten and USENIX v. RIAA Legal Case,” available at link #27.

140. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the VCR. See James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of the VCR (New York: W. W. Norton, 1987), 270-71.

141. For an early and prescient analysis, see Rebecca Tushnet, “Legal Fictions, Copyright, Fan Fiction, and a New Common Law,” Loyola of Los Angeles Entertainment Law Journal 17 (1997): 651.

142. FCC Oversight: Hearing Before the Senate Commerce, Science and Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement of Senator John McCain).

143. Lynette Holloway, “Despite a Marketing Blitz, CD Sales Continue to Slide,” New York Times, 23 December 2002.

144. Molly Ivins, “Media Consolidation Must Be Stopped,” Charleston Gazette, 31 May 2003.

145. James Fallows, ”The Age of Murdoch," Atlantic Monthly (September 2003): 89.

146. Leonard Hill, “The Axis of Access,” remarks before Weidenbaum Center Forum, “Entertainment Economics: The Movie Industry,” St. Louis, Missouri, 3 April 2003 (transcript of prepared remarks available at link #28; for the Lear story, not included in the prepared remarks, see link #29).

147. NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media Ownership Before the Senate Commerce Committee, 108th Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union and the Consumer Federation of America), available at link #30. Kimmelman quotes Victoria Riskin, president of Writers Guild of America, West, in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003.

148. Ibid.

149. ”Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill Moyers, 25 April 2003, edited transcript available at link #31.

150. Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business School Press, 1997). Christensen acknowledges that the idea was first suggested by Dean Kim Clark. See Kim B. Clark, “The Interaction of Design Hierarchies and Market Concepts in Technological Evolution,” Research Policy 14 (1985): 235- 51. For a more recent study, see Richard Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are Built to Last Underperform the Market - and How to Successfully Transform Them (New York: Currency/Doubleday, 2001).

151. The Marijuana Policy Project, in February 2003, sought to place ads that directly responded to the Nick and Norm series on stations within the Washington, D.C., area. Comcast rejected the ads as “against [their] policy.” The local NBC affiliate, WRC, rejected the ads without reviewing them. The local ABC affiliate, WJOA, originally agreed to run the ads and accepted payment to do so, but later decided not to run the ads and returned the collected fees. Interview with Neal Levine, 15 October 2003. These restrictions are, of course, not limited to drug policy. See, for example, Nat Ives, “On the Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV Networks,” New York Times, 13 March 2003, C4. Outside of election-related air time there is very little that the FCC or the courts are willing to do to even the playing field. For a general overview, see Rhonda Brown, “Ad Hoc Access: The Regulation of Editorial Advertising on Television and Radio,” Yale Law and Policy Review 6 (1988): 449-79, and for a more recent summary of the stance of the FCC and the courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d 872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as the networks. In a recent example from San Francisco, the San Francisco transit authority rejected an ad that criticized its Muni diesel buses. Phillip Matier and Andrew Ross, “Antidiesel Group Fuming After Muni Rejects Ad,”, 16 June 2003, available at link #32. The ground was that the criticism was “too controversial.”

152. Siva Vaidhyanathan captures a similar point in his “four surrenders” of copyright law in the digital age. See Vaidhyanathan, 159-60.

153. It was the single most important contribution of the legal realist movement to demonstrate that all property rights are always crafted to balance public and private interests. See Thomas C. Grey, “The Disintegration of Property,” in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, eds. (New York: New York University Press, 1980).

154. H. G. Wells, “The Country of the Blind” (1904, 1911). See H. G. Wells, The Country of the Blind and Other Stories, Michael Sherborne, ed. (New York: Oxford University Press, 1996).

155. For an excellent summary, see the report prepared by GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School, “Copy- right and Digital Media in a Post-Napster World,” 27 June 2003, available at link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill that would treat unauthorized on-line copying as a felony offense with punishments ranging as high as five years imprisonment; see Jon Healey, “House Bill Aims to Up Stakes on Piracy,” Los Angeles Times, 17 July 2003, available at link #34. Civil penalties are currently set at $150,000 per copied song. For a recent (and unsuccessful) legal challenge to the RIAA's demand that an ISP reveal the identity of a user accused of sharing more than 600 songs through a family computer, see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F. Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as high as $90 million. Such astronomical figures furnish the RIAA with a powerful arsenal in its prosecution of file sharers. Settlements ranging from $12,000 to $17,500 for four students accused of heavy file sharing on university networks must have seemed a mere pittance next to the $98 billion the RIAA could seek should the matter proceed to court. See Elizabeth Young, “Downloading Could Lead to Fines,”, 26 August 2003, available at link #35. For an example of the RIAA's targeting of student file sharing, and of the subpoenas issued to universities to reveal student file-sharer identities, see James Collins, “RIAA Steps Up Bid to Force BC, MIT to Name Students,” Boston Globe, 8 August 2003, D3, available at link #36.

156. WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital Entertainment on the Internet and Other Media: Hearing Before the Subcommittee on Telecommunications, Trade, and Consumer Protection, House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, vice president, Global Public Policy and Standards,, available in LEXIS, Federal Document Clearing House Congressional Testimony File.

157. See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of the settlement, see MCI press release, “MCI Wins U.S. District Court Approval for SEC Settlement” (7 July 2003), available at link #37.

158. The bill, modeled after California's tort reform model, was passed in the House of Representatives but defeated in a Senate vote in July 2003. For an overview, see Tanya Albert, “Measure Stalls in Senate: 'We'll Be Back,' Say Tort Reformers,”, 28 July 2003, available at link #38, and “Senate Turns Back Malpractice Caps,”, 9 July 2003, available at link #39. President Bush has continued to urge tort reform in recent months.

159. See Danit Lidor, “Artists Just Wanna Be Free,” Wired, 7 July 2003, available at link #40. For an overview of the exhibition, see link #41.

160. See Joseph Menn, “Universal, EMI Sue Napster Investor,” Los Angeles Times, 23 April 2003. For a parallel argument about the effects on innovation in the distribution of music, see Janelle Brown, “The Music Revolution Will Not Be Digitized,”, 1 June 2001, available at link #42. See also Jon Healey, “Online Music Services Besieged,” Los Angeles Times, 28 May 2001.

161. Rafe Needleman, ”Driving in Cars with MP3s," Business 2.0, 16 June 2003, available at link #43. I am grateful to Dr. Mohammad Al-Ubaydli for this example.

162. “Copyright and Digital Media in a Post-Napster World,” GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School (2003), 33-35, available at link #44.

163. GartnerG2, 26-27.

164. See David McGuire, “Tech Execs Square Off Over Piracy,” Newsbytes, 28 February 2002 (Entertainment).

165. Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001).

166. The only circuit court exception is found in Recording Industry Association of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that makers of a portable MP3 player were not liable for contributory copyright infringement for a device that is unable to record or redistribute music (a device whose only copying function is to render portable a music file already stored on a user's hard drive). At the district court level, the only exception is found in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D. Cal., 2003), where the court found the link between the distributor and any given user's conduct too attenuated to make the distributor liable for contributory or vicarious infringement liability.

167. For example, in July 2002, Representative Howard Berman introduced the Peer- to-Peer Piracy Prevention Act (H.R. 5211), which would immunize copyright holders from liability for damage done to computers when the copyright holders use technology to stop copyright infringement. In August 2002, Representative Billy Tauzin introduced a bill to mandate that technologies capable of rebroadcasting digital copies of films broadcast on TV (i.e., computers) respect a “broadcast flag” that would disable copying of that content. And in March of the same year, Senator Fritz Hollings introduced the Consumer Broadband and Digital Television Promotion Act, which mandated copyright protection technology in all digital media devices. See GartnerG2, “Copyright and Digital Media in a Post-Napster World,” 27 June 2003, 33-34, available at link #44.

168. Lessing, 239.

169. Ibid., 229.

170. This example was derived from fees set by the original Copyright Arbitration Royalty Panel (CARP) proceedings, and is drawn from an example offered by Professor William Fisher. Conference Proceedings, iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain submitted testimony in the CARP proceeding that was ultimately rejected. See Jonathan Zittrain, Digital Performance Right in Sound Recordings and Ephemeral Recordings, Docket No. 2000- 9, CARP DTRA 1 and 2, available at link #45. For an excellent analysis making a similar point, see Randal C. Picker, “Copyright as Entry Policy: The Case of Digital Distribution,” Antitrust Bulletin (Summer/Fall 2002): 461: “This was not confusion, these are just old- fashioned entry barriers. Analog radio stations are protected from digital entrants, reducing entry in radio and diversity. Yes, this is done in the name of getting royalties to copyright holders, but, absent the play of powerful interests, that could have been done in a media-neutral way.”

171. Mike Graziano and Lee Rainie, “The Music Downloading Deluge,” Pew Internet and American Life Project (24 April 2001), available at link #46. The Pew Internet and American Life Project reported that 37 million Americans had downloaded music files from the Internet by early 2001.

172. Alex Pham, “The Labels Strike Back: N.Y. Girl Settles RIAA Case,” Los Angeles Times, 10 September 2003, Business.

173. Jeffrey A. Miron and Jeffrey Zwiebel, “Alcohol Consumption During Prohibition,” American Economic Review 81, no. 2 (1991): 242.

174. National Drug Control Policy: Hearing Before the House Government Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John P. Walters, director of National Drug Control Policy).

175. See James Andreoni, Brian Erard, and Jonathon Feinstein, “Tax Compliance,” Journal of Economic Literature 36 (1998): 818 (survey of compliance literature).

176. See Frank Ahrens, “RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,” Washington Post, 10 September 2003, E1; Chris Cobbs, “Worried Parents Pull Plug on File 'Stealing'; With the Music Industry Cracking Down on File Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued,” Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham, “Recording Industry Sues Parents,” USA Today, 15 September 2003, 4D; John Schwartz, “She Says She's No Music Pirate. No Snoop Fan, Either,” New York Times, 25 September 2003, C1; Margo Varadi, “Is Brianna a Criminal?” Toronto Star, 18 September 2003, P7.

177. See “Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some Methods Used,”, available at link #47.

178. See Jeff Adler, “Cambridge: On Campus, Pirates Are Not Penitent,” Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, “Four Students Sued over Music Sites; Industry Group Targets File Sharing at Colleges,” Washington Post, 4 April 2003, E1; Elizabeth Armstrong, “Students 'Rip, Mix, Burn' at Their Own Risk,” Christian Science Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, “Music Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over; Lawsuit Possible,” Chicago Tribune, 16 July 2003, 1C; Beth Cox, “RIAA Trains Antipiracy Guns on Universities,” Internet News, 30 January 2003, available at link #48; Benny Evangelista, “Download Warning 101: Freshman Orientation This Fall to Include Record Industry Warnings Against File Sharing,” San Francisco Chronicle, 11 August 2003, E11; “Raid, Letters Are Weapons at Universities,” USA Today, 26 September 2000, 3D.

179. There's a parallel here with pornography that is a bit hard to describe, but it's a strong one. One phenomenon that the Internet created was a world of noncommercial pornographers - people who were distributing porn but were not making money directly or indirectly from that distribution. Such a class didn't exist before the Internet came into being because the costs of distributing porn were so high. Yet this new class of distributors got special attention in the Supreme Court, when the Court struck down the Communications Decency Act of 1996. It was partly because of the burden on noncommercial speakers that the statute was found to exceed Congress's power. The same point could have been made about noncommercial publishers after the advent of the Internet. The Eric Eldreds of the world before the Internet were extremely few. Yet one would think it at least as important to protect the Eldreds of the world as to protect noncommercial pornographers.

180. The full text is: “Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress,” 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).

181. Associated Press, “Disney Lobbying for Copyright Extension No Mickey Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,” Chicago Tribune, 17 October 1998, 22.

182. See Nick Brown, “Fair Use No More?: Copyright in the Information Age,” available at link #49.

183. Alan K. Ota, “Disney in Washington: The Mouse That Roars,” Congressional Quarterly This Week, 8 August 1990, available at link #50.

184. United States v. Lopez, 514 U.S. 549, 564 (1995).

185. United States v. Morrison, 529 U.S. 598 (2000).

186. If it is a principle about enumerated powers, then the principle carries from one enumerated power to another. The animating point in the context of the Commerce Clause was that the interpretation offered by the government would allow the government unending power to regulate commerce - the limitation to interstate commerce notwithstanding. The same point is true in the context of the Copyright Clause. Here, too, the government's interpretation would allow the government unending power to regulate copyrights - the limitation to “limited times” notwithstanding.

187. Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), n.10, available at link #51.

188. The figure of 2 percent is an extrapolation from the study by the Congressional Research Service, in light of the estimated renewal ranges. See Brief of Petitioners, Eldred v. Ashcroft, 7, available at link #52.

189. See David G. Savage, “High Court Scene of Showdown on Copyright Law,” Los Angeles Times, 6 October 2002; David Streitfeld, “Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking Down Copyright Extension,” Orlando Sentinel Tribune, 9 October 2002.

190. Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet Archive, Eldred v. Ashcroft, available at link #53.

191. Jason Schultz, “The Myth of the 1976 Copyright 'Chaos' Theory,” 20 December 2002, available at link #54.

192. Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), 19.

193. Dinitia Smith, “Immortal Words, Immortal Royalties? Even Mickey Mouse Joins the Fray,” New York Times, 28 March 1998, B7.

194. Until the 1908 Berlin Act of the Berne Convention, national copyright legislation sometimes made protection depend upon compliance with formalities such as registration, deposit, and affixation of notice of the author's claim of copyright. However, starting with the 1908 act, every text of the Convention has provided that “the enjoyment and the exercise” of rights guaranteed by the Convention “shall not be subject to any formality.” The prohibition against formalities is presently embodied in Article 5(2) of the Paris Text of the Berne Convention. Many countries continue to impose some form of deposit or registration requirement, albeit not as a condition of copyright. French law, for example, requires the deposit of copies of works in national repositories, principally the National Museum. Copies of books published in the United Kingdom must be deposited in the British Library. The German Copyright Act provides for a Registrar of Authors where the author's true name can be filed in the case of anonymous or pseudonymous works. Paul Goldstein, International Intellectual Property Law, Cases and Materials (New York: Foundation Press, 2001), 153-54.

195. Commission on Intellectual Property Rights, “Final Report: Integrating Intellectual Property Rights and Development Policy” (London, 2002), available at link #55. According to a World Health Organization press release issued 9 July 2002, only 230,000 of the 6 million who need drugs in the developing world receive them - and half of them are in Brazuil.

196. See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 37.

197. International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization (Washington, D.C., 2000), 14, available at link #56. For a firsthand account of the struggle over South Africa, see Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150-57 (statement of James Love).

198. International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization (Washington, D.C., 2000), 15.

199. See Sabin Russell, “New Crusade to Lower AIDS Drug Costs: Africa's Needs at Odds with Firms' Profit Motive,” San Francisco Chronicle, 24 May 1999, A1, available at link #57 (“compulsory licenses and gray markets pose a threat to the entire system of intellectual property protection”); Robert Weissman, “AIDS and Developing Countries: Democratizing Access to Essential Medicines,” Foreign Policy in Focus 4:23 (August 1999), available at link #58 (describing U.S. policy); John A. Harrelson, “TRIPS, Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property Rights and Compassion, a Synopsis,” Widener Law Symposium Journal (Spring 2001): 175.

200. Jonathan Krim, “The Quiet War over Open-Source,” Washington Post, 21 August 2003, E1, available at link #59; William New, “Global Group's Shift on 'Open Source' Meeting Spurs Stir,” National Journal's Technology Daily, 19 August 2003, available at link #60; William New, “U.S. Official Opposes 'Open Source' Talks at WIPO,” National Journal's Technology Daily, 19 August 2003, available at link #61.

201. I should disclose that I was one of the people who asked WIPO for the meeting.

202. Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with “open source” software or software in the public domain. Microsoft's principal opposition is to “free software” licensed under a “copyleft” license, meaning a license that requires the licensee to adopt the same terms on any derivative work. See Bradford L. Smith, “The Future of Software: Enabling the Marketplace to Decide,” Government Policy Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, American Enterprise Institute for Public Policy Research, 2002), 69, available at link #62. See also Craig Mundie, Microsoft senior vice president, The Commercial Software Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63.

203. Krim, “The Quiet War over Open-Source,” available at link #64.

204. See Drahos with Braithwaite, Information Feudalism, 210-20.

205. John Borland, “RIAA Sues 261 File Swappers,” CNET, 8 September 2003, available at link #65; Paul R. La Monica, “Music Industry Sues Swappers,” CNN/Money, 8 September 2003, available at link #66; Soni Sangha and Phyllis Furman with Robert Gearty, “Sued for a Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,” New York Daily News, 9 September 2003, 3; Frank Ahrens, “RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,” Washington Post, 10 September 2003, E1; Katie Dean, “Schoolgirl Settles with RIAA,” Wired News, 10 September 2003, available at link #67.

206. Jon Wiederhorn, “Eminem Gets Sued ... by a Little Old Lady,”, 17 September 2003, available at link #68.

207. Kenji Hall, Associated Press, “Japanese Book May Be Inspiration for Dylan Songs,”, 9 July 2003, available at link #69.

208. “BBC Plans to Open Up Its Archive to the Public,” BBC press release, 24 August 2003, available at link #70.

209. “Creative Commons and Brazil,” Creative Commons Weblog, 6 August 2003, available at link #71.

210. See, for example, Marc Rotenberg, “Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get),” Stanford Technology Law Review 1 (2001): par. 6-18, available at link #72 (describing examples in which technology defines privacy policy). See also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs between technology and privacy).

211. Willful Infringement: A Report from the Front Lines of the Real Culture Wars (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre production, available at link #72.

212. The proposal I am advancing here would apply to American works only. Obviously, I believe it would be beneficial for the same idea to be adopted by other countries as well.

213. There would be a complication with derivative works that I have not solved here. In my view, the law of derivatives creates a more complicated system than is justified by the marginal incentive it creates.

214. “A Radical Rethink,” Economist, 366:8308 (25 January 2003): 15, available at link #74.

215. Department of Veterans Affairs, Veteran's Application for Compensation and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at link #75.

216. Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967), 32.

217. Ibid., 56.

218. Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stanford: Stanford University Press, 2003), 187-216.

219. See, for example, “Music Media Watch,” The J@pan Inc. Newsletter, 3 April 2002, available at link #76.

220. William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available at link #78. Professor Netanel has proposed a related idea that would exempt noncommercial sharing from the reach of copyright and would establish compensation to artists to balance any loss. See Neil Weinstock Netanel, “Impose a Noncommercial Use Levy to Allow Free P2P File Sharing,” available at link #79. For other proposals, see Lawrence Lessig, “Who's Holding Back Broadband?” Washington Post, 8 January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations Committee, 26 February 2002, available at link #80; Serguei Osokine, A Quick Case for Intellectual Property Use Fee (IPUF), 3 March 2002, available at link #81; Jefferson Graham, “Kazaa, Verizon Propose to Pay Artists Directly,” USA Today, 13 May 2002, available at link #82; Steven M. Cherry, “Getting Copyright Right,” IEEE Spectrum Online, 1 July 2002, available at link #83; Declan Mc-Cullagh, “Verizon's Copyright Campaign,” CNET, 27 August 2002, available at link #84. Fisher's proposal is very similar to Richard Stallman's proposal for DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly proportionally, though more popular artists would get more than the less popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85.

221. Lawrence Lessig, “Copyright's First Amendment” (Melville B. Nimmer Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069-70.

222. A good example is the work of Professor Stan Liebowitz. Liebowitz is to be commended for his careful review of data about infringement, leading him to question his own publicly stated position - twice. He initially predicted that downloading would substantially harm the industry. He then revised his view in light of the data, and he has since revised his view again. Compare Stan J. Liebowitz, Rethinking the Network Economy: The True Forces That Drive the Digital Marketplace (New York: Amacom, 2002), 173 (reviewing his original view but expressing skepticism) with Stan J. Liebowitz, “Will MP3s Annihilate the Record Industry?” working paper, June 2003, available at link #86. Liebowitz's careful analysis is extremely valuable in estimating the effect of file-sharing technology. In my view, however, he underestimates the costs of the legal system. See, for example, Rethinking, 174-76.

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