1. James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” Law and Contemporary Problems 66 (Winter–Spring 2003): 33–74.
2. Arti Rai and James Boyle, “Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons,” PLoS Biology 5 (2007): 389–393, available at http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050058&ct=1.
3. James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87–116, available at http://www.law.duke.edu/journals/cite.php?47+Duke+L.+J.+87.
4. “Cultural Environmentalism @ 10,” Law and Contemporary Problems 70 (Spring 2007): 1–210, available at http://www.law.duke.edu/ce10.
5. U.S. Patent No. 6,004,596 (filed Dec. 21, 1999), available at http://patft.uspto.gov/netahtml/PTO/srchnum.htm (search “6,004,596”). As is required, the patent refers extensively to the “prior art”—in this case prior art in sealing sandwiches. It also refers to the classic scientific reference work “50 Great Sandwiches by Carole Handslip 81–84, 86, 95, 1994.” Is this patent ridiculous? Yes, clearly so. But not so ridiculous that its eventual owner, Smucker’s, refrained from sending out cease and desist letters to competing sandwich manufacturers, and, when one of those competitors successfully requested the Patent and Trademark Office to reexamine the patent, from appealing the resulting rejection all the way through the Board of Patent Appeals and Interferences to the Court of Appeals for the Federal Circuit. The judges there were less than sympathetic at oral argument. “Judge Arthur Gajarsa noted that his wife often squeezes together the sides of their child’s peanut butter and jelly sandwiches to keep the filling from oozing out. ‘I’m afraid she might be infringing on your patent!’ he said.” The court found that the PTO got it right the second time around and agreed with the Board of Patent Appeals in rejecting the patent. Portfolio Media, “Peanut Butter and Jelly Case Reaches Federal Circuit,” IPLaw360 (April 7, 2005), available at http://www.iplawbulletin.com. For the Board of Patent Appeals’s learned discussion of whether the patent was anticipated by such devices as the “Tartmaster,” complete with disputes over expert testimony on the subjects of cutting, crimping, and “leaking outwardly” and painstaking inquiries about what would seem obvious to a “person having ordinary skill in the art of sandwich making,” see http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd031754 and http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd031775. One could conclude from this case that the system works (eventually). Or one could ask who cares about silly patents like this—even if they are used in an attempt to undermine competition? The larger point, however, is that an initial process of examination that finds a crimped peanut butter and jelly sandwich is “novel and nonobvious” is hardly going to do better when more complex technologies are at stake. I take that point up in Chapter 2 with reference to Thomas Jefferson’s discussion of patents and in Chapter 7 on synthetic biology. For a more general discussion of the flaws of the patent system see Adam B. Jaffe and Josh Lerner, Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation, and Progress and What To Do About It (Princeton, N.J.: Princeton University Press, 2004).
6. These types of patents are discussed in Chapter 7.
7. San Francisco Arts & Athletics, Inc., et al. v. United States Olympic Committee, 483 U.S. 522 (1987). See also James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 145–148.
8. SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).
9. See Samuel E. Trosow, “Sui Generis Database Legislation: A Critical Analysis,” Yale Journal of Law & Technology 7 (2005): 534–642; Miriam Bitton, “Trends in Protection for Informational Works under Copyright Law during the 19th and 20th Centuries,” Michigan Telecommunications & Technology Law Review 13 (2006): 115–176.
10. The Digital Millennium Copyright Act is discussed at length in Chapter 5. “Digital fences” include password protection, encryption, and forms of digital rights management.
11. Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. , 604 F.2d 200 (2nd Cir. 1979).
12. “In the forests of Panama lives a Guyami Indian woman who is unusually resistant to a virus that causes leukemia. She was discovered by scientific ‘gene hunters,’ engaged in seeking out native peoples whose lives and cultures are threatened with extinction. Though they provided basic medical care, the hunters did not set out to preserve the people, only their genes—which can be kept in cultures of ‘immortalized’ cells grown in the laboratory. In 1993, the U.S. Department of Commerce tried to patent the Guyami woman’s genes—and only abandoned the attempt in the face of furious protest from representatives of indigenous peoples.” Tom Wilkie, “Whose Gene Is It Anyway?” Independent (London, November 19, 1995), 75.
13. See Christina Rhee, “Urantia Foundation v. Maaherra,” Berkeley Technology Law Journal 13 (1998): 69–81.
14. See James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard Journal of Law & Technology 10 (1996): 83–94.
15. Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248.
16. International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting); 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.
17. 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.
18. See Jack Hirshleifer, “The Private and Social Value of Information and the Reward to Inventive Activity,” American Economic Review 61 (1971): 561–574.
19. 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.]
20. Felix S. Cohen, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 817.
21. 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).
22. 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.html.
23. 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.
24. 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.
25. Bruce Sterling, Heavy Weather (New York: Bantam, 1994): 73.
26. 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).
27. 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?”
28. Letter to McPherson, 333.
29. See Letter from Thomas Jefferson to Abraham Baldwin (April 14, 1802), in Writings of Thomas Jefferson, vol. XIX, 128–129.
30. 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.
31. 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.
32. Letter to McPherson, 328.
33. 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.
34. Letter to McPherson, 333.
35. Ibid., 333–334.
36. Ibid.
37. Ibid., 335.
38. See ibid., 333–335.
39. 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).
40. 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).
41. Ibid., 199.
42. Ibid., 198–199.
43. Graham v. John Deere, 383 U.S. 1, 7–11 (1966).
44. 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.
45. 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.”
46. 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.
47. “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.
48. 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.”
49. Macaulay Speech, 200–201.
50. Ibid., 201.
51. 17 U.S.C. § 304 (1998).
52. Eldred v. Ashcroft, 537 U.S. 186 (2003).
53. See Brief for Hal Roach Studios and Michael Agee as Amici Curiae Supporting Petitioners, Eldred v. Ashcroft.
54. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998).
55. 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.
56. U.S. Constitution, art. I, § 8, cl. 8.
57. “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.
58. Ibid., 205.
59. Ibid., 206.
60. Margaret Mitchell, Gone With the Wind (New York: Macmillan, 1936).
61. 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=1390366800&en=9eb265b1f26e8b14&ei=5007∂ner=USERLAND.
62. Yochai Benkler, “Through the Looking Glass: Alice and Constitutional Foundations of the Public Domain,” Law and Contemporary Problems 66 (Winter–Spring 2003): 173.
63. SunTrust Bank v. Houghton Mifflin Co. , 268 F.3d 1257 (11th Cir. 2001).
64. See note 19 of this chapter for a discussion of the most recent and thoughtful challenge to this claim.
65. 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.
66. 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.
67. Quoted in Hesse, Publishing and Cultural Politics, 100.
68. 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.
69. 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.
70. 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.”
71. 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?”
72. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 55–57.
73. 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?
74. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, N.J.: Princeton University Press, 1957), 96–97.
75. Mark Helprin, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” New York Times editorial (May 20, 2007), A12.
76. Catherine Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999), 46–48.
77. Macaulay Speech, 256.
78. 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, “Why the First Amendment Cannot Dictate Copyright Policy,” available at http://lawreview.law.pitt.edu/issues/65/65.2/McGowan.pdf [Ed. note: originally published as: David McGowan, “First Amendment & Copyright Policy,” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=460280; the new link is to the final published version of the article]; Randal Picker, “Copyright as Entry Policy: The Case of Digital Distribution,” Antitrust Bulletin 47 (2002): 423, 424.
79. Quoted in Fritz Machlup and Edith Penrose, “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10, no. 1 (1950): 4, n8.
80. 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.
81. “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.
82. 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.
83. 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.
85. 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).
86. Thomas More, Utopia (New York: W. J. Black, 1947), 32.
87. Karl Polanyi, The 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.
88. See generally Lord Ernle, English Farming Past and Present, 6th ed. (Chicago: Quadrangle Books, 1961).
89. 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.
90. 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.”
91. 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.
92. 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).
93. 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.”
94. 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.
95. 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.
96. 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.
97. 793 P.2d 479, 488–497 (Cal. 1990).
98. Ibid., 493–494. One imagines Styrofoam coolers criss-crossing the country by FedEx in an orgy of communistic flesh-swapping.
99. Ibid., 493.
100. 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).
101. 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://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML [Ed. note: originally published as http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html, the link has been changed].
102. 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.
103. Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248.
104. 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.
105. The exceptions to this statement turn out to be fascinating. In the interest of brevity, however, I will ignore them entirely.
106. 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.
107. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (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.
108. Sanford J. Grossman and Joseph E. Stiglitz, “On the Impossibility of Informationally Efficient Markets,” American Economic Review 70 (1980): 404.
109. 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.
110. 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 (GoldenRice™): 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.
111. Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998): 698–701.
112. Int’l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).
113. 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.
114. 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).
115. Database Investment and Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); Collections of Information Antipiracy Act, S 2291, 105th Cong. (1998).
116. 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.
117. See Eisenberg, “Patenting the Human Genome”; Haas, “Wellcome Trust’s Disclosures.”
118. 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.
119. See Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001).
120. See James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard Journal of Law & Technology 10 (1996): 47–112.
121. American Geophysical Union v. Texaco, 37 F.3d 882 (2nd Cir. 1994).
122. Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000).
123. eBay, Inc. v. Bidder’s Edge, Inc. , 100 F. Supp. 2d 1058 (N.D. Cal. 2000).
124. 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.
125. 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).
126. Madey v. Duke Univ. , 307 F.3d 1351 (Fed. Cir. 2003), cert. denied, 539 U.S. 958 (2003).
127. “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.html. After a First Amendment challenge to the relevant provisions of the DMCA, the threats were withdrawn.
128. 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.
129. 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).
130. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5,17, 28, and 35 U.S.C.).
131. 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.
132. White Paper, 84.
133. “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).
134. “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.
135. Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560, 561) (1996).
136. Reno v. ACLU, 521 U.S. 844 (1997).
137. James Boyle, “Overregulating the Internet,” Washington Times (November 14, 1995), A17.
138. See James Boyle, “The One Thing Government Officials Can’t Do Is Threaten Their Critics,” Washington Times (March 6, 1996), A16.
139. “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.
140. 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).
141. See note 2 above.
142. Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as amended in scattered sections of 17 and 18 U.S.C.).
143. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered sections of 17 U.S.C.).
144. S 2291, 105th Cong. (1998).
145. Sony Corp. of America v. Universal City Studios, Inc. , 464 U.S. 417 (1984).
146. 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.
147. 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.
148. “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.
149. 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.
150. 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).
151. Sony 464 U.S. at 441 n. 21.
152. A&M Records, Inc. v. Napster, Inc. , 239 F.3d 1004 (9th Cir. 2001).
153. A&M Records v. Napster: C-SPAN Videotape 159534, Part 1 of 1 (October 2, 2000).
154. 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.
155. 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.
156. 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://bpp.wharton.upenn.edu/waldfogj/jle_piracy.pdf [Ed. note: originally published as http://www.law.upenn.edu/polk/dropbox/waldfogel.pdf, link has changed].
157. 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.
158. MGM Studios Inc. v. Grokster, Ltd. , 545 U.S. 913 (2005).
159. 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.
160. 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.
161. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.).
162. See Electronic Frontiers Foundation, “Unintended Consequences,” available at http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca.
163. See DVD Copy Control Association, “Frequently Asked Questions,” available at http://www.dvdcca.org/faq.html.
164. Thomas Mennecke, “Slyck.com Interviews Jon Lech Johansen” (April 4, 2005), available at http://www.slyck.com/news.php?story=733.
165. 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.
166. Abraham Lincoln, Lecture on Discoveries and Inventions (April 6, 1858), available at http://showcase.netins.net/web/creative/lincoln/speeches/discoveries.htm.
167. 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)).
168. 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.
169. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 304–5 (S.D.N.Y. 2000).
170. 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)).
171. Ibid., 331–332.
172. 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.
173. 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.
174. Eldred v. Ashcroft, 537 U.S. 186 (2003) at 221 (citing Harper & Row, 471 U.S. at 560).
175. Rob Pegoraro, “RealPlayer’s iPod-Compatible Update ‘Stunned’ Apple,” Washington Post (August 8, 2004), F6.
176. Lexmark, Int’l v. Static Control Companies, Inc. , 387 F.3d 522 (6th Cir. 2004).
177. 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.
178. 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.
179. John Leland, “Art Born of Outrage in the Internet Age,” New York Times (September 25, 2005), D3.
180. Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story (Cambridge, Mass.: Da Capo Press, 1978), 86.
181. 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.
182. Forever Ray, available at http://www.raycharles.com/the_man_biography.html.
183. 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.”
184. 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.
185. See Lydon, Ray Charles, 419.
186. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996).
187. 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.
188. Great American Country, “Ray Charles Biography,” available at http://www.gactv.com/gac/ar_artists_a-z/article/0,,GAC_26071_4888297,00.html.
189. “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.
190. Columbia Catalog Number CO45097, available at http://settlet.fateback.com/COL30000.htm.
191. J. C. Marion, “Ray Charles: The Atlantic Years,” JammUpp 2 no. 32 (2004): 32, http://home.earthlink.net/~v1tiger/jammuppvol2.html.
192. “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.
193. 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 “99½ Won’t Do” for Wilson Pickett.
“Urban Contemporary Gospel,” Wikipedia, http://en.wikipedia.org/wiki/urban_contemporary_gospel.
194. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, N.J.: Princeton University Press, 1957), 96–97.
195. John Leland, “Art Born of Outrage in the Internet Age,” New York Times (September 25, 2005), D3.
196. Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991).
197. Ibid., 183.
198. 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).
199. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 804n16 (6th Cir. 2005).
200. 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.
201. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994).
202. See, e.g., Pamela Samuelson, Randall Davis, Mitchell D. Kapor, and J. H. Reichman, “A Manifesto Concerning the Legal Protection of Computer Programs,” Columbia Law Review 94 (1994): 2308–2431; Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998): 698–701.
203. Wes Cohen’s empirical studies, for example, suggest that some of the potential dangers from overbroad gene patents have been offset by widespread lawbreaking among academic research scientists, who simply ignore patents that get in their way, and by more flexible licensing practices than the anticommons theorists had predicted. John P. Walsh, Ashish Arora, and Wesley Cohen, “Effects of Research Tool Patents and Licensing on Biomedical Innovation,” in Patents in the Knowledge-Based Economy, ed. W. Cohen and S. A. Merrill (National Research Council, 2003), 285–340.
204. Arti Rai and James Boyle, “Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons,” PLoS Biology 5 (2007): 389–393, available at http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050058&ct=1.
205. William Gates III, An Open Letter to Hobbyists, February 3, 1976, quoted in Wallace Wang, Steal This Computer Book 4.0: What They Won’t Tell You About the Internet (San Francisco: No Starch Press, 2006), 73.
206. Paul Goldstein, “Copyright,” Journal of the Copyright Society of the U.S.A. 38 (1991): 109–110.
207. State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368, 1373 (Fed. Cir. 1998).
208. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) [Ed. note: originally published as 550 U.S. ___ (2007), 127 S. Ct. 1727 (2007); citation updated].
209. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
211. “Gene Machine: Cells Engineered to Prevent Sepsis Win Synthetic Biology Competition,” Science Daily (November 15, 2006), available at http://www.sciencedaily.com/releases/2006/11/061114193826.htm.
213. Keller Rinaudo et al., “A universal RNAi-based logic evaluator that operates in mammalian cells,” Nature Biotechnology 25 (2007): 795–801.
214. Sapna Kumar and Arti Rai, “Synthetic Biology: The Intellectual Property Puzzle,” Texas Law Review 85 (2007): 1745–1768.
215. 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).
216. 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/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/684/594 [Ed. note: originally published as http://firstmonday.org/issues/issue4_8/index.html, the link has changed].
217. 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.
218. See Brian Behlendorf, “Open Source as a Business Strategy,” in Open Sources: Voices from the Open Source Revolution, ed. Chris DiBona et al. (Sebastopol, Calif.: O’Reilly, 1999), 149, 163.
219. 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.
220. 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.
221. “UK Government Report Gives Nod to Open Source,” Desktop Linux (October 28, 2004), available at http://www.desktoplinux.com/news/NS5013620917.html.
222. “Cases of Official Recognition of Free and Open Source Software,” available at http://ec.europa.eu/information_society/activities/opensource/cases/index_en.htm.
223. E. Cobham Brewer, The Dictionary of Phrase and Fable (London: John Cassell, 1894), 1111–1112.
224. 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.
225. 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.”
226. 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.
227. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006), 46–47.
228. See Karl Popper, The Open Society and Its Enemies (London: Routledge, 1945).
230. See, e.g., NASA’s “Clickworkers” experiment, which used public volunteers to analyze Mars landing data, available at http://clickworkers.arc.nasa.gov/top.
231. Benkler, “Coase’s Penguin,” 11.
232. Free Software Foundation, http://www.gnu.org/philosophy/free-sw.html [Ed. note: originally published at http://www.gnu.ai.mit.edu/philosophy/free-sw.html, the link has changed].
233. Exhibit A: the Internet—from the software and protocols on which it runs to the multiple volunteer sources of content and information.
234. 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.
235. 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.
236. Uniform Computer Information Transactions Act, available at http://www.law.upenn.edu/bll/archives/ulc/ucita/2002final.htm.
237. 17 U.S.C. § 1201 (2002).
238. 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.
239. William W. Fisher III, “Property and Contract on the Internet,” Chicago-Kent Law Review 73 (1998): 1217–1218.
240. 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.
241. See “Salam Pax,” Wikipedia, available at http://en.wikipedia.org/wiki/Salam_Pax.
242. Feist Publications, Inc. v. Rural Telephone Service Co. , 499 U.S. 340 (1991).
243. Stephen M. Maurer, P. Bernt Hugenholtz, and Harlan J. Onsrud, “Europe’s Database Experiment,” Science 294 (2001): 789–790.
244. Stephen M. Maurer, “Across Two Worlds: US and European Models of Database Protection,” paper commissioned by Industry Canada (2001).
245. Matthew Bender & Co. v. West Publishing Co. , 158 F.3d 674 (2nd Cir. 1998).
246. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996).
247. 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.
248. Ibid., 22.
249. 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.
250. 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/).
251. Andrew Gowers, Gowers Review of Intellectual Property (London: HMSO, 2006), available at http://www.hm-treasury.gov.uk/d/pbr06_gowers_report_755.pdf [Ed. note: originally published at http://www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf, the link has changed].
252. 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/d/gowers_cipilreport.pdf [Ed. note: originally published at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf, the link has changed].
253. Ibid., 21–22.
254. Ibid.
255. House of Commons Select Committee on Culture, Media and Sport, Fifth Report (2007), available at http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcumeds/509/50910.htm.
256. Jonathan Zittrain, The Future of the Internet—And How to Stop It (New Haven, Conn.: Yale University Press, 2008).
257. 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.
258. 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).
259. “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.”
260. William D. Ruckelshaus, “Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad,” Environmental Law 15 (1985): 457.
261. 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.
262. James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87–116.
263. Molly Shaffer Van Houweling, “Cultural Environmentalism and the Constructed Commons,” Law and Contemporary Problems 70 (Spring 2007): 23–50.
264. See http://www.eff.org/issues/intellectual-property [Ed. note: originally published at http://www.eff.org/IP/, the link has changed], http://www.openrightsgroup.org/, http://www.publicknowledge.org/.
265. Eldred v. Ashcroft, 537 U.S. 186 (2003). Once again, Professor Lessig had the central role as counsel for petitioners.
267. See Access to Knowledge, http://www.cptech.org/a2k/. Some of Mr. Love’s initiatives are discussed at http://www.cptech.org/jamie/.
268. Tim Hubbard and James Love, “A New Trade Framework for Global Healthcare R&D,” PLoS Biology 2 (2004): e52.
269. 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.
270. 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 www.macfound.org/grantmaking_guidelines_ippd [Ed. note: originally published as http://www.macfound.org/site/c.lkLXJ8MQKrH/b.943331/k.DA6/General_Grantmaking__Intellectual_Property.htm, the link changed]. 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.
272. 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.
273. See “News for Nerds: Stuff That Matters,” http://www.slashdot.org, and “A Directory of Wonderful Things,” http://www.boingboing.net.
274. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.).
275. 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.
276. R. David Kryder, Stanley P. Kowalski, and Anatole F. Krattiger, “The Intellectual and Technical Property Components of Pro-Vitamin A Rice (GoldenRice™): A Preliminary Freedom-to-Operate Review,” ISAAA Briefs No. 20 (2000), available at http://www.isaaa.org/Briefs/20/briefs.htm.
277. “The Supreme Court Docket: The Coming of Copyright Perpetuity,” New York Times editorial (January 16, 2003), A28.
278. “Free Mickey Mouse,” Washington Post editorial (January 21, 2003), A16.
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