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Except from Free Culture by Lawrence Lessig.Except from Free Culture by Lawrence Lessig.Table of Contents1. AFTERWORD US, NOW Rebuilding Freedoms Previously Presumed: Examples Rebuilding Free Culture: One Idea THEM, SOON 1. More Formalities 2. Shorter Terms 3. Free Use Vs. Fair Use 4. Liberate the Music—Again Except from Free Culture by Lawrence Lessig.Except from Free Culture by Lawrence Lessig.List of Examples1. xlmto-pdf.xsl content AFTERWORDAFTERWORDChapter 1. AFTERWORD
At least some who have read this far will agree with me that something
must be done to change where we are heading. The balance of this book
maps what might be done.
I divide this map into two parts: that which anyone can do now,
and that which requires the help of lawmakers. If there is one lesson
that we can draw from the history of remaking common sense, it is that
it requires remaking how many people think about the very same issue.
That means this movement must begin in the streets. It must recruit a
significant number of parents, teachers, librarians, creators,
authors, musicians, filmmakers, scientists—all to tell this
story in their own words, and to tell their neighbors why this battle
is so important.
Once this movement has its effect in the streets, it has some hope of
having an effect in Washington. We are still a democracy. What people
think matters. Not as much as it should, at least when an RCA stands
opposed, but still, it matters. And thus, in the second part below, I
sketch changes that Congress could make to better secure a free culture.
US, NOWUS, NOW
Common sense is with the copyright warriors because the debate so far
has been framed at the extremes—as a grand either/or: either
property or anarchy, either total control or artists won't be paid. If
that really is the choice, then the warriors should win.
The mistake here is the error of the excluded middle. There are
extremes in this debate, but the extremes are not all that there
is. There are those who believe in maximal copyright—"All Rights
Reserved"— and those who reject copyright—"No Rights
Reserved." The "All Rights Reserved" sorts believe that you should ask
permission before you "use" a copyrighted work in any way. The "No
Rights Reserved" sorts believe you should be able to do with content
as you wish, regardless of whether you have permission or not.
When the Internet was first born, its initial architecture effectively
tilted in the "no rights reserved" direction. Content could be copied
perfectly and cheaply; rights could not easily be controlled. Thus,
regardless of anyone's desire, the effective regime of copyright under
the
original design of the Internet was "no rights reserved." Content was
"taken" regardless of the rights. Any rights were effectively
unprotected.
This initial character produced a reaction (opposite, but not quite
equal) by copyright owners. That reaction has been the topic of this
book. Through legislation, litigation, and changes to the network's
design, copyright holders have been able to change the essential
character of the environment of the original Internet. If the original
architecture made the effective default "no rights reserved," the
future architecture will make the effective default "all rights
reserved." The architecture and law that surround the Internet's
design will increasingly produce an environment where all use of
content requires permission. The "cut and paste" world that defines
the Internet today will become a "get permission to cut and paste"
world that is a creator's nightmare.
What's needed is a way to say something in the middle—neither
"all rights reserved" nor "no rights reserved" but "some rights
reserved"— and thus a way to respect copyrights but enable
creators to free content as they see fit. In other words, we need a
way to restore a set of freedoms that we could just take for granted
before.
Rebuilding Freedoms Previously Presumed: ExamplesRebuilding Freedoms Previously Presumed: Examples
If you step back from the battle I've been describing here, you will
recognize this problem from other contexts. Think about
privacy. Before the Internet, most of us didn't have to worry much
about data about our lives that we broadcast to the world. If you
walked into a bookstore and browsed through some of the works of Karl
Marx, you didn't need to worry about explaining your browsing habits
to your neighbors or boss. The "privacy" of your browsing habits was
assured.
What made it assured?
Well, if we think in terms of the modalities I described in chapter 10, your
privacy was assured because of an inefficient architecture for
gathering data and hence a market constraint (cost) on anyone who
wanted to gather that data. If you were a suspected spy for North
Korea, working for the CIA, no doubt your privacy would not be
assured. But that's because the CIA would (we hope) find it valuable
enough to spend the thousands required to track you. But for most of
us (again, we can hope), spying doesn't pay. The highly inefficient
architecture of real space means we all enjoy a fairly robust amount
of privacy. That privacy is guaranteed to us by friction. Not by law
(there is no law protecting "privacy" in public places), and in many
places, not by norms (snooping and gossip are just fun), but instead,
by the costs that friction imposes on anyone who would want to spy.
Enter the Internet, where the cost of tracking browsing in particular
has become quite tiny. If you're a customer at Amazon, then as you
browse the pages, Amazon collects the data about what you've looked
at. You know this because at the side of the page, there's a list of
"recently viewed" pages. Now, because of the architecture of the Net
and the function of cookies on the Net, it is easier to collect the
data than not. The friction has disappeared, and hence any "privacy"
protected by the friction disappears, too.
Amazon, of course, is not the problem. But we might begin to worry
about libraries. If you're one of those crazy lefties who thinks that
people should have the "right" to browse in a library without the
government knowing which books you look at (I'm one of those lefties,
too), then this change in the technology of monitoring might concern
you. If it becomes simple to gather and sort who does what in
electronic spaces, then the friction-induced privacy of yesterday
disappears.
It is this reality that explains the push of many to define "privacy"
on the Internet. It is the recognition that technology can remove what
friction before gave us that leads many to push for laws to do what
friction did.11
See, for example, Marc Rotenberg, "Fair Information Practices and the
Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology
Law Review 1 (2001): par. 6–18, available at
link #72 [http://free-culture.cc/notes/]
(describing examples in which technology defines privacy policy). See
also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom
in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs
between technology and privacy).
And whether you're in favor of those laws or not, it is the pattern
that is important here. We must take affirmative steps to secure a
kind of freedom that was passively provided before. A change in
technology now forces those who believe in privacy to affirmatively
act where, before, privacy was given by default.
A similar story could be told about the birth of the free software
movement. When computers with software were first made available
commercially, the software—both the source code and the
binaries— was free. You couldn't run a program written for a
Data General machine on an IBM machine, so Data General and IBM didn't
care much about controlling their software.
That was the world Richard Stallman was born into, and while he was a
researcher at MIT, he grew to love the community that developed when
one was free to explore and tinker with the software that ran on
machines. Being a smart sort himself, and a talented programmer,
Stallman grew to depend upon the freedom to add to or modify other
people's work.
In an academic setting, at least, that's not a terribly radical
idea. In a math department, anyone would be free to tinker with a
proof that someone offered. If you thought you had a better way to
prove a theorem, you could take what someone else did and change
it. In a classics department, if you believed a colleague's
translation of a recently discovered text was flawed, you were free to
improve it. Thus, to Stallman, it seemed obvious that you should be
free to tinker with and improve the code that ran a machine. This,
too, was knowledge. Why shouldn't it be open for criticism like
anything else?
No one answered that question. Instead, the architecture of revenue
for computing changed. As it became possible to import programs from
one system to another, it became economically attractive (at least in
the view of some) to hide the code of your program. So, too, as
companies started selling peripherals for mainframe systems. If I
could just take your printer driver and copy it, then that would make
it easier for me to sell a printer to the market than it was for you.
Thus, the practice of proprietary code began to spread, and by the
early 1980s, Stallman found himself surrounded by proprietary code.
The world of free software had been erased by a change in the
economics of computing. And as he believed, if he did nothing about
it, then the freedom to change and share software would be
fundamentally weakened.
Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
was the birth of the GNU project, into which Linus Torvalds's "Linux"
kernel was added to produce the GNU/Linux operating system.
Stallman's technique was to use copyright law to build a world of
software that must be kept free. Software licensed under the Free
Software Foundation's GPL cannot be modified and distributed unless
the source code for that software is made available as well. Thus,
anyone building upon GPL'd software would have to make their buildings
free as well. This would assure, Stallman believed, that an ecology of
code would develop that remained free for others to build upon. His
fundamental goal was freedom; innovative creative code was a
byproduct.
Stallman was thus doing for software what privacy advocates now
do for privacy. He was seeking a way to rebuild a kind of freedom that
was taken for granted before. Through the affirmative use of licenses
that bind copyrighted code, Stallman was affirmatively reclaiming a
space where free software would survive. He was actively protecting
what before had been passively guaranteed.
Finally, consider a very recent example that more directly resonates
with the story of this book. This is the shift in the way academic and
scientific journals are produced.
As digital technologies develop, it is becoming obvious to many that
printing thousands of copies of journals every month and sending them
to libraries is perhaps not the most efficient way to distribute
knowledge. Instead, journals are increasingly becoming electronic, and
libraries and their users are given access to these electronic
journals through password-protected sites. Something similar to this
has been happening in law for almost thirty years: Lexis and Westlaw
have had electronic versions of case reports available to subscribers
to their service. Although a Supreme Court opinion is not
copyrighted, and anyone is free to go to a library and read it, Lexis
and Westlaw are also free
to charge users for the privilege of gaining access to that Supreme
Court opinion through their respective services.
There's nothing wrong in general with this, and indeed, the ability to
charge for access to even public domain materials is a good incentive
for people to develop new and innovative ways to spread knowledge.
The law has agreed, which is why Lexis and Westlaw have been allowed
to flourish. And if there's nothing wrong with selling the public
domain, then there could be nothing wrong, in principle, with selling
access to material that is not in the public domain.
But what if the only way to get access to social and scientific data
was through proprietary services? What if no one had the ability to
browse this data except by paying for a subscription?
As many are beginning to notice, this is increasingly the reality with
scientific journals. When these journals were distributed in paper
form, libraries could make the journals available to anyone who had
access to the library. Thus, patients with cancer could become cancer
experts because the library gave them access. Or patients trying to
understand the risks of a certain treatment could research those risks
by reading all available articles about that treatment. This freedom
was therefore a function of the institution of libraries (norms) and
the technology of paper journals (architecture)—namely, that it
was very hard to control access to a paper journal.
As journals become electronic, however, the publishers are demanding
that libraries not give the general public access to the
journals. This means that the freedoms provided by print journals in
public libraries begin to disappear. Thus, as with privacy and with
software, a changing technology and market shrink a freedom taken for
granted before.
This shrinking freedom has led many to take affirmative steps to
restore the freedom that has been lost. The Public Library of Science
(PLoS), for example, is a nonprofit corporation dedicated to making
scientific research available to anyone with a Web connection. Authors
of scientific work submit that work to the Public Library of Science.
That work is then subject to peer review. If accepted, the work is
then deposited in a public, electronic archive and made permanently
available for free. PLoS also sells a print version of its work, but
the copyright for the print journal does not inhibit the right of
anyone to redistribute the work for free.
This is one of many such efforts to restore a freedom taken for
granted before, but now threatened by changing technology and markets.
There's no doubt that this alternative competes with the traditional
publishers and their efforts to make money from the exclusive
distribution of content. But competition in our tradition is
presumptively a good—especially when it helps spread knowledge
and science.
Rebuilding Free Culture: One IdeaRebuilding Free Culture: One Idea
The same strategy could be applied to culture, as a response to the
increasing control effected through law and technology.
Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
Stanford University. Its aim is to build a layer of
reasonable copyright on top of the extremes that
now reign. It does this by making it easy for people to build upon
other people's work, by making it simple for creators to express the
freedom for others to take and build upon their work. Simple tags,
tied to human-readable descriptions, tied to bulletproof licenses,
make this possible.
Simple—which means without a middleman, or
without a lawyer. By developing a free set of licenses that people
can attach to their content, Creative Commons aims to mark a range of
content that can easily, and reliably, be built upon. These tags are
then linked to machine-readable versions of the license that enable
computers automatically to identify content that can easily be
shared. These three expressions together—a legal license, a
human-readable description, and
machine-readable tags—constitute a Creative Commons license. A
Creative Commons license constitutes a grant of freedom to anyone who
accesses the license, and more importantly, an expression of the ideal
that the person associated with the license believes in something
different than the "All" or "No" extremes. Content is marked with the
CC mark, which does not mean that copyright is waived, but that
certain freedoms are given.
These freedoms are beyond the freedoms promised by fair use. Their
precise contours depend upon the choices the creator makes. The
creator can choose a license that permits any use, so long as
attribution is given. She can choose a license that permits only
noncommercial use. She can choose a license that permits any use so
long as the same freedoms are given to other uses ("share and share
alike"). Or any use so long as no derivative use is made. Or any use
at all within developing nations. Or any sampling use, so long as full
copies are not made. Or lastly, any educational use.
These choices thus establish a range of freedoms beyond the default of
copyright law. They also enable freedoms that go beyond traditional
fair use. And most importantly, they express these freedoms in a way
that subsequent users can use and rely upon without the need to hire a
lawyer. Creative Commons thus aims to build a layer of content,
governed by a layer of reasonable copyright law, that others can build
upon. Voluntary choice of individuals and creators will make this
content available. And that content will in turn enable us to rebuild
a public domain.
This is just one project among many within the Creative Commons. And
of course, Creative Commons is not the only organization pursuing such
freedoms. But the point that distinguishes the Creative Commons from
many is that we are not interested only in talking about a public
domain or in getting legislators to help build a public domain. Our
aim is to build a movement of consumers and producers
of content ("content conducers," as attorney Mia Garlick calls them)
who help build the public domain and, by their work, demonstrate the
importance of the public domain to other creativity.
The aim is not to fight the "All Rights Reserved" sorts. The aim is to
complement them. The problems that the law creates for us as a culture
are produced by insane and unintended consequences of laws written
centuries ago, applied to a technology that only Jefferson could have
imagined. The rules may well have made sense against a background of
technologies from centuries ago, but they do not make sense against
the background of digital technologies. New rules—with different
freedoms, expressed in ways so that humans without lawyers can use
them—are needed. Creative Commons gives people a way effectively
to begin to build those rules.
Why would creators participate in giving up total control? Some
participate to better spread their content. Cory Doctorow, for
example, is a science fiction author. His first novel, Down and Out in
the Magic Kingdom, was released on-line and for free, under a Creative
Commons license, on the same day that it went on sale in bookstores.
Why would a publisher ever agree to this? I suspect his publisher
reasoned like this: There are two groups of people out there: (1)
those who will buy Cory's book whether or not it's on the Internet,
and (2) those who may never hear of Cory's book, if it isn't made
available for free on the Internet. Some part of (1) will download
Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
will download Cory's book, like it, and then decide to buy it. Call
them (2)-goods. If there are more (2)-goods than bad-(1)s, the
strategy of releasing Cory's book free on-line will probably
increase sales of Cory's book.
Indeed, the experience of his publisher clearly supports that
conclusion. The book's first printing was exhausted months before the
publisher had expected. This first novel of a science fiction author
was a total success.
The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
who wrote a book about the free software movement titled Free for All,
made an electronic version of his book free on-line under a Creative
Commons license after the book went out of print. He then monitored
used book store prices for the book. As predicted, as the number of
downloads increased, the used book price for his book increased, as
well.
These are examples of using the Commons to better spread proprietary
content. I believe that is a wonderful and common use of the
Commons. There are others who use Creative Commons licenses for other
reasons. Many who use the "sampling license" do so because anything
else would be hypocritical. The sampling license says that others are
free, for commercial or noncommercial purposes, to sample content from
the licensed work; they are just not free to make full copies of the
licensed work available to others. This is consistent with their own
art—they, too, sample from others. Because the
legal costs of sampling are so high (Walter
Leaphart, manager of the rap group Public Enemy, which was born
sampling the music of others, has stated that he does not "allow"
Public Enemy to sample anymore, because the legal costs are so
high22
Willful Infringement: A Report from the Front Lines of the Real
Culture Wars (2003), produced by Jed Horovitz, directed by Greg
Hittelman, a Fiat Lucre production, available at
link #72 [http://free-culture.cc/notes/].
),
these artists release into the creative environment content
that others can build upon, so that their form of creativity might grow.
Finally, there are many who mark their content with a Creative Commons
license just because they want to express to others the importance of
balance in this debate. If you just go along with the system as it is,
you are effectively saying you believe in the "All Rights Reserved"
model. Good for you, but many do not. Many believe that however
appropriate that rule is for Hollywood and freaks, it is not an
appropriate description of how most creators view the rights
associated with their content. The Creative Commons license expresses
this notion of "Some Rights Reserved," and gives many the chance to
say it to others.
In the first six months of the Creative Commons experiment, over
1 million objects were licensed with these free-culture licenses. The next
step is partnerships with middleware content providers to help them
build into their technologies simple ways for users to mark their content
with Creative Commons freedoms. Then the next step is to watch and
celebrate creators who build content based upon content set free.
These are first steps to rebuilding a public domain. They are not
mere arguments; they are action. Building a public domain is the first
step to showing people how important that domain is to creativity and
innovation. Creative Commons relies upon voluntary steps to achieve
this rebuilding. They will lead to a world in which more than voluntary
steps are possible.
Creative Commons is just one example of voluntary efforts by
individuals and creators to change the mix of rights that now govern
the creative field. The project does not compete with copyright; it
complements it. Its aim is not to defeat the rights of authors, but to
make it easier for authors and creators to exercise their rights more
flexibly and cheaply. That difference, we believe, will enable
creativity to spread more easily.
THEM, SOONTHEM, SOON
We will not reclaim a free culture by individual action alone. It will
also take important reforms of laws. We have a long way to go before
the politicians will listen to these ideas and implement these reforms.
But that also means that we have time to build awareness around the
changes that we need.
In this chapter, I outline five kinds of changes: four that are general,
and one that's specific to the most heated battle of the day, music. Each
is a step, not an end. But any of these steps would carry us a long way
to our end.
1. More Formalities1. More Formalities
If you buy a house, you have to record the sale in a deed. If you buy land
upon which to build a house, you have to record the purchase in a deed.
If you buy a car, you get a bill of sale and register the car. If you buy an
airplane ticket, it has your name on it.
These are all formalities associated with property. They are
requirements that we all must bear if we want our property to be
protected.
In contrast, under current copyright law, you automatically get a
copyright, regardless of whether you comply with any formality. You
don't have to register. You don't even have to mark your content. The
default is control, and "formalities" are banished.
Why?
As I suggested in chapter 10, the motivation to abolish formalities was a
good one. In the world before digital technologies, formalities
imposed a burden on copyright holders without much benefit. Thus, it
was progress when the law relaxed the formal requirements that a
copyright owner must bear to protect and secure his work. Those
formalities were getting in the way.
But the Internet changes all this. Formalities today need not be a
burden. Rather, the world without formalities is the world that
burdens creativity. Today, there is no simple way to know who owns
what, or with whom one must deal in order to use or build upon the
creative work of others. There are no records, there is no system to
trace— there is no simple way to know how to get permission. Yet
given the massive increase in the scope of copyright's rule, getting
permission is a necessary step for any work that builds upon our
past. And thus, the lack of formalities forces
many into silence where they otherwise could speak.
The law should therefore change this requirement33
The proposal I am advancing here would apply to American works only.
Obviously, I believe it would be beneficial for the same idea to be
adopted by other countries as well.—but it
should not change it by going back to the old, broken system. We
should require formalities, but we should establish a system that will
create the incentives to minimize the burden of these formalities.
The important formalities are three: marking copyrighted work,
registering copyrights, and renewing the claim to
copyright. Traditionally, the first of these three was something the
copyright owner did; the second two were something the government
did. But a revised system of formalities would banish the government
from the process, except for the sole purpose of approving standards
developed by others.
REGISTRATION AND RENEWAL
Under the old system, a copyright owner had to file a registration
with the Copyright Office to register or renew a copyright. When
filing that registration, the copyright owner paid a fee. As with most
government agencies, the Copyright Office had little incentive to
minimize the burden of registration; it also had little incentive to
minimize the fee. And as the Copyright Office is not a main target of
government policymaking, the office has historically been terribly
underfunded. Thus, when people who know something about the process
hear this idea about formalities, their first reaction is
panic—nothing could be worse than forcing people to deal with
the mess that is the Copyright Office.
Yet it is always astonishing to me that we, who come from a tradition
of extraordinary innovation in governmental design, can no longer
think innovatively about how governmental functions can be designed.
Just because there is a public purpose to a government role, it
doesn't follow that the government must actually administer the
role. Instead, we should be creating incentives for private parties to
serve the public, subject to standards that the government sets.
In the context of registration, one obvious model is the Internet.
There are at least 32 million Web sites registered around the world.
Domain name owners for these Web sites have to pay a fee to keep their
registration alive. In the main top-level domains (.com, .org, .net),
there is a central registry. The actual registrations are, however,
performed by many competing registrars. That competition drives the
cost of registering down, and more importantly, it drives the ease
with which registration occurs up.
We should adopt a similar model for the registration and renewal of
copyrights. The Copyright Office may well serve as the central
registry, but it should not be in the registrar business. Instead, it
should establish a database, and a set of standards for registrars. It
should approve registrars that meet its standards. Those registrars
would then compete with one another to deliver the cheapest and
simplest systems for registering and renewing copyrights. That
competition would substantially lower the burden of this
formality—while producing a database
of registrations that would facilitate the licensing of content.
MARKING
It used to be that the failure to include a copyright notice on a
creative work meant that the copyright was forfeited. That was a harsh
punishment for failing to comply with a regulatory rule—akin to
imposing the death penalty for a parking ticket in the world of
creative rights. Here again, there is no reason that a marking
requirement needs to be enforced in this way. And more importantly,
there is no reason a marking requirement needs to be enforced
uniformly across all media.
The aim of marking is to signal to the public that this work is
copyrighted and that the author wants to enforce his rights. The mark
also makes it easy to locate a copyright owner to secure permission to
use the work.
One of the problems the copyright system confronted early on was
that different copyrighted works had to be differently marked. It wasn't
clear how or where a statue was to be marked, or a record, or a film. A
new marking requirement could solve these problems by recognizing
the differences in media, and by allowing the system of marking to
evolve as technologies enable it to. The system could enable a special
signal from the failure to mark—not the loss of the copyright, but the
loss of the right to punish someone for failing to get permission first.
Let's start with the last point. If a copyright owner allows his work
to be published without a copyright notice, the consequence of that
failure need not be that the copyright is lost. The consequence could
instead be that anyone has the right to use this work, until the
copyright owner complains and demonstrates that it is his work and he
doesn't give permission.44
There would be a complication with derivative works that I have not
solved here. In my view, the law of derivatives creates a more complicated
system than is justified by the marginal incentive it creates.
The meaning of an unmarked work would therefore be "use unless someone
complains." If someone does complain, then the obligation would be to
stop using the work in any new
work from then on though no penalty would attach for existing uses.
This would create a strong incentive for copyright owners to mark
their work.
That in turn raises the question about how work should best be
marked. Here again, the system needs to adjust as the technologies
evolve. The best way to ensure that the system evolves is to limit the
Copyright Office's role to that of approving standards for marking
content that have been crafted elsewhere.
For example, if a recording industry association devises a method for
marking CDs, it would propose that to the Copyright Office. The
Copyright Office would hold a hearing, at which other proposals could
be made. The Copyright Office would then select the proposal that it
judged preferable, and it would base that choice
solely upon the consideration of which method
could best be integrated into the registration and renewal system. We
would not count on the government to innovate; but we would count on
the government to keep the product of innovation in line with its
other important functions.
Finally, marking content clearly would simplify registration
requirements. If photographs were marked by author and year, there
would be little reason not to allow a photographer to reregister, for
example, all photographs taken in a particular year in one quick
step. The aim of the formality is not to burden the creator; the
system itself should be kept as simple as possible.
The objective of formalities is to make things clear. The existing
system does nothing to make things clear. Indeed, it seems designed to
make things unclear.
If formalities such as registration were reinstated, one of the most
difficult aspects of relying upon the public domain would be removed.
It would be simple to identify what content is presumptively free; it
would be simple to identify who controls the rights for a particular
kind of content; it would be simple to assert those rights, and to renew
that assertion at the appropriate time.
2. Shorter Terms2. Shorter Terms
The term of copyright has gone from fourteen years to ninety-five
years for corporate authors, and life of the author plus seventy years for
natural authors.
In The Future of Ideas, I proposed a seventy-five-year term,
granted in five-year increments with a requirement of renewal every
five years. That seemed radical enough at the time. But after we lost
Eldred v. Ashcroft, the proposals became even more
radical. The Economist endorsed a proposal for a fourteen-year
copyright term.55
"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
available at
link #74 [http://free-culture.cc/notes/].
Others have proposed tying the term to the term for patents.
I agree with those who believe that we need a radical change in
copyright's term. But whether fourteen years or seventy-five, there
are four principles that are important to keep in mind about copyright
terms.
1.
Keep it short: The term should be as long as
necessary to give incentives to create, but no longer. If it were tied
to very strong protections for authors (so authors were able to
reclaim rights from publishers), rights to the same work (not
derivative works) might be extended further. The key is not to tie the
work up with legal regulations when it no longer benefits an author.
2.
Keep it simple: The line between the public
domain and protected content must be kept clear. Lawyers like the
fuzziness of "fair use," and the distinction between "ideas" and
"expression." That kind of law gives them lots of work. But our
framers had a simpler idea in mind: protected versus unprotected. The
value of short terms is that there is little need to build exceptions
into copyright when the term itself is kept short. A clear and active
"lawyer-free zone" makes the complexities of "fair use" and
"idea/expression" less necessary to navigate.
3.
Keep it alive: Copyright should have to be
renewed. Especially if the maximum term is long, the copyright owner
should be required to signal periodically that he wants the protection
continued. This need not be an onerous burden, but there is no reason
this monopoly protection has to be granted for free. On average, it
takes ninety minutes for a veteran to apply for a
pension.66
Department of Veterans Affairs, Veteran's Application for Compensation
and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
available at
link #75 [http://free-culture.cc/notes/].
If we make veterans suffer that burden, I don't see why we couldn't
require authors to spend ten minutes every fifty years to file a
single form.
4.
Keep it prospective: Whatever the term of
copyright should be, the clearest lesson that economists teach is that
a term once given should not be extended. It might have been a mistake
in 1923 for the law to offer authors only a fifty-six-year term. I
don't think so, but it's possible. If it was a mistake, then the
consequence was that we got fewer authors to create in 1923 than we
otherwise would have. But we can't correct that mistake today by
increasing the term. No matter what we do today, we will not increase
the number of authors who wrote in 1923. Of course, we can increase
the reward that those who write now get (or alternatively, increase
the copyright burden that smothers many works that are today
invisible). But increasing their reward will not increase their
creativity in 1923. What's not done is not done, and there's nothing
we can do about that now.
These changes together should produce an average
copyright term that is much shorter than the current term. Until 1976,
the average term was just 32.2 years. We should be aiming for the
same.
No doubt the extremists will call these ideas "radical." (After all, I
call them "extremists.") But again, the term I recommended was longer
than the term under Richard Nixon. How "radical" can it be to ask for
a more generous copyright law than Richard Nixon presided over?
3. Free Use Vs. Fair Use3. Free Use Vs. Fair Use
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
ground to the heavens. The airplane came along. The scope of property
rights quickly changed. There was no fuss, no constitutional
challenge. It made no sense anymore to grant that much control, given
the emergence of that new technology.
Our Constitution gives Congress the power to give authors "exclusive
right" to "their writings." Congress has given authors an exclusive
right to "their writings" plus any derivative writings (made by
others) that are sufficiently close to the author's original
work. Thus, if I write a book, and you base a movie on that book, I
have the power to deny you the right to release that movie, even
though that movie is not "my writing."
Congress granted the beginnings of this right in 1870, when it
expanded the exclusive right of copyright to include a right to
control translations and dramatizations of a work.77
Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
University Press, 1967), 32.
The courts have expanded it slowly through judicial interpretation
ever since. This expansion has been commented upon by one of the law's
greatest judges, Judge Benjamin Kaplan.
So inured have we become to the extension of the monopoly to a
large range of so-called derivative works, that we no longer sense
the oddity of accepting such an enlargement of copyright while
yet intoning the abracadabra of idea and expression.88
Ibid., 56.
I think it's time to recognize that there are airplanes in this field and
the expansiveness of these rights of derivative use no longer make
sense. More precisely, they don't make sense for the period of time that
a copyright runs. And they don't make sense as an amorphous grant.
Consider each limitation in turn.
Term: If Congress wants to grant a derivative
right, then that right should be for a much shorter term. It makes
sense to protect John
Grisham's right to sell the movie rights to his latest novel (or at least
I'm willing to assume it does); but it does not make sense for that right
to run for the same term as the underlying copyright. The derivative
right could be important in inducing creativity; it is not important long
after the creative work is done.
Scope: Likewise should the scope of derivative
rights be narrowed. Again, there are some cases in which derivative
rights are important. Those should be specified. But the law should
draw clear lines around regulated and unregulated uses of copyrighted
material. When all "reuse" of creative material was within the control
of businesses, perhaps it made sense to require lawyers to negotiate
the lines. It no longer makes sense for lawyers to negotiate the
lines. Think about all the creative possibilities that digital
technologies enable; now imagine pouring molasses into the
machines. That's what this general requirement of permission does to
the creative process. Smothers it.
This was the point that Alben made when describing the making of the
Clint Eastwood CD. While it makes sense to require negotiation for
foreseeable derivative rights—turning a book into a movie, or a
poem into a musical score—it doesn't make sense to require
negotiation for the unforeseeable. Here, a statutory right would make
much more sense.
In each of these cases, the law should mark the uses that are
protected, and the presumption should be that other uses are not
protected. This is the reverse of the recommendation of my colleague
Paul Goldstein.99
Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
Jukebox (Stanford: Stanford University Press, 2003), 187–216.
His view is that the law should be written so that
expanded protections follow expanded uses.
Goldstein's analysis would make perfect sense if the cost of the legal
system were small. But as we are currently seeing in the context of
the Internet, the uncertainty about the scope of protection, and the
incentives to protect existing architectures of revenue, combined with
a strong copyright, weaken the process of innovation.
The law could remedy this problem either by removing protection
beyond the part explicitly drawn or by granting reuse rights upon
certain statutory conditions. Either way, the effect would be to free
a great deal of culture to others to cultivate. And under a statutory
rights regime, that reuse would earn artists more income.
4. Liberate the Music—Again4. Liberate the Music—Again
The battle that got this whole war going was about music, so it
wouldn't be fair to end this book without addressing the issue that
is, to most people, most pressing—music. There is no other
policy issue that better teaches the lessons of this book than the
battles around the sharing of music.
The appeal of file-sharing music was the crack cocaine of the
Internet's growth. It drove demand for access to the Internet more
powerfully than any other single application. It was the Internet's
killer app—possibly in two senses of that word. It no doubt was
the application that drove demand for bandwidth. It may well be the
application that drives demand for regulations that in the end kill
innovation on the network.
The aim of copyright, with respect to content in general and music in
particular, is to create the incentives for music to be composed,
performed, and, most importantly, spread. The law does this by giving
an exclusive right to a composer to control public performances of his
work, and to a performing artist to control copies of her performance.
File-sharing networks complicate this model by enabling the spread of
content for which the performer has not been paid. But of course,
that's not all the file-sharing networks do. As I described in chapter
10, they enable four different kinds of sharing:
A.
There are some who are using sharing networks as substitutes
for purchasing CDs.
B.
There are also some who are using sharing networks to sample,
on the way to purchasing CDs.
C.
There are many who are using file-sharing networks to get access to
content that is no longer sold but is still under copyright or that
would have been too cumbersome to buy off the Net.
D.
There are many who are using file-sharing networks to get access to
content that is not copyrighted or to get access that the copyright
owner plainly endorses.
Any reform of the law needs to keep these different uses in focus. It
must avoid burdening type D even if it aims to eliminate type A. The
eagerness with which the law aims to eliminate type A, moreover,
should depend upon the magnitude of type B. As with VCRs, if the net
effect of sharing is actually not very harmful, the need for regulation is
significantly weakened.
As I said in chapter 10, the actual harm caused by sharing is
controversial. For the purposes of this chapter, however, I assume
the harm is real. I assume, in other words, that type A sharing is
significantly greater than type B, and is the dominant use of sharing
networks.
Nonetheless, there is a crucial fact about the current technological
context that we must keep in mind if we are to understand how the law
should respond.
Today, file sharing is addictive. In ten years, it won't be. It is
addictive today because it is the easiest way to gain access to a
broad range of content. It won't be the easiest way to get access to
a broad range of content in ten years. Today, access to the Internet
is cumbersome and slow—we in the United States are lucky to have
broadband service at 1.5 MBs, and very rarely do we get service at
that speed both up and down. Although wireless access is growing, most
of us still get access across wires. Most only gain access through a
machine with a keyboard. The idea of the always on, always connected
Internet is mainly just an idea.
But it will become a reality, and that means the way we get access to
the Internet today is a technology in transition. Policy makers should
not make policy on the basis of technology in transition. They should
make policy on the basis of where the technology is going. The
question should not be, how should the law regulate sharing in this
world? The question should be, what law will we require when the
network becomes the network it is clearly becoming? That network is
one in which every machine with electricity is essentially on the Net;
where everywhere you are—except maybe the desert or the
Rockies—you can instantaneously be connected to the
Internet. Imagine the Internet as ubiquitous as the best cell-phone
service, where with the flip of a device, you are connected.
In that world, it will be extremely easy to connect to services that
give you access to content on the fly—such as Internet radio,
content that is streamed to the user when the user demands. Here,
then, is the critical point: When it is extremely
easy to connect to services that give access to content, it will be
easier to connect to services that give you
access to content than it will be to download and store content
on the many devices you will have for playing
content. It will be easier, in other words, to subscribe
than it will be to be a database manager, as everyone in the
download-sharing world of Napster-like technologies essentially
is. Content services will compete with content sharing, even if the
services charge money for the content they give access to. Already
cell-phone services in Japan offer music (for a fee) streamed over
cell phones (enhanced with plugs for headphones). The Japanese are
paying for this content even though "free" content is available in the
form of MP3s across the Web.1010
See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
April 2002, available at
link #76 [http://free-culture.cc/notes/].
This point about the future is meant to suggest a perspective on the
present: It is emphatically temporary. The "problem" with file
sharing—to the extent there is a real problem—is a problem
that will increasingly disappear as it becomes easier to connect to
the Internet. And thus it is an extraordinary mistake for policy
makers today to be "solving" this problem in light of a technology
that will be gone tomorrow. The question should not be how to
regulate the Internet to eliminate file sharing (the Net will evolve
that problem away). The question instead should be how to assure that
artists get paid, during
this transition between twentieth-century models for doing business
and twenty-first-century technologies.
The answer begins with recognizing that there are different "problems"
here to solve. Let's start with type D content—uncopyrighted
content or copyrighted content that the artist wants shared. The
"problem" with this content is to make sure that the technology that
would enable this kind of sharing is not rendered illegal. You can
think of it this way: Pay phones are used to deliver ransom demands,
no doubt. But there are many who need to use pay phones who have
nothing to do with ransoms. It would be wrong to ban pay phones in
order to eliminate kidnapping.
Type C content raises a different "problem." This is content that was,
at one time, published and is no longer available. It may be
unavailable because the artist is no longer valuable enough for the
record label he signed with to carry his work. Or it may be
unavailable because the work is forgotten. Either way, the aim of the
law should be to facilitate the access to this content, ideally in a
way that returns something to the artist.
Again, the model here is the used book store. Once a book goes out of
print, it may still be available in libraries and used book
stores. But libraries and used book stores don't pay the copyright
owner when someone reads or buys an out-of-print book. That makes
total sense, of course, since any other system would be so burdensome
as to eliminate the possibility of used book stores' existing. But
from the author's perspective, this "sharing" of his content without
his being compensated is less than ideal.
The model of used book stores suggests that the law could simply deem
out-of-print music fair game. If the publisher does not make copies of
the music available for sale, then commercial and noncommercial
providers would be free, under this rule, to "share" that content,
even though the sharing involved making a copy. The copy here would be
incidental to the trade; in a context where commercial publishing has
ended, trading music should be as free as trading books.
Alternatively, the law could create a statutory license that would
ensure that artists get something from the trade of their work. For
example, if the law set a low statutory rate for the commercial
sharing of content that was not offered for sale by a commercial
publisher, and if that rate were automatically transferred to a trust
for the benefit of the artist, then businesses could develop around
the idea of trading this content, and artists would benefit from this
trade.
This system would also create an incentive for publishers to keep
works available commercially. Works that are available commercially
would not be subject to this license. Thus, publishers could protect
the right to charge whatever they want for content if they kept the
work commercially available. But if they don't keep it available, and
instead, the computer hard disks of fans around the world keep it
alive, then any royalty owed for such copying should be much less than
the amount owed a commercial publisher.
The hard case is content of types A and B, and again, this case is
hard only because the extent of the problem will change over time, as
the technologies for gaining access to content change. The law's
solution should be as flexible as the problem is, understanding that
we are in the middle of a radical transformation in the technology for
delivering and accessing content.
So here's a solution that will at first seem very strange to both sides
in this war, but which upon reflection, I suggest, should make some sense.
Stripped of the rhetoric about the sanctity of property, the basic
claim of the content industry is this: A new technology (the Internet)
has harmed a set of rights that secure copyright. If those rights are to
be protected, then the content industry should be compensated for that
harm. Just as the technology of tobacco harmed the health of millions
of Americans, or the technology of asbestos caused grave illness to
thousands of miners, so, too, has the technology of digital networks
harmed the interests of the content industry.
I love the Internet, and so I don't like likening it to tobacco or
asbestos. But the analogy is a fair one from the perspective of the
law. And it suggests a fair response: Rather than seeking to destroy
the Internet, or the p2p technologies that are currently harming
content providers on the Internet, we should find a relatively simple
way to compensate those who are harmed.
The idea would be a modification of a proposal that has been
floated by Harvard law professor William Fisher.1111
William Fisher, Digital Music: Problems and Possibilities (last
revised: 10 October 2000), available at
link #77 [http://free-culture.cc/notes/]; William
Fisher, Promises to Keep: Technology, Law, and the Future of
Entertainment (forthcoming) (Stanford: Stanford University Press,
2004), ch. 6, available at
link #78 [http://free-culture.cc/notes/]. Professor
Netanel has proposed a related idea that would exempt noncommercial
sharing from the reach of copyright and would establish compensation
to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
Noncommercial Use Levy to Allow Free P2P File Sharing," available at
link #79 [http://free-culture.cc/notes/]. For other proposals, see Lawrence Lessig, "Who's Holding Back
Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on
behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
Chairman of the Senate Foreign Relations Committee, 26 February 2002,
available at
link #80 [http://free-culture.cc/notes/]; Serguei Osokine, A Quick Case for Intellectual Property
Use Fee (IPUF), 3 March 2002, available at
link #81 [http://free-culture.cc/notes/]; Jefferson Graham,
"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
2002, available at
link #82 [http://free-culture.cc/notes/]; Steven M. Cherry, "Getting Copyright Right,"
IEEE Spectrum Online, 1 July 2002, available at
link #83 [http://free-culture.cc/notes/]; Declan
McCullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August
2002, available at
link #84 [http://free-culture.cc/notes/].
Fisher's proposal is very similar to Richard Stallman's proposal for
DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
proportionally, though more popular artists would get more than the less
popular. As is typical with Stallman, his proposal predates the current
debate by about a decade. See
link #85 [http://free-culture.cc/notes/].
Fisher suggests a very clever way around the current impasse of the
Internet.