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  1. 1. This PDF version of Free Culture is licensedunder a Creative Commons license. This license permits non-commercial use of this work, so long as attribution is given. For more information about the license, click the icon above, or visit <>. -- Buy a copy of this book: click here
  2. 2. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S32 FREE CULTURE R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ 4TH PASS PAGES
  3. 3. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ALSO BY LAWRENCE LESSIG 28 29 The Future of Ideas: The Fate of the Commons 30 in a Connected World 31 S32 Code: And Other Laws of Cyberspace R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ 4TH PASS PAGES
  4. 4. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page iv1234567891011121314151617181920212223242526272829 THE PENGUIN PRESS30 NEW YORK31 200432S33R❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ 4TH PASS PAGES
  5. 5. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 FREE CULTURE 24 25 26 HOW BIG MEDIA USES TECHNOLOGY AND HOW BIG MEDIA USES TECHNOLOGY AND THE 27 LAW TO LOCK DOWN CULTURE AND CONTROL THE LAW TO LOCK DOWN CULTURE 28 CREATIVITY CREATIVITY AND CONTROL 29 30 LAWRENCE LESSIG 31 S32 R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ 4TH PASS PAGES
  6. 6. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page vi12 THE P ENGUIN PRESS a member of3 Penguin Group (USA) Inc.4 375 Hudson Street5 New York, New York 100146 Copyright © Lawrence Lessig, 20047 All rights reserved8 Excerpt from an editorial titled “The Coming of Copyright Perpetuity,”9 The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co. Reprinted with permission.10 Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.11 All rights reserved. Reprinted with permission.12 Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.13 Library of Congress Cataloging-in-Publication Data14 Lessig, Lawrence.15 Free culture : how big media uses technology and the law to lock down16 culture and control creativity / Lawrence Lessig. p. cm.17 Includes index.18 ISBN 1-59420-006-8 (hardcover) 1. Intellectual property—United States. 2. Mass media—United States.19 3. Technological innovations—United States. 4. Art—United States. I. Title.20 KF2979.L47 200421 343.73099—dc22 20030632762223 This book is printed on acid-free paper.24 Printed in the United States of America25 1 3 5 7 9 10 8 6 4 226 Designed by Marysarah Quinn27 Without limiting the rights under copyright reserved above, no part of this publication may28 be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or29 by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.3031 The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please pur-32S chase only authorized electronic editions and do not participate in or encourage electronic33R piracy of copyrighted materials. Your support of the author’s rights is appreciated. 4TH PASS PAGES
  7. 7. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page vii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 To Eric Eldred—whose work first drew me 15 to this cause, and for whom 16 it continues still. Co17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S32 R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ 4TH PASS PAGES
  8. 8. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page ix (to navigate this PDF, use the bookmark bar) 1 2 3 4 5 6 7 8 9 10 11 12 CONTENTS 13 14 15 In16 17 PREFACE xiii 18 INTRODUCTION 1 19 20 “PIRACY” 15 21 CHAPTER ONE: Creators 21 22 CHAPTER TWO: “Mere Copyists” 31 23 CHAPTER THREE: Catalogs 48 24 CHAPTER FOUR: “Pirates” 53 25 Film 53 26 Recorded Music 55 27 Radio 58 28 Cable TV 59 29 CHAPTER FIVE: “Piracy” 62 30 Piracy I 63 31 Piracy II 66 S32 R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ <> 4TH PASS PAGES
  9. 9. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page x1 “PROPERTY” 812 CHAPTER SIX: Founders 853 CHAPTER SEVEN: Recorders 954 CHAPTER EIGHT: Transformers 1005 CHAPTER NINE: Collectors 1086 CHAPTER TEN: “Property” 1167 Why Hollywood Is Right 1248 Beginnings 1309 Law: Duration 13310 Law: Scope 13611 Law and Architecture: Reach 13912 Architecture and Law: Force 14713 Market: Concentration 16114 Together 1681516 PUZZLES 17517 CHAPTER ELEVEN: Chimera 17718 CHAPTER TWELVE: Harms 18319 Constraining Creators 18420 Constraining Innovators 18821 Corrupting Citizens 1992223 BALANCES 20924 CHAPTER THIRTEEN: Eldred 21325 CHAPTER FOURTEEN: Eldred II 2482627 CONCLUSION 2572829 AFTERWORD 27330 Us, Now 27631 Rebuilding Freedoms Previously Presumed:32S Examples 27733R Rebuilding Free Culture: One Idea 282❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ 4TH PASS PAGES
  10. 10. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xi Them, Soon 287 1 1. More Formalities 287 2 Registration and Renewal 289 3 Marking 290 4 2. Shorter Terms 292 5 3. Free Use Vs. Fair Use 294 6 4. Liberate the Music—Again 296 7 5. Fire Lots of Lawyers 304 8 9 NOTES 307 10 ACKNOWLEDGMENTS 331 11 INDEX 333 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S32 R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ 4TH PASS PAGES
  11. 11. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xiii 1 2 3 4 5 6 7 8 9 10 11 12 PREFACE 13 14 15 At the end of his review of my first book, Code: And Other Laws of In16 Cyberspace, David Pogue, a brilliant writer and author of countless 17 technical and computer-related texts, wrote this: 18 19 Unlike actual law, Internet software has no capacity to punish. It 20 doesn’t affect people who aren’t online (and only a tiny minority 21 of the world population is). And if you don’t like the Internet’s 22 system, you can always flip off the modem.1 23 24 Pogue was skeptical of the core argument of the book—that soft- 25 ware, or “code,” functioned as a kind of law—and his review suggested 26 the happy thought that if life in cyberspace got bad, we could always 27 “drizzle, drazzle, druzzle, drome”-like simply flip a switch and be back 28 home. Turn off the modem, unplug the computer, and any troubles 29 that exist in that space wouldn’t “affect” us anymore. 30 Pogue might have been right in 1999—I’m skeptical, but maybe. 31 But even if he was right then, the point is not right now: Free Culture S32 is about the troubles the Internet causes even after the modem is turned R33 xiii <> 4TH PASS PAGES
  12. 12. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xiv1 off. It is an argument about how the battles that now rage regarding life2 on-line have fundamentally affected “people who aren’t online.” There3 is no switch that will insulate us from the Internet’s effect.4 But unlike Code, the argument here is not much about the Internet5 itself. It is instead about the consequence of the Internet to a part of6 our tradition that is much more fundamental, and, as hard as this is for7 a geek-wanna-be to admit, much more important.8 That tradition is the way our culture gets made. As I explain in the9 pages that follow, we come from a tradition of “free culture”—not10 “free” as in “free beer” (to borrow a phrase from the founder of the free-11 software movement 2), but “free” as in “free speech,” “free markets,” “free12 trade,” “free enterprise,” “free will,” and “free elections.” A free culture13 supports and protects creators and innovators. It does this directly by14 granting intellectual property rights. But it does so indirectly by limit-15 ing the reach of those rights, to guarantee that follow-on creators and16 innovators remain as free as possible from the control of the past. A free17 culture is not a culture without property, just as a free market is not a18 market in which everything is free. The opposite of a free culture is a19 “permission culture”—a culture in which creators get to create only20 with the permission of the powerful, or of creators from the past.21 If we understood this change, I believe we would resist it. Not “we”22 on the Left or “you” on the Right, but we who have no stake in the23 particular industries of culture that defined the twentieth century.24 Whether you are on the Left or the Right, if you are in this sense dis-25 interested, then the story I tell here will trouble you. For the changes I26 describe affect values that both sides of our political culture deem fun-27 damental.28 We saw a glimpse of this bipartisan outrage in the early summer of29 2003. As the FCC considered changes in media ownership rules that30 would relax limits on media concentration, an extraordinary coalition31 generated more than 700,000 letters to the FCC opposing the change.32S As William Safire described marching “uncomfortably alongside33R CodePink Women for Peace and the National Rifle Association, be- xiv PREFACE 4TH PASS PAGES
  13. 13. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xv tween liberal Olympia Snowe and conservative Ted Stevens,” he for- 1 mulated perhaps most simply just what was at stake: the concentration 2 of power. And as he asked, 3 4 Does that sound unconservative? Not to me. The concentration 5 of power—political, corporate, media, cultural—should be anath- 6 ema to conservatives. The diffusion of power through local con- 7 trol, thereby encouraging individual participation, is the essence 8 of federalism and the greatest expression of democracy.3 9 10 This idea is an element of the argument of Free Culture, though my 11 focus is not just on the concentration of power produced by concentra- 12 tions in ownership, but more importantly, if because less visibly, on the 13 concentration of power produced by a radical change in the effective 14 scope of the law. The law is changing; that change is altering the way our 15 culture gets made; that change should worry you—whether or not you 16 care about the Internet, and whether you’re on Safire’s left or on his right. 17 18 19 The inspiration for the title and for much of the argument of 20 this book comes from the work of Richard Stallman and the Free Soft- 21 ware Foundation. Indeed, as I reread Stallman’s own work, especially 22 the essays in Free Software, Free Society, I realize that all of the theoret- 23 ical insights I develop here are insights Stallman described decades 24 ago. One could thus well argue that this work is “merely” derivative. 25 I accept that criticism, if indeed it is a criticism. The work of a 26 lawyer is always derivative, and I mean to do nothing more in this book 27 than to remind a culture about a tradition that has always been its own. 28 Like Stallman, I defend that tradition on the basis of values. Like 29 Stallman, I believe those are the values of freedom. And like Stallman, 30 I believe those are values of our past that will need to be defended in 31 our future. A free culture has been our past, but it will only be our fu- S32 ture if we change the path we are on right now. R33 PREFACE xv <> 4TH PASS PAGES
  14. 14. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xvi1 Like Stallman’s arguments for free software, an argument for free2 culture stumbles on a confusion that is hard to avoid, and even harder3 to understand. A free culture is not a culture without property; it is not4 a culture in which artists don’t get paid. A culture without property, or5 in which creators can’t get paid, is anarchy, not freedom. Anarchy is not6 what I advance here.7 Instead, the free culture that I defend in this book is a balance be-8 tween anarchy and control. A free culture, like a free market, is filled9 with property. It is filled with rules of property and contract that get10 enforced by the state. But just as a free market is perverted if its prop-11 erty becomes feudal, so too can a free culture be queered by extremism12 in the property rights that define it. That is what I fear about our cul-13 ture today. It is against that extremism that this book is written.14151617181920212223242526272829303132S33R xvi PREFACE 4TH PASS PAGES
  15. 15. 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xvii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S32 FREE CULTURE R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ 4TH PASS PAGES
  16. 16. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 1 1 2 3 4 5 6 7 8 9 10 11 12 INTRODUCTION 13 14 15 On December 17 1903, on a windy North Carolina beach for just , In16 shy of one hundred seconds, the Wright brothers demonstrated that a 17 heavier-than-air, self-propelled vehicle could fly. The moment was elec- 18 tric and its importance widely understood. Almost immediately, there 19 was an explosion of interest in this newfound technology of manned 20 flight, and a gaggle of innovators began to build upon it. 21 At the time the Wright brothers invented the airplane, American 22 law held that a property owner presumptively owned not just the sur- 23 face of his land, but all the land below, down to the center of the earth, 24 and all the space above, to “an indefinite extent, upwards.”1 For many 25 years, scholars had puzzled about how best to interpret the idea that 26 rights in land ran to the heavens. Did that mean that you owned the 27 stars? Could you prosecute geese for their willful and regular trespass? 28 Then came airplanes, and for the first time, this principle of Amer- 29 ican law—deep within the foundations of our tradition, and acknowl- 30 edged by the most important legal thinkers of our past—mattered. If 31 my land reaches to the heavens, what happens when United flies over S32 my field? Do I have the right to banish it from my property? Am I al- R33 1 4TH PASS PAGES
  17. 17. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 21 lowed to enter into an exclusive license with Delta Airlines? Could we2 set up an auction to decide how much these rights are worth?3 In 1945, these questions became a federal case. When North Car-4 olina farmers Thomas Lee and Tinie Causby started losing chickens5 because of low-flying military aircraft (the terrified chickens appar-6 ently flew into the barn walls and died), the Causbys filed a lawsuit say-7 ing that the government was trespassing on their land. The airplanes,8 of course, never touched the surface of the Causbys’ land. But if, as9 Blackstone, Kent, and Coke had said, their land reached to “an indefi-10 nite extent, upwards,” then the government was trespassing on their11 property, and the Causbys wanted it to stop.12 The Supreme Court agreed to hear the Causbys’ case. Congress had13 declared the airways public, but if one’s property really extended to the14 heavens, then Congress’s declaration could well have been an unconsti-15 tutional “taking” of property without compensation. The Court ac-16 knowledged that “it is ancient doctrine that common law ownership of17 the land extended to the periphery of the universe.” But Justice Douglas18 had no patience for ancient doctrine. In a single paragraph, hundreds of19 years of property law were erased. As he wrote for the Court,2021 [The] doctrine has no place in the modern world. The air is a22 public highway, as Congress has declared. Were that not true,23 every transcontinental flight would subject the operator to count-24 less trespass suits. Common sense revolts at the idea. To recognize25 such private claims to the airspace would clog these highways, se-26 riously interfere with their control and development in the public27 interest, and transfer into private ownership that to which only28 the public has a just claim.22930 “Common sense revolts at the idea.”31 This is how the law usually works. Not often this abruptly or impa-32S tiently, but eventually, this is how it works. It was Douglas’s style not to33R dither. Other justices would have blathered on for pages to reach the 2 FREE CULTURE <> 4TH PASS PAGES
  18. 18. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 3 conclusion that Douglas holds in a single line: “Common sense revolts 1 at the idea.” But whether it takes pages or a few words, it is the special 2 genius of a common law system, as ours is, that the law adjusts to the 3 technologies of the time. And as it adjusts, it changes. Ideas that were 4 as solid as rock in one age crumble in another. 5 Or at least, this is how things happen when there’s no one powerful 6 on the other side of the change. The Causbys were just farmers. And 7 though there were no doubt many like them who were upset by the 8 growing traffic in the air (though one hopes not many chickens flew 9 themselves into walls), the Causbys of the world would find it very 10 hard to unite and stop the idea, and the technology, that the Wright 11 brothers had birthed. The Wright brothers spat airplanes into the 12 technological meme pool; the idea then spread like a virus in a chicken 13 coop; farmers like the Causbys found themselves surrounded by “what 14 seemed reasonable” given the technology that the Wrights had pro- 15 duced. They could stand on their farms, dead chickens in hand, and 16 shake their fists at these newfangled technologies all they wanted. 17 They could call their representatives or even file a lawsuit. But in the 18 end, the force of what seems “obvious” to everyone else—the power of 19 “common sense”—would prevail. Their “private interest” would not be 20 allowed to defeat an obvious public gain. 21 22 23 Edwin Howard Armstrong is one of America’s forgotten inventor 24 geniuses. He came to the great American inventor scene just after the 25 titans Thomas Edison and Alexander Graham Bell. But his work in 26 the area of radio technology was perhaps the most important of any 27 single inventor in the first fifty years of radio. He was better educated 28 than Michael Faraday, who as a bookbinder’s apprentice had discov- 29 ered electric induction in 1831. But he had the same intuition about 30 how the world of radio worked, and on at least three occasions, Arm- 31 strong invented profoundly important technologies that advanced our S32 understanding of radio. R33 INTRODUCTION 3 4TH PASS PAGES
  19. 19. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 41 On the day after Christmas, 1933, four patents were issued to Arm-2 strong for his most significant invention—FM radio. Until then, con-3 sumer radio had been amplitude-modulated (AM) radio. The theorists4 of the day had said that frequency-modulated (FM) radio could never5 work. They were right about FM radio in a narrow band of spectrum.6 But Armstrong discovered that frequency-modulated radio in a wide7 band of spectrum would deliver an astonishing fidelity of sound, with8 much less transmitter power and static.9 On November 5, 1935, he demonstrated the technology at a meet-10 ing of the Institute of Radio Engineers at the Empire State Building in11 New York City. He tuned his radio dial across a range of AM stations,12 until the radio locked on a broadcast that he had arranged from seven-13 teen miles away. The radio fell totally silent, as if dead, and then with a14 clarity no one else in that room had ever heard from an electrical de-15 vice, it produced the sound of an announcer’s voice: “This is amateur16 station W2AG at Yonkers, New York, operating on frequency modu-17 lation at two and a half meters.”18 The audience was hearing something no one had thought possible:1920 A glass of water was poured before the microphone in Yonkers; it21 sounded like a glass of water being poured. . . . A paper was22 crumpled and torn; it sounded like paper and not like a crackling23 forest fire. . . . Sousa marches were played from records and a pi-24 ano solo and guitar number were performed. . . . The music was25 projected with a live-ness rarely if ever heard before from a radio26 “music box.”32728 As our own common sense tells us, Armstrong had discovered a29 vastly superior radio technology. But at the time of his invention, Arm-30 strong was working for RCA. RCA was the dominant player in the31 then dominant AM radio market. By 1935, there were a thousand radio32S stations across the United States, but the stations in large cities were all33R owned by a handful of networks. 4 FREE CULTURE <> 4TH PASS PAGES
  20. 20. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 5 RCA’s president, David Sarnoff, a friend of Armstrong’s, was eager 1 that Armstrong discover a way to remove static from AM radio. So 2 Sarnoff was quite excited when Armstrong told him he had a device 3 that removed static from “radio.” But when Armstrong demonstrated 4 his invention, Sarnoff was not pleased. 5 6 I thought Armstrong would invent some kind of a filter to remove 7 static from our AM radio. I didn’t think he’d start a revolution— 8 start up a whole damn new industry to compete with RCA.4 9 10 Armstrong’s invention threatened RCA’s AM empire, so the com- 11 pany launched a campaign to smother FM radio. While FM may have 12 been a superior technology, Sarnoff was a superior tactician. As one au- 13 thor described, 14 15 The forces for FM, largely engineering, could not overcome the 16 weight of strategy devised by the sales, patent, and legal offices 17 to subdue this threat to corporate position. For FM, if allowed to 18 develop unrestrained, posed . . . a complete reordering of radio 19 power . . . and the eventual overthrow of the carefully restricted 20 AM system on which RCA had grown to power.5 21 22 RCA at first kept the technology in house, insisting that further 23 tests were needed. When, after two years of testing, Armstrong grew 24 impatient, RCA began to use its power with the government to stall 25 FM radio’s deployment generally. In 1936, RCA hired the former head 26 of the FCC and assigned him the task of assuring that the FCC assign 27 spectrum in a way that would castrate FM—principally by moving FM 28 radio to a different band of spectrum. At first, these efforts failed. But 29 when Armstrong and the nation were distracted by World War II, 30 RCA’s work began to be more successful. Soon after the war ended, the 31 FCC announced a set of policies that would have one clear effect: FM S32 radio would be crippled. As Lawrence Lessing described it, R33 INTRODUCTION 5 4TH PASS PAGES
  21. 21. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 61 The series of body blows that FM radio received right after the2 war, in a series of rulings manipulated through the FCC by the3 big radio interests, were almost incredible in their force and devi-4 ousness.656 To make room in the spectrum for RCA’s latest gamble, television,7 FM radio users were to be moved to a totally new spectrum band. The8 power of FM radio stations was also cut, meaning FM could no longer9 be used to beam programs from one part of the country to another.10 (This change was strongly supported by AT&T, because the loss of11 FM relaying stations would mean radio stations would have to buy12 wired links from AT&T.) The spread of FM radio was thus choked, at13 least temporarily.14 Armstrong resisted RCA’s efforts. In response, RCA resisted Arm-15 strong’s patents. After incorporating FM technology into the emerging16 standard for television, RCA declared the patents invalid—baselessly,17 and almost fifteen years after they were issued. It thus refused to pay18 him royalties. For six years, Armstrong fought an expensive war of lit-19 igation to defend the patents. Finally, just as the patents expired, RCA20 offered a settlement so low that it would not even cover Armstrong’s21 lawyers’ fees. Defeated, broken, and now broke, in 1954 Armstrong22 wrote a short note to his wife and then stepped out of a thirteenth-23 story window to his death.24 This is how the law sometimes works. Not often this tragically, and25 rarely with heroic drama, but sometimes, this is how it works. From the26 beginning, government and government agencies have been subject27 to capture. They are more likely captured when a powerful interest is28 threatened by either a legal or technical change. That powerful interest29 too often exerts its influence within the government to get the govern-30 ment to protect it. The rhetoric of this protection is of course always31 public spirited; the reality is something different. Ideas that were as32S solid as rock in one age, but that, left to themselves, would crumble in33R 6 FREE CULTURE <> 4TH PASS PAGES
  22. 22. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 7 another, are sustained through this subtle corruption of our political 1 process. RCA had what the Causbys did not: the power to stifle the ef- 2 fect of technological change. 3 4 5 There’s no single inventor of the Internet. Nor is there any good 6 date upon which to mark its birth. Yet in a very short time, the Inter- 7 net has become part of ordinary American life. According to the Pew 8 Internet and American Life Project, 58 percent of Americans had ac- 9 cess to the Internet in 2002, up from 49 percent two years before.7 10 That number could well exceed two thirds of the nation by the end 11 of 2004. 12 As the Internet has been integrated into ordinary life, it has 13 changed things. Some of these changes are technical—the Internet has 14 made communication faster, it has lowered the cost of gathering data, 15 and so on. These technical changes are not the focus of this book. They 16 are important. They are not well understood. But they are the sort of 17 thing that would simply go away if we all just switched the Internet off. 18 They don’t affect people who don’t use the Internet, or at least they 19 don’t affect them directly. They are the proper subject of a book about 20 the Internet. But this is not a book about the Internet. 21 Instead, this book is about an effect of the Internet beyond the In- 22 ternet itself: an effect upon how culture is made. My claim is that the 23 Internet has induced an important and unrecognized change in that 24 process. That change will radically transform a tradition that is as old as 25 the Republic itself. Most, if they recognized this change, would reject 26 it. Yet most don’t even see the change that the Internet has introduced. 27 We can glimpse a sense of this change by distinguishing between 28 commercial and noncommercial culture, and by mapping the law’s reg- 29 ulation of each. By “commercial culture” I mean that part of our culture 30 that is produced and sold or produced to be sold. By “noncommercial 31 culture” I mean all the rest. When old men sat around parks or on S32 R33 INTRODUCTION 7 4TH PASS PAGES
  23. 23. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 81 street corners telling stories that kids and others consumed, that was2 noncommercial culture. When Noah Webster published his “Reader,”3 or Joel Barlow his poetry, that was commercial culture.4 At the beginning of our history, and for just about the whole of our5 tradition, noncommercial culture was essentially unregulated. Of6 course, if your stories were lewd, or if your song disturbed the peace,7 then the law might intervene. But the law was never directly concerned8 with the creation or spread of this form of culture, and it left this cul-9 ture “free.” The ordinary ways in which ordinary individuals shared and10 transformed their culture—telling stories, reenacting scenes from plays11 or TV, participating in fan clubs, sharing music, making tapes—were12 left alone by the law.13 The focus of the law was on commercial creativity. At first slightly,14 then quite extensively, the law protected the incentives of creators by15 granting them exclusive rights to their creative work, so that they could16 sell those exclusive rights in a commercial marketplace.8 This is also, of17 course, an important part of creativity and culture, and it has become18 an increasingly important part in America. But in no sense was it dom-19 inant within our tradition. It was instead just one part, a controlled20 part, balanced with the free.21 This rough divide between the free and the controlled has now22 been erased.9 The Internet has set the stage for this erasure and,23 pushed by big media, the law has now affected it. For the first time in24 our tradition, the ordinary ways in which individuals create and share25 culture fall within the reach of the regulation of the law, which has ex-26 panded to draw within its control a vast amount of culture and crea-27 tivity that it never reached before. The technology that preserved the28 balance of our history—between uses of our culture that were free and29 uses of our culture that were only upon permission—has been undone.30 The consequence is that we are less and less a free culture, more and31 more a permission culture.32S This change gets justified as necessary to protect commercial cre-33R 8 FREE CULTURE <> 4TH PASS PAGES
  24. 24. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 9 ativity. And indeed, protectionism is precisely its motivation. But the 1 protectionism that justifies the changes that I will describe below is not 2 the limited and balanced sort that has defined the law in the past. This 3 is not a protectionism to protect artists. It is instead a protectionism 4 to protect certain forms of business. Corporations threatened by the 5 potential of the Internet to change the way both commercial and 6 noncommercial culture are made and shared have united to induce 7 lawmakers to use the law to protect them. It is the story of RCA and 8 Armstrong; it is the dream of the Causbys. 9 For the Internet has unleashed an extraordinary possibility for many 10 to participate in the process of building and cultivating a culture that 11 reaches far beyond local boundaries. That power has changed the mar- 12 ketplace for making and cultivating culture generally, and that change 13 in turn threatens established content industries. The Internet is thus to 14 the industries that built and distributed content in the twentieth cen- 15 tury what FM radio was to AM radio, or what the truck was to the 16 railroad industry of the nineteenth century: the beginning of the end, 17 or at least a substantial transformation. Digital technologies, tied to the 18 Internet, could produce a vastly more competitive and vibrant market 19 for building and cultivating culture; that market could include a much 20 wider and more diverse range of creators; those creators could produce 21 and distribute a much more vibrant range of creativity; and depending 22 upon a few important factors, those creators could earn more on average 23 from this system than creators do today—all so long as the RCAs of our 24 day don’t use the law to protect themselves against this competition. 25 Yet, as I argue in the pages that follow, that is precisely what is hap- 26 pening in our culture today. These modern-day equivalents of the early 27 twentieth-century radio or nineteenth-century railroads are using their 28 power to get the law to protect them against this new, more efficient, 29 more vibrant technology for building culture. They are succeeding in 30 their plan to remake the Internet before the Internet remakes them. 31 It doesn’t seem this way to many. The battles over copyright and the S32 R33 INTRODUCTION 9 4TH PASS PAGES
  25. 25. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 101 Internet seem remote to most. To the few who follow them, they seem2 mainly about a much simpler brace of questions—whether “piracy” will3 be permitted, and whether “property” will be protected. The “war” that4 has been waged against the technologies of the Internet—what Mo-5 tion Picture Association of America (MPAA) president Jack Valenti6 calls his “own terrorist war”10—has been framed as a battle about the7 rule of law and respect for property. To know which side to take in this8 war, most think that we need only decide whether we’re for property or9 against it.10 If those really were the choices, then I would be with Jack Valenti11 and the content industry. I, too, am a believer in property, and espe-12 cially in the importance of what Mr. Valenti nicely calls “creative prop-13 erty.” I believe that “piracy” is wrong, and that the law, properly tuned,14 should punish “piracy,” whether on or off the Internet.15 But those simple beliefs mask a much more fundamental question16 and a much more dramatic change. My fear is that unless we come to see17 this change, the war to rid the world of Internet “pirates” will also rid our18 culture of values that have been integral to our tradition from the start.19 These values built a tradition that, for at least the first 180 years of20 our Republic, guaranteed creators the right to build freely upon their21 past, and protected creators and innovators from either state or private22 control. The First Amendment protected creators against state control.23 And as Professor Neil Netanel powerfully argues,11 copyright law, prop-24 erly balanced, protected creators against private control. Our tradition25 was thus neither Soviet nor the tradition of patrons. It instead carved out26 a wide berth within which creators could cultivate and extend our culture.27 Yet the law’s response to the Internet, when tied to changes in the28 technology of the Internet itself, has massively increased the effective29 regulation of creativity in America. To build upon or critique the cul-30 ture around us one must ask, Oliver Twist–like, for permission first.31 Permission is, of course, often granted—but it is not often granted to32S the critical or the independent. We have built a kind of cultural nobil-33R 10 FREE CULTURE <> 4TH PASS PAGES
  26. 26. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 11 ity; those within the noble class live easily; those outside it don’t. But it 1 is nobility of any form that is alien to our tradition. 2 The story that follows is about this war. Is it not about the “central- 3 ity of technology” to ordinary life. I don’t believe in gods, digital or 4 otherwise. Nor is it an effort to demonize any individual or group, for 5 neither do I believe in a devil, corporate or otherwise. It is not a moral- 6 ity tale. Nor is it a call to jihad against an industry. 7 It is instead an effort to understand a hopelessly destructive war in- 8 spired by the technologies of the Internet but reaching far beyond its 9 code. And by understanding this battle, it is an effort to map peace. 10 There is no good reason for the current struggle around Internet tech- 11 nologies to continue. There will be great harm to our tradition and 12 culture if it is allowed to continue unchecked. We must come to un- 13 derstand the source of this war. We must resolve it soon. 14 15 16 Like the Causbys’ battle, this war is, in part, about “property.” 17 The property of this war is not as tangible as the Causbys’, and no 18 innocent chicken has yet to lose its life. Yet the ideas surrounding this 19 “property” are as obvious to most as the Causbys’ claim about the sa- 20 credness of their farm was to them. We are the Causbys. Most of us 21 take for granted the extraordinarily powerful claims that the owners of 22 “intellectual property” now assert. Most of us, like the Causbys, treat 23 these claims as obvious. And hence we, like the Causbys, object when 24 a new technology interferes with this property. It is as plain to us as it 25 was to them that the new technologies of the Internet are “trespassing” 26 upon legitimate claims of “property.” It is as plain to us as it was to 27 them that the law should intervene to stop this trespass. 28 And thus, when geeks and technologists defend their Armstrong or 29 Wright brothers technology, most of us are simply unsympathetic. Com- 30 mon sense does not revolt. Unlike in the case of the unlucky Causbys, 31 common sense is on the side of the property owners in this war. Unlike S32 R33 INTRODUCTION 11 4TH PASS PAGES
  27. 27. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 121 the lucky Wright brothers, the Internet has not inspired a revolution2 on its side.3 My hope is to push this common sense along. I have become in-4 creasingly amazed by the power of this idea of intellectual property5 and, more importantly, its power to disable critical thought by policy6 makers and citizens. There has never been a time in our history when7 more of our “culture” was as “owned” as it is now. And yet there has8 never been a time when the concentration of power to control the uses9 of culture has been as unquestioningly accepted as it is now.10 The puzzle is, Why?11 Is it because we have come to understand a truth about the value12 and importance of absolute property over ideas and culture? Is it be-13 cause we have discovered that our tradition of rejecting such an ab-14 solute claim was wrong?15 Or is it because the idea of absolute property over ideas and culture16 benefits the RCAs of our time and fits our own unreflective intuitions?17 Is the radical shift away from our tradition of free culture an instance18 of America correcting a mistake from its past, as we did after a bloody19 war with slavery, and as we are slowly doing with inequality? Or is the20 radical shift away from our tradition of free culture yet another example21 of a political system captured by a few powerful special interests?22 Does common sense lead to the extremes on this question because23 common sense actually believes in these extremes? Or does common24 sense stand silent in the face of these extremes because, as with Arm-25 strong versus RCA, the more powerful side has ensured that it has the26 more powerful view?27 I don’t mean to be mysterious. My own views are resolved. I believe28 it was right for common sense to revolt against the extremism of the29 Causbys. I believe it would be right for common sense to revolt against30 the extreme claims made today on behalf of “intellectual property.”31 What the law demands today is increasingly as silly as a sheriff arrest-32S ing an airplane for trespass. But the consequences of this silliness will33R be much more profound. 12 FREE CULTURE <> 4TH PASS PAGES
  28. 28. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 13 1 2 The struggle that rages just now centers on two ideas: “piracy” and 3 “property.” My aim in this book’s next two parts is to explore these two 4 ideas. 5 My method is not the usual method of an academic. I don’t want to 6 plunge you into a complex argument, buttressed with references to ob- 7 scure French theorists—however natural that is for the weird sort we 8 academics have become. Instead I begin in each part with a collection 9 of stories that set a context within which these apparently simple ideas 10 can be more fully understood. 11 The two sections set up the core claim of this book: that while the 12 Internet has indeed produced something fantastic and new, our gov- 13 ernment, pushed by big media to respond to this “something new,” is 14 destroying something very old. Rather than understanding the changes 15 the Internet might permit, and rather than taking time to let “common 16 sense” resolve how best to respond, we are allowing those most threat- 17 ened by the changes to use their power to change the law—and more 18 importantly, to use their power to change something fundamental about 19 who we have always been. 20 We allow this, I believe, not because it is right, and not because 21 most of us really believe in these changes. We allow it because the in- 22 terests most threatened are among the most powerful players in our 23 depressingly compromised process of making law. This book is the 24 story of one more consequence of this form of corruption—a conse- 25 quence to which most of us remain oblivious. 26 27 28 29 30 31 S32 R33 INTRODUCTION 13 4TH PASS PAGES
  29. 29. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 “PIRACY” S32 R33❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❙ ❚❘ ❘ ❙ ❚❘ ❙ ❚ ❙❚❘ ❙ ❚❘ ❙ ❚ 4TH PASS PAGES
  30. 30. 14773_01_1-174_r9jm.qxd 2/10/04 3:51 PM Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Since the inception of the law regulating creative property, there Po17 has been a war against “piracy.” The precise contours of this concept, 18 “piracy,” are hard to sketch, but the animating injustice is easy to cap- 19 ture. As Lord Mansfield wrote in a case that extended the reach of 20 English copyright law to include sheet music, 21 22 A person may use the copy by playing it, but he has no right to 23 rob the author of the profit, by multiplying copies and disposing 24 of them for his own use.1 25 26 Today we are in the middle of another “war” against “piracy.” The 27 Internet has provoked this war. The Internet makes possible the effi- 28 cient spread of content. Peer-to-peer (p2p) file sharing is among the 29 most efficient of the efficient technologies the Internet enables. Using 30 distributed intelligence, p2p systems facilitate the easy spread of con- 31 tent in a way unimagined a generation ago. S32 R33 17 4TH PASS PAGES