A Great Idea Lives Forever. Shouldn’t Its CopyrightMARK HELPRIN.docx

A Great Idea Lives Forever. Shouldn’t Its Copyright?
MARK HELPRINMAY 20, 2007
Charlottesville, Va.
WHAT if, after you had paid the taxes on earnings with which
you built a house, sales taxes on the materials, real estate taxes
during your life, and inheritance taxes at your death, the
government would eventually commandeer it entirely? This
does not happen in our society ... to houses. Or to businesses.
Were you to have ushered through the many gates of taxation a
flour mill, travel agency or newspaper, they would not suffer
total confiscation.
Once the state has dipped its enormous beak into the stream of
your wealth and possessions they are allowed to flow from one
generation to the next. Though they may be divided and
diminished by inflation, imperfect investment, a proliferation of
descendants and the government taking its share, they are not
simply expropriated.
That is, unless you own a copyright. Were I tomorrow to write
the great American novel (again?), 70 years after my death the
rights to it, though taxed at inheritance, would be stripped from
my children and grandchildren. To the claim that this provision
strikes malefactors of great wealth, one might ask, first, where
the heirs of Sylvia Plath berth their 200-foot yachts. And,
second, why, when such a stiff penalty is not applied to the
owners of Rockefeller Center or Wal-Mart, it is brought to bear
against legions of harmless drudges who, other than a handful
of literary plutocrats (manufacturers, really), are destined by the
nature of things to be no more financially secure than a seal in
the Central Park Zoo.
The answer is that the Constitution states unambiguously that
Congress shall have the power “to promote the Progress of
Science and useful Arts, by securing for limited Times to

Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.” (The italics are mine, the
capitalization was likely James Madison’s.)
It is, then, for the public good. But it might also be for the
public good were Congress to allow the enslavement of foreign
captives and their descendants (this was tried); the seizure of
Bill Gates’s bankbook; or the ruthless suppression of Alec
Baldwin. You can always make a case for the public interest if
you are willing to exclude from common equity those whose
rights you seek to abridge. But we don’t operate that way,
mostly.
Furthermore, one should not envy the perpetrators of
sensationalist trash, but rather admire them, in the hope that
someday, somehow, without prostituting, debasing and
degrading oneself while recklessly destroying what is left of the
literary culture, one might enjoy a fraction of their wealth. They
represent, however, only a small fraction of writers, and their
good fortune is a poor excuse for seizing either their property or
that of their leaner colleagues.
Photo
And Barnes & Noble is able to publish price-reduced non-
copyrighted works not so much because it saves the 10 percent
to 15 percent of revenue that would go to the gruel-eating
authors, but because it saves the 50 percent that would go to the
publishers. Booksellers that publish their own titles benefit not
from escaping the author’s copyright, but the previous
publisher’s exercise of a grant of rights (limited, authors take
note, to 35 years). “Freeing” a literary work into the public
domain is less a public benefit than a transfer of wealth from
the families of American writers to the executives and
stockholders of various businesses who will continue to profit
from, for example, “The Garden Party,” while the descendants
of Katherine Mansfield will not.

Absent the government’s decree, copyright holders would have
no exclusivity of right at all. Does not then the government’s
giveth support its taketh? By that logic, should other classes of
property not subject to total confiscation therefore be denied the
protection of regulatory agencies, courts, police and the law
itself lest they be subject to expropriation as payment for the
considerable and necessary protections they too enjoy? Should
automobile manufacturers be nationalized after 70 years
because they depend on publicly financed roads? Should
Goldman Sachs be impounded because of the existence of the
Securities and Exchange Commission?
Why would the framers, whose political genius has not been
exceeded, have countenanced such an unfair exception?
Jefferson objected that ideas are, “like fire, expansible over all
space, without lessening their density at any point, and, like the
air in which we breathe, move and have our physical being,
incapable of confinement or exclusive appropriation.”
But ideas are immaterial to the question of copyright. Mozart
and Neil Diamond may have begun with the same idea, but that
a work of art is more than an idea is confirmed by the difference
between the “Soave sia il vento” and “Kentucky Woman.” We
have different words for art and idea because they are two
different things. The flow and proportion of the elements of a
work of art, its subtle engineering, even its surface glosses,
combine substance and style indistinguishably in a creation for
which the right of property is natural and becoming.
And in Jefferson’s era 95 percent of the population drew its
living from the land. Writers and inventors were largely those
who obtained their sustenance from their patrimony or their
mills; their writings or improvements to craft were secondary.
No one except perhaps Hamilton or Franklin might have
imagined that services and intellectual property would become
primary fields of endeavor and the chief engines of the
economy. Now they are, and it is no more rational to deny them
equal status than it would have been to confiscate farms,
ropewalks and other forms of property in the 18th century.

Still, it is the express order of the Constitution, long imprinted
without catastrophe upon the fabric of our history. But given the
grace of the Constitution it is not surprising to find the remedy
within it, in the very words that prohibit the holding of patents
or copyrights in perpetuity: “for limited Times.”
The genius of the framers in making this provision is that it
allows for infinite adjustment. Congress is free to extend at will
the term of copyright. It last did so in 1998, and should do so
again, as far as it can throw. Would it not be just and fair for
those who try to extract a living from the uncertain arts of
writing and composing to be freed from a form of confiscation
not visited upon anyone else? The answer is obvious, and
transcends even justice. No good case exists for the inequality
of real and intellectual property, because no good case can exist
for treating with special disfavor the work of the spirit and the
mind.
Must be Typed, Double Spaced, and no more than 4 pages.
INCLUDE A “YES” OR “NO” OR “PROBABLY” OR
“PROBABLY NOT” ANSWER AT THE BEGINNING OF
YOUR RESPONSE TO EACH QUESTION IN THIS
EXERCISE.
Exercise 3
Select one of the following answers for each question: YES,
NO, PROBABLY, PROBABLY NOT. Explain each answer.
1. Would the killings in the following situations more likely be
voluntary manslaughter than murder?
A. Vince calls Debbie several names that reflect on her ethical
standards and mother’s sexual practices. Debbie becomes irate
and kills Vince.
B. Dean and Jimmy are arguing over a place in the theater line.
They agree to settle the matter by fighting it out. During the
fight Jimmy is killed.
C. Vondra throws a rock at Denise and runs away. The next

days, Denise sees Vondra and kills her. D. Vondra throws a rock
at Denise and runs away. Denise, frustrated at her inability to
obtain revenge against Vondra, sees Xaviera, an innocent
bystander, and kills her.
2. Should the following killings be charged as involuntary
manslaughter?
A. Mark intentionally drops a large rock from a highway
overpass. Distracted by the approaching rock, Wally loses
control of his car on the highway and is killed in the ensuing
crash.
B. Andy is cleaning his gun when the telephone rings. He
leaves the gun on the table while he goes to the adjoining room
to answer the phone. Meanwhile Johnnie, Andy’s four-year-old
son, wanders into the room and takes the gun to play with it; it
discharges, killing Johnnie instantly.
C. Mary is attempting to commit suicide. Rob intervenes to
prevent this, and in the struggle the gun Mary was using
discharges, killing Rob.
3. Can Bill be convicted of battery in the following situations?
A. Bill puts poison in Susan’s drink, and she drinks it.
B. Bill intentionally spits on Susan’s shoe.
C. Bill, driving a car in a highly negligent manner, strikes
Pedestrian. Bill did not intend to injure anyone.
Must be Typed, Double Spaced, and no more than 4 pages.
INCLUDE A “YES” OR “NO” OR “DEPENDS” ANSWER AT
THE BEGINNING OF YOUR RESPONSE TO EACH
QUESTION. WHEN YOU SELECT DEPENDS AS AN
ANSWER MAKE CERTAIN YOU DECLARE WHAT YOUR
RESPONSE ‘DEPENDS UPON.”
Exercise 4
1. Don points a gun at Vivian and pulls the trigger. Unknown to
Don, the gun is defective and will not fire. Is Don guilty of
assault?
2. Danielle attacks Violet and Violet’s face is severely

disfigured. Danielle is charged with mayhem, but at the time of
the trail, two years later, Violet’s face has returned to normal.
Can Danielle be convicted?
3. Dance and Vance are at a party. Both have consumed great
amounts of liquor. Dance passes out, and Vance engages in an
act of intercourse with her while she is unconscious. Is Vance
guilty of rape? (Dance is either a the victim/potential victim or
non-victim)
4. Dennis tells Vanna that unless she submits to intercourse
with him, he will report her to the police as a prostitute. Vanna
submits. Is Dennis guilty of rape?
5. Dunbar tells Veronica that if she will engage in intercourse
with him, he will pay her $150. He does not intend to pay her,
and after the act is complete he refuses to do so. Is Dunbar
guilty of rape?
6. In Deft’s prosecution for rape of Vicky, Deft testifies that
Vicky consented to the intercourse. Vicky testifies for the
prosecution that she did not consent but rather physically
resisted as much as she could. Deft asks the jury to be
instructed that he should be acquitted if the jury determines that
he reasonably believed Vicky consented, whether or not she
actually did. Does the prosecution have a viable argument that
this instruction should not be given?
7. While Slim is walking down a hall in a public building, Bill
moves in front of him and refuses to permit him to proceed. Is
bull guilty of false imprisonment?
8. Doug Delude, as part of an extortion scheme, tells Dupe that
his wife is in the hospital calling for him. Dupe unwilling
accompanies Delude to his car and drives away with him. Is
Delude guilty of kidnapping?
9. D breaks into V’s house and finds her in the kitchen. He
compels her to go into the adjoining room and rapes her there.
Is D guilty of Kidnapping as well as rape?
10. Starkmad and Disgusting rob a bank. During the robbery,
Disgusting becomes attracted to the teller and forces his
attentions upon her, despite Starkmad’s urging to avoid this.

Finally, Starkman strikes Disgustingwith the butt of his gun to
discourage the attack on the teller; the gun discharges
accidentally and kills Disgusting. Is Starkmad guilty of felony
murder?
Both exercises must be included in the same attachment
Who Will Own Your Next Good Idea?
Some corporations want to lock up copyright even tighter. Some
naive intellectuals want to abandon copyright altogether. Where
is a "do-nothing" Congress now that we need one?
· CHARLES C. MANNSEPTEMBER 1998 ISSUE
· Share Tweet … TEXT SIZE
(The online version of this article appears in three parts. Click
here to go to part two. Click here to go to part three.)
ABOUT twelve years ago I walked past a magazine kiosk in
Europe and noticed the words "temple des rats" on the cover of
a French magazine. Rat temple! I was amazed. A few months
before, a friend of mine had traveled to northwestern India to
write about the world's only shrine to humankind's least favorite
rodent. The temple was in a village in the Marusthali Desert.
That two Western journalists should have visited within a few
months of each other stunned me. Naturally, I bought the
magazine.
The article began with a Gallic tirade against the genus Rattus. -
- that sort of thing. Then came the meat: an interview, in Q&A
form, with a "noted American journalist" who had just gone to
the rat temple. The journalist, who was named, was my friend.
No such interview had occurred: the article was a straight
translation, with fake interruptions by the "interviewer" such as
"Vraiment?" and "Mon Dieu!"

I was outraged. To my way of thinking, these French people had
ripped off my friend. I telephoned him immediately; he had the
same reaction. Expletives crackled wildly across the Atlantic.
Reprinting his copyrighted article without permission or
payment was the same, we decided, as kicking down his door
and stealing his CD player.
We were wrong. Although the magazine had done my friend
wrong, what was stolen was not at all like a CD player. CD
players are physical property. Magazine articles are intellectual
property, a different matter entirely. When thieves steal CD
players, the owners no longer have them, and are obviously
worse off.
AUTHOR'S NOTE
A translation is not a copy? Could anyone believe this? In 1853
Harriet Beecher Stowe sued to stop an unauthorized German
translation of Uncle Tom's Cabin -- and lost. Copyright, ruled
Judge Robert Grier, applies only to the "precise words." Calling
a translation "a copy of the original," he opined, is "ridiculous."
Only in 1870 did Congress include translations in the Copyright
Act.
But when my friend's writing was appropriated, he still had the
original manuscript. What, then, was stolen? Because the article
had been translated, not one sentence in the French version
appeared in the original. How could it be considered a copy?

Anomalies like this are why intellectual property has its own set
of laws.
Intellectual property is knowledge or expression that is owned
by someone. It has three customary domains: copyright, patent,
and trademark (a fourth form, trade secrets, is sometimes
included). Copyrighted songs, patented drugs, and trademarked
soft drinks have long been familiar denizens of the American
landscape, but the growth of digital technology has pushed
intellectual property into new territory. Nowadays one might
best define intellectual property as anything that can be sold in
the form of zeroes and ones. It is the primary product of the
Information Age.
All three forms of intellectual property are growing in
importance, but copyright holds pride of place. In legal terms,
copyright governs the right to make copies of a given work. It
awards limited monopolies to creators on their creations: for a
given number of years no one but Walt Disney can sell Mickey
Mouse cartoons without permission. Such monopolies, always
valuable, are increasingly lucrative. For the past twenty years
the copyright industry has grown almost three times as fast as
the economy as a whole, according to the International
Intellectual Property Alliance, a trade group representing film
studios, book publishers, and the like. Last year, the alliance
says, copyrighted material contributed more than $400 billion to
the national economy and was the country's single most
important export.
These figures may actually understate the value of copyright.
Today it is widely believed that personal computers, cable
television, the Internet, and the telephone system are
converging into a giant hose that will spray huge amounts of
data -- intellectual property -- into American living rooms. As
this occurs, according to the conventional scenario, the
economic winners will be those who own the zeroes and ones,

not those who make the equipment that copies, transmits, and
displays them. Because copyright is the mechanism for
establishing ownership, it is increasingly seen as the key to
wealth in the Information Age.
At the same time, the transformation of intellectual property
into electronic form creates new problems. If the cost of
manufacturing and distributing a product falls, economic forces
will drive down its price, too. The Net embodies this principle
to an extreme degree. Manufacturing and distribution costs
collapse almost to nothing online: zeroes and ones can be shot
around the world with a few clicks of a mouse. Hence producers
of digital texts, music, and films will have trouble charging
anything at all for copies of their works -- competitors can
always offer substitutes for less, pushing the price toward the
vanishing point.
In addition, creators must deal with piracy, which is vastly
easier and more effective in the digital environment. People
have long been able to photocopy texts, tape-record music, and
videotape television shows. Such leakage, as copyright lawyers
call it, has existed since the first day a reader lent a
(copyrighted) book to a friend. With the rise of digital media,
the leakage threatens to turn into a gush. To make and distribute
a dozen copies of a videotaped film requires at least two
videocassette recorders, a dozen tapes, padded envelopes and
postage, and considerable patience. And because the copies are
tapes of tapes, the quality suffers. But if the film has been
digitized into a computer file, it can be E-mailed to millions of
people in minutes; because strings of zeroes and ones can be
reproduced with absolute fidelity, the copies are perfect. And
online pirates have no development costs -- they don't even
have to pay for paper or blank cassettes -- so they don't really
have a bottom line. In other words, even as digital technology

drives the potential value of copyright to ever greater heights,
that same technology threatens to make it next to worthless.
This paradox has engendered two reactions. One is to advocate
eliminating copyright altogether. Led by a small but
surprisingly influential cadre of libertarian futurists, anti-
copyrightists believe that the increased ease of copying
effectively obviates the © symbol and all it entails.
"Information wants to be free" -- a phrase apparently coined by
the writer Stewart Brand -- is the apothegm of choice here. In
this view, copyright restricts what people can do with the
intellectual property coming through the wires. Futilely but
dangerously, it tries to fence the electronic frontier. It unjustly
creates monopolies in the basic commodity of the Information
Age. It is a relic of the past and should be expunged.
The other, opposing reaction is to strengthen the hand of
copyright owners. Realizing the growing economic import of
copyright, Congress is rapidly trying to overhaul the nation's
intellectual-property regime. The changes would give copyright
owners more control for longer times; some would make it a
crime to work around copyright-protection schemes. A different
tack is being taken by state governments, which may bypass
copyright altogether by amending the laws governing sales
contracts. If they succeed, copyright owners will be able to ask
individual customers to agree to contracts regulating the zeroes
and ones flowing into their homes.
AUTHOR'S NOTE
"Most people do not realize the extent to which copyright
pervades their lives," says L. Ray Patterson, a professor at the
University of Georgia School of Law and the author of a
standard history of copyright. "They get their education from
copyrighted books, they get their news from copyrighted papers
and TV programs, they get their jobs from copyrighted want
ads, they get their entertainment from copyrighted music and
motion pictures -- every aspect of life is affected by the law of

copyright."
Seinfeld to your computer, please read the following conditions
and terms, paying careful attention to the clauses that forbid
taping or replaying the program even once. After you click
"OK," the transmission will start.
Because I make much of my living from copyright, I find the to-
and-fro fascinating, and have a vested interest in the results.
But issues bigger than the financial status of writers are
involved. Copyright is the regulatory authority for the
marketplace of ideas. It lays out the economic ground rules to
create the hubbub of debate that the Founders believed
necessary for democracy -- one reason that they included
copyright in the Constitution (Article I, Section 8, instructs
Congress to "secur[e] for limited Times to Authors and
Inventors the exclusive Right to their Respective Writings and
Discoveries"). Copyright law allows Michael Jackson to make a
fortune from the Beatles catalogue, and Bill Gates to add to his
untold wealth by licensing electronic reproductions of the
photographs of Ansel Adams. But its real purpose is to foster
ever more ideas and ever more innovation from ever more
diverse sources. When, in 1790, George Washington asked
Congress to enact copyright legislation, he argued that it would
increase the national stock of knowledge. And knowledge, he
said, is "the surest basis of public happiness."
Today the marketplace of ideas is being shaken up by the
competing demands of technology, finance, and law. Large
sums of money are at stake. Change seems inevitable. One way
or another, we will lay a new institutional foundation for
literary culture in the United States. How we do it will play a
big role, according to the logic of the Founders, in determining
our future well-being. It would be comforting to believe that
decisions will be made thoughtfully and well. But little
evidence suggests this is true. Indeed, we may be heading into a
muddle that it will take us a long time to escape.

©
27M A R C H / A P R I L 2 0 1 0 E D U C A U S E r e v i e
ww w w . e d u c a u s e . e d u / e r
By Lawrence Lessig
Getting Our Values around Copyright
This article is based on Lawrence Lessig’s
keynote address at the EDUCAUSE 20 09
Annual Conference, Denver, Colorado,
November 5, 20 09.
plan to make
three observations on the
way to stating an argument
on the way to proposing
what we can do in a debate
that I think educators need
to take more seriously.
STEVE McCRACKEN, © 2010
I
Right
28 E D U C A U S E r e v i e w M A R C H / A P R I L 2 0 1 0
G e tting Our Values around C opyright R ight

Observation #1
When anybody talks about copyright,
we have to remember that there’s an
extraordinarily large elephant in the
room. The “elephant” I mean is this: in
the past, in the history of culture across
the world and in the United States,
copyright had a tiny role. A tiny bit of
the ordinary way in which people en-
gaged with their culture was regulated
by copyright.
In 1994, Jessica Litman noted: “At the
turn of the century [1900], U.S. copy-
right law was technical, inconsistent,
and difficult to understand, but it didn’t
apply to very many people or very many
things. If one were an author or
publisher of books, maps,
charts, paintings, sculpture,
ph o t o g ra ph s , o r s h e e t
music, a playwright or
producer of plays, or a
printer, the copyright
law bore on one’s busi-
ness. [But] booksellers,
piano-roll and phono-
graph record publishers,
m o t i o n p ic t u re p ro d u c -
ers, musicians, scholars,
members of Congress, and
ordinary consumers could
go ab o u t t h e i r b u s i n e s s
without ever encountering
a copyright problem.”1

Then things changed,
radically. Copyright now
reaches across the spec-
trum of ways in which we
engage in our culture. Lit-
man continued: “Ninety
years later, the U.S. copy-
right law is even more tech-
nical, inconsistent, and dif-
ficult to understand; more
importantly, it touches ev-
eryone and everything. . . .
Te ch n o l o g y, h e e d l e s s o f
law, has developed modes
that insert multiple acts of
repro duction and trans -
m i s s i o n — p o te n t ia l ly a c -
tionable events under the
c o p y r i g h t s t a t u t e — i n t o
commonplace daily transactions. Most
of us can no longer spend even an hour
without colliding with the copyright
law.”2
Why the change? The critical thing
to recognize is that there’s a technical
reason for that change—a reason that
ties the architecture of digital technol-
ogy to the architecture of copyright law.
If copyright law, at its core, regulates
something called “copies,” then in the
a n a l o g wo r l d , t h e t u r n - o f- t h e - l a st-
century world that Litman was speaking
about, many uses of culture were copy-
right-free. They didn’t trigger copyright

law because no copy was made.
But in the digital world, practically
all uses of culture produce a copy and
thus trigger copyright. Think about a
physical book in real space. Reading,
giving away, and selling a book are all
uses that are technically unregulated by
the law. To read a book is not a fair use
of the book; it’s a free use of the book
because to read a book is not to produce
a copy. To give someone a book is not a
fair use of the book; in the United States,
it’s a free use of the book because to
give someone a book is not to produce
a copy. To sell a book is not a fair use of
the book; it’s a free use of the book—in
the United States, at least— explicitly
exempted from the regulation of copy-
right law because to sell a book is not to
produce a copy.
These unregulated uses of culture
are then balanced by a set of important
regulated uses that are necessary to
produce the incentives that artists and
creators need in order to produce great
new work. So, to publish a book requires
permission from the copyright owner.
Then, in the American tradition, there
is a thin sliver of exceptions called “fair
uses”—uses that otherwise would have
been regulated by the law but that the
law says have to remain free to ensure
that the right set of incentives we’re
building for our culture are preserved.

E n te r t h e I n te r n e t , wh e re e v e r y
single use produces a copy. What this
means is that the balance between un-
regulated-regulated and fair uses radi-
cally changes. This is merely because
the platform through which we get access
to our culture has changed— changed
radically. It is not because anybody in
Washington was thinking about uses
of culture; it is because the technology
through which we get access to our cul-
ture has changed. That is the elephant in
the room—the elephant we have to keep
in focus as we think about this issue.
Observation #2
Consider the idea of a paradigm case.
The Fourth Amendment to the Con-
stitution of the United States declares:
“The right of the people to be secure in
©
The platform
through which
we get access
to our culture
has changed—
changed
radically.
Mary Stewart
Mary Stewart

their persons, houses, papers, and ef-
fects, against unreasonable searches and
seizures, shall not be violated, and no
Warrants shall issue, but upon probable
cause, supported by Oath or affirmation,
and particularly describing the place to
be searched, and the persons or things
to be seized.” The Fourth Amendment
protects people against unreasonable
searches and seizures. The paradigm
case behind the Fourth Amendment
was the search warrant, which permits
authorities to enter into a building and
search for evidence of a crime. Protec-
tion from trespass was at the core of the
protections that it granted. The framers
of the Fourth Amendment didn’t think
about a technology like wiretapping, of
course. In wiretapping, no one has to
trespass on anybody’s property in order
to effect the search that a wiretap makes
possible. It’s outside the scope of the
paradigm case.
Or think about Article 1, Section
8, Clause 11—the War Powers Clause:
“The Congress shall have power . . . to
declare War.” The paradigm case that
the framers were thinking about at the
time was the kind of war when people

physically gather in order to engage
in a confrontation between two states.
They didn’t think about the dynamic
that would be presented when wars are
simply terrorist acts by non-state actors.
These weren’t within the scope of their
paradigm case.
Or finally, think about Article 1, Sec-
tion 8, Clause 8—the Progress Clause
(also known as the Copyright Clause):
“The Congress shall have power . . . to
promote the Progress of Science and
useful Arts, by securing for limited
Times to Authors . . . the exclusive Right
to their Writings.” This clause too has
come to have a paradigm case. The
paradigm case as this clause is now con-
ceived surrounds professionals. Profes-
sionals depend upon the exclusive right
to control the copies and distribution
of their works as part of their business
model. Their business model focuses
on profit, using copyright as a means
to secure profit . The assumption of
copyright, according to this paradigm, is
that if you don’t secure enough money
to these professionals, we will get less
creativity out of them.
I have nothing against profession-
als. But obviously, not all creators are
the same in this sense. Not all creators
have the same business model. So like

the paradigm of the Fourth Amend-
ment or the paradigm of the War Powers
Clause, the Copyright Clause paradigm
ignores important cases. For example, it
ignores amateur creators—by which I do
not mean amateurish creators. I mean
people who create for the love of what
they create and not for the money. They
are creators too, and their creativity has
been critical for culture in our past.
Aldous Huxley wrote in 1927: “In the
days before machinery men and women
who wanted to amuse themselves were
compelled, in their humble way, to be
artists. Now they sit still and permit
professionals to entertain them by the
aid of machinery. It is difficult to believe
that general artistic culture can flourish
in this atmosphere of passivity.”3
Observation #3
As a law professor, I am a little sur-
prised by the respect that non-lawyers
typically give the law. Because lawyers’
view is one of constant skepticism. We
constantly ask and demand of the law
that it explain to us: How does this make
sense? And we never presume that we
happen to have a body of regulation

that makes sense. We always examine.
Where it does make sense, we say good
for the law, and we encourage people to
follow it. But where it makes no sense,
our perspective is that the law needs to
be changed. This is especially so in the
context of copyright—especially so be-
cause of the radical changes I described
in Observation #1, regarding the scope
and reach of copyright law, which now
is reaching in ways never intended or
planned by the framers of this law. We
should be especially skeptical here.
The Argument
I want to talk about the ecology of cre-
ativity in education. What does it look
like? What is its business model? What
is the ethos of this ecology of creativity?
We all write scholarly articles, and we
want others to copy and distribute them
as broadly as possible. And we don’t
get paid when people copy. Educators’
business model is distribution freely.
Restrictive distribution is inconsistent
with that business model. On the other
hand, although textbook markets and
scholarly books are certainly not the
professional creativity model embod-
ied by entertainers like Britney Spears,
they also are not quite what John Philip
Sousa was romanticizing. They are not
written as large money-makers, but they
are not created for free.
Which rights or which system of

rights for education makes sense is a
much more difficult question. If we
make the system of rights surrounding
education more like the Britney Spears
professional model, then collaboration
will be harder. If we make it more like
the John Philip Sousa amateur model,
incentives for extra types of work will
be weakened. What we need, step one,
©
A model of
copyright that
is appropriate
to one ecology
can be a model
that’s harmful to
another.
A b o u t t w e n t y y e a r s
before Huxley, John Philip
Sousa, speaking at the U.S.
Congress about the phono-
graph, said: “These talking
machines are going to ruin
the ar tistic development
of music in this country.
When I was a boy . . . in
f ro n t o f e v e r y h o u s e i n
the summer evenings you
would find young people
together singing the songs
of the day or the old songs.
Today you hear these infer-
nal machines going night
and day.” Sousa noted: “We

will not have a vocal cord
left. The vocal cords will
be eliminated by a process
of evolution, as was the
tail of man when he came
f r o m t h e a p e .” He r e ’s a
p ro fe s s i o n a l c e l e b rat i n g
the critical importance of
t h e a m ate u r t o ke e p i n g
culture alive and vibrant.
This is his hero: “ young
p e o p l e to ge t h e r s i n g i n g
the songs of the day or the
old songs.”4 And that’s the
p i c t u r e — y o u n g p e o p l e
together—that he wanted
to make sure copyright law
didn’t squelch. These ama-
teurs too are creators. They
have their own ecology, or
business model, of creativ-
ity. And in their business
m o d e l , e xc l u s iv e r i gh t s
make no sense. Their busi-
ness model of sharing and
critiquing and building upon and play-
ing with others’ creativity does not have
excluding at its core. Excluding others
is not how that business model will suc-
ceed. The point here is simply that all
creativity happens within a particular
ecology of creativity. And these ecologies
of creativity have different business
models. A model of copyright that is ap-
propriate to one ecology can be a model

that’s harmful to another.
Mary Stewart
Mary Stewart
is a hybrid of models in the context
of educational creativity—informed
by the technical capacity of digital
technologies.
Next, step two, is if that’s so —if it’s
true that there is a diversity of business
models for creativity, if there’s a differ-
ent ecology for creativity depending
upon the domains within which we are
speaking and acting—then we should
expect to see a certain resistance by
educators to the current regime. We
should be seeing a resistance to the
imperialistic approach of imposing
the Britney Spears model of copyright
upon the educator. We should be see-
ing not a rejection of copyright—that’s
a mistake—but, rather, an approach that
skeptically examines copyright and
that demands proof that this model, as
applied to the worlds we know, makes

sense. If you expect that, however, you
will be very disappointed by what we
in fact see out there in the educational
community. Rather than a resistance to
the demands of one model of copyright,
the past twenty years have increasingly
seen enormous pressure from the top to
embrace this one model. The field has
been captured by an idea—a paradigm,
a foreign import into our domain—of
creativity according to the professional
copyright model, with little resistance
and with too little skepticism.
Which leads to step three: stop it. Stop
believing, stop listening, stop deferring.
Feel entitled to question this system.
Feel entitled to question whether copy-
right law as currently crafted makes
sense for education. This deference
to the people I produce for a living—
lawyers, people who confuse the para-
digm case with the universal case—is
destructive to education. Educators, not
lawyers, need to take responsibility for
that destruction. Educators need to do
a better job of protecting this important
domain of culture.
How would educators do that? Here’s
the question to be asked: If there’s
a business model of education that
depends upon sharing and resources
held in common, that builds upon that
common set of resources, how does

the paradigm case help that business
model? For example, think about aca-
demic journals. How does the paradigm
of the Britney Spears model help here?
The answer differs, of course, depend-
ing upon the context. Academic jour-
nals’ extraordinarily high costs, which
are going through the roof faster than
inflation, don’t matter much to the rich
American universities. But for the rest
of the universities in the United States
and around the world—universities that
don’t consider themselves to be rich—
this is a significant cost. Indeed, around
the world, even the nominal cost of get-
ting access to these journals is prohibi-
tive, blocking the spread of knowledge
globally to people who could
d e p e n d a n d b u i l d u p o n
that knowledge if they had
free and fair access to the
knowledge.
Putting aside edu-
c a t o r s a n d u n iv e r s i -
ties, let’s think about
c it i z e n s . Th e s e c o s t s
are especially destruc-
tive for citizens. I felt this
quite directly not long after
my third child was born.
Three days after she was
born, there was a fear that
she had jaundice. She fell
into a severe state of leth-
argy, and the doctor said:

“You’ve got to get her to the
hospital.” I had been doing
some research, of course,
b e c o m i n g fe a r f u l a s t h e
doctor became increasingly
concerned that she might
have this extraordinarily
d e s t r u c t i v e c o n d i t i o n ,
which causes brain damage.
I’d gone to the American
Family Physician website,
w h i c h p e r m i t s u s e r s t o
d o w n l o a d a r t ic l e s ab o u t
scientific and medical is-
sues for free. I downloaded
an article and printed it out,
and I had it in my hand as I
raced to the hospital with my three-day-
old daughter.
As I’m sitting there at the hospital,
waiting for my daughter to be seen by
the doctors, I’m reading the article. I
come to table four of the article, and I
read the following: “The rightsholder
did not grant rights to reproduce this
item in electronic media. For the miss-
ing item, see the original print version
of this publication.” I thought: This is
astonishing. This is not Britney Spears.
This is not the crown jewel of the MGM
Film Enterprise. This is a scientific jour-
nal talking about a matter of health and
science. That it would already have built
into its system a way to control whether

I get access to a graph—the criti-
cal graph that I need to
©
Feel entitled
to question
whether
copyright law as
currently crafted
makes sense for
education.
see in order to have some confidence
about my daughter’s place on this fear-
ful scale—is extraordinary. Who would
think of building and deploying such a
system? Why would it have made sense?
Of course, there are plenty of impor-
tant contexts where we need this kind of
control. Britney’s is one. There, it might
make sense. But here? What are the
costs here? There are significant costs.
What are the benefits? Do the benefits
of this system of control exceed the
costs? Is the proprietary model one that
makes sense here? I believe it made per-
fect sense in the past. Then, the econo-
mies of production of physical journals

necessitated that type of control. If it
was evil, then it was a necessary evil. But
the thing to remember about necessary
evils is that they are still evil. If we can
avoid them, we should avoid them.
And that’s exactly, of course, what
the open-access movement in scholarly
publishing is trying to do: to replicate
the good of the old system—peer review
of scholarship —while securing
access to anybody, across
the world, who wants ac-
cess to this knowledge;
and to avoid the evil, to
avoid the restrictions
on access, which make
no sense to the under-
lying business mo del
o f s ch o l a r s h i p, wh ich
i s u n i v e r s a l a c c e s s t o
knowledge. That’s the mis-
sion of the Public Library
of Science (PLoS), on whose
board I used to sit . And
there are many others who
are also trying to do this.
The question to be asked
is whether the system makes
sense. I guarantee that the
p e o p l e wh o a r e d r iv i n g
the current debate are not
asking this question. In-
deed, we’ve seen the conse-
quence of their unthinking

work before. Let me give an
example.
Th i n k ab o u t t wo b it s
of culture, both very important to our
culture. Number one is printed books.
The funny thing about books is not only
that we have access to every single book
ever published but also that we have
this access for free, through libraries,
or almost for free, through used book-
stores. There is an enormous market of
creativity here, an ecology of creativity,
that preserves access to this extraor-
dinarily important bit of our culture
unhindered by the costs of a copyright
system.
Compare that with another bit of cul-
ture: film. Film is a compilation work—
meaning that it’s produced by having a
bunch of different copyrighted works
folded into it: the story, the images, the
music. To use a compilation work or to
reuse a compilation work is contingent
upon whether one can get the permis-
sions from the copyright holders to the
component parts. For example, in the
very beginning of CD-ROM technol-
ogy, the people at one company,
S ta r wav e, d e c i d e d t hat
they wanted to celebrate the career of
Clint Eastwood. They wanted to pro-

duce a CD-ROM that would include
30-second clips from every film that
Clint Eastwood ever made or appeared
in. They had a team of lawyers who were
assigned with the task of clearing the
rights to include the 30-second clips on
the CD-ROM. It took those lawyers one
year of work to clear all the rights neces-
sary to enable that simple compilation
to be made to celebrate the work of Clint
Eastwood.
Or think about a more important
problem, in my view, in the context of
documentaries. Charles Guggenheim,
one of the most important documentar-
ians from the twentieth century, made
an extraordinary film documenting the
work of Robert Kennedy. Produced two
months after Kennedy’s assassination,
Robert Kennedy Remembered was shown
only at the 1968 Democratic Party Con-
vention. The documentarian’s daughter,
Grace Guggenheim, a filmmaker, is
the curator of Charles Guggenheim’s
work. For the past twenty years, Grace
has been engaged in a project of nego-
tiations to secure the rights to move her
father’s work onto a DVD platform to
make it accessible.
Why would it take so long? Because
documentaries are often make up of
snippets of other people’s works. Film-
makers, when they made those works,
took the advice of their lawyers. And

their lawyers insisted on licenses that
covered almost all future uses. This
played out dramatically in the con-
text of the extraordinary television
documentary series Eyes on the Prize, an
account described by one filmmaker
as “virtually the only audio-visual pur-
veyor of the history of the civil rights
movement in America.”5 The makers of
the documentary estimated that it was
going to cost up to $500,000 to reclear
the rights necessary to make the docu-
mentary accessible in DVD platform for
access by future generations.
What this means is that the vast
majority of documentaries from the
twentieth century will literally disappear
©
The vast
majority of
documentaries
from the
twentieth
century
will literally
disappear from
our culture.
Mary Stewart

from our culture. Because they exist in
nitrate-based stock film, they will turn
to dust long before anybody works out
how to get around this enormous legal
thicket of rights—a task necessary sim-
ply to clear access to make it possible
to preserve documentaries for future
generations.
What is the difference between these
two bits of culture? The difference is
the regime of rights under which each
was created. When each was created,
both regimes were perfectly fine. But
the regimes are radically different. We
need to act now to avoid the thicket of
rights obstructing access to films and
documentaries.
What We Can Do
There are three possible things we can
do in response to the copyright problem.
Number one, we can think about changing
the law. I’m sorry to report that I think
this is a hopeless strategy today. If I’m
right and if it is indeed hopeless to think
about changing the law, then we need to
move beyond that and think about what
else we could be doing.
Number two, the second thing we can
do is to change our norms, our practices.
That was the objective of the project

that a bunch of us founded in 20 01:
Creative Commons. The Creative Com-
mons project has, as its ideal, identifying
simple ways for authors to mark their
content with the freedoms they intend
their content to carry. So, rather than the
“all rights reserved” copyright model of
Britney Spears, this is a kind of “some
rights reserved” copyright model in
which the users can see more clearly the
freedoms they have with the creative
work and the restrictions that the creator
continues to insist upon. The freedoms
could be to share the work, or to remix
the work, or both. The restrictions could
be to use the work only for noncommer-
cial purposes, or only if the user shares
alike (giving others the freedoms inher-
ited), or both. The creator can mix these
freedoms and restrictions, resulting in
six licenses, which come in three layers.
One of the layers is a human-readable
commons deed that expresses, in terms
anybody should be able to understand,
the freedoms and restrictions associ-
ated with that creative work. Second,
and very different, is a lawyer-readable
license, a billion-page document writ-
ten by the very best lawyers we could
find to make enforceable the freedoms
associated with the content. Third—and
ultimately, in my view, most important—
is a machine-readable expression of the
freedoms that are associated with the

content, so that machines can begin to
identify the freedoms that run with par-
ticular bits of content and make it easier
for educators and scientists and artists to
gather content on the basis of the free-
doms that it carries. Yahoo and Google
both have built into their search engines
the ability to filter content on the basis of
these freedoms.
The result is a certain kind of cre-
ativity that is, I think, the very best
celebration of the kind of romantic vi-
sion that John Philip Sousa was
talking about. My favorite
example is a song, “ My
Life,” written by the artist
Colin Mutchler. He up-
loaded the guitar track
to a free site that allowed
other people to down-
load it under a Creative
C o m m o n s l i c e n s e . A
seventeen-year-old violin-
ist named Cora Beth down-
loaded it , added a violin
track on top, renamed the
song “My Life Changed,” and
then re-uploaded the song
to the site for other people
to do with as they wanted.
I’ve seen a whole bunch of
remixes of the song. The
critical point is that these
creators were able to create,
consistent with copyright

law and without any lawyer
sta n d i n g b e t w e e n t h e m .
And that’s the objective: to
enable people to respect
the underlying rights that
copyright enables them and
grants them without requiring the high
cost of lawyers’ intervention.
Since the launch of Creative Com-
mons, there has been an explosion of cre-
ative objects marked with these licenses.
Over 100 million images with Creative
Commons licenses are on Flickr. Radio-
head released a song, a number-one song
on Amazon, with a Creative Commons
license. Girl Talk is a big supporter. Nine
Inch Nails released an album under a
Creative Commons license; within the
first week, they made $1.6 million in
sales of music that was also available for
people to download for free. They had
recognized the importance of bringing
the audience upstage, and they were
rewarded for that. Al Jazeera, amazingly,
makes all of its videos of the Middle East
available under Creative Commons li-
censes so that anybody can incorporate
them into news shows and commentary
around the world. The White House has
put its content under a Creative
Commons license. And in
©

These creators
were able
to create,
consistent with
copyright law
and without any
lawyer standing
between them.
Mary Stewart
Mary Stewart
2009, Wikipedia relicensed the whole of
Wikipedia under a Creative Commons
license, to build this infrastructure of
interoperable free culture that speaks to
a different business model of creativity.
In 20 05, we launched the Science
Commons project, to focus the same
kind of insight in the context of science.
How do we lower the transaction costs
for scientists to share their work? How
do we build an infrastructure to enable
voluntary sharing? We wanted to be part
of the open-access movement in schol-
arship, and an extraordinary number

of journals—approximately 1,000—now
use Creative Commons licenses to make
their content freely available under the
terms of open-access licenses.
We also started the Open Data proj-
ect, which is more complicated because
data isn’t technically protected, in the
United States, by copyright. We wanted
to build a legal infrastructure to simplify
the complexities around sharing data.
That infrastructure is a protocol that we
call CC0. It is basically a simple way for
creators or scientists to waive any right or
claim they might have to the underlying
data and then to complement that legal
infrastructure with a technical infra-
structure that enables sharing. We have
been one of the most important forces
behind the RDFa standard—which, when
it matures and is embedded in the infra-
structure around us, will enable a much
more intelligent way for these entities to
share knowledge.
We’ve extended out of the virtual
world into the physical world as well—
into the open materials space—to enable
stuff to be more simply shared. We have
a materials transfer agreement, which is
like a Creative Commons license that en-
ables people, using the same three-layer
model, to facilitate the sharing of what-
ever they are producing, without the

enormous costs that are typically layered
on top by lawyers insisting upon control
over everything in the future. The aim
of this project is to simplify voluntary
sharing.
One of the most dramatic examples is
the Personal Genome Project. This proj-
ect plans to put volunteers through an
enormously rigorous test to make sure
they understand what they’re volunteer-
ing for. Volunteers have to get a perfect
score on the online exam; if they don’t
get a perfect score, they can’t be consid-
ered as a volunteer for the project. These
volunteers agree to make their gene
sequence information completely avail-
able for anybody to do whatever they
want with it. Not everybody would want
to opt into this, but certain important
leaders in science have done so. More
than 1,000 volunteers have been cleared
but not yet processed. Three things will
be made available: (1) complete gene
Mary Stewart
Mary Stewart

sequence for all volunteers; (2) medical
information for all volunteers (they will
report the whole of their medical history
in a way that can be used by science);
and (3) stem cells, which will be made
accessible for anybody, according to a
protocol. All three of these categories
are made accessible under a Creative
Commons type of infrastructure. The
gene sequence is CC0 (no restrictions at
all); the medical information is CC0 (no
restrictions at all); and the stem cells are
governed by a materials transfer agree-
ment that facilitates simple sharing in a
way that will explode knowledge around
this gene sequence information.
Finally, in 2007 we launched ccLearn,
the objective of which was to try to corral,
or “herd the cats” of, the open educational
resources movement in order to help
build an infrastructure of interoperable,
free educational resources so that the ideal
of open education can become a reality.
Number three, the third thing we can
do in response to the copyright prob-
lem, is to change fate. As impossible as
this might sound—and I am a bit of a
radical optimist about this—we have to
learn from our past. I want to think here
about the past in the context of the cur-
rent debate surrounding what used to
be called the Google Print project and
is now called the Google Book Search
project. This project plans to “Google-

ize” 18 million books. These books fall
into three categories: (1) 9 percent of
the books are in copyright and in print,
so we know who the publisher is; (2) 16
percent of the books are in the public
domain; and (3) 75 percent of the books
are presumptively under copyright but
are no longer in print, which means that
there is no one to ask for the permission
to do whatever it is that you might want
to do with those works.
Google looked at this triad of cat-
egories and said, “OK, we’re first going
to scan all of them, and then we’ll grant
access to the underlying works differ-
entially.” For the public domain books
(16%), Google would grant full access.
Users can download a PDF version of
the public domain work, store it on their
computers, and share the book with
friends. This guarantees access to these
works in an electronic form for free. For
the books that are presumptively under
copyright (75%), Google would grant at
least “snippet” access. A search in the
Google library results in snippets from
the book—a couple words around the
word that was searched on—so that the
user knows whether the book might
have something to do with the particular
thing being searched for. Google then
provides links so that the user can ei-
ther buy a used book or get the book at
a library. Third, for those books that

are in copyright and that have a known
p u b l i s h e r ( 9 % ) , G o o gl e
would give as much per-
mission as the publish-
ers or authors would
allow.
Not surprisingly, not
everybody loves Google
o r t h e G o o gl e B o o k
Search project . And of
course in the United States
when you don’t like some-
one, you typically sue them.
The Association of American
Publishers and the Authors
Guild banded together to
file a lawsuit against Google,
saying that Google was en-
gaged in massive copyright
infringement. They claimed
that before Google could
scan the 18 million books,
Google needed to clear the
permissions that would be
required by the copyright
owners if copyright still
survived in any of those 18
million books. What would

that mean, precisely? For
the public domain books,
it wouldn’t matter much
because there’s no rights-
holder to talk to; thus, 16
percent could be included in
the Google library without
any problem. The in-print
a n d i n - c o p y r i gh t b o o k s
also do not pose a problem.
Indeed, every one of these
publishers had already, be-
fore Google launched the
project, entered into agree-
ments permitting Google
to grant significant access
b e y o n d s n i p p e t a c c e s s ;
thus, this 9 percent of books
could be included. But if
the claim of the Association
of American Publishers and
the Authors Guild were
adopted as law, the remain-
ing 75 percent of the books
in the Google library would
disappear, since there is no
practical way to clear rights here; there is
no obvious person to ask about permis-
sion, because the copyright system is an
enormously inefficient property system
that doesn’t even tell us who owns what.
The lawsuit was settled by an agree-
m e n t o n O c t o b e r 2 8 , 2 0 0 8 . T h e
agreement says that for books in this last

category (the 75% presumptively under
copyright), 20 percent of the content of
each book would be available to people
freely as they searched the G oogle
l i b ra r y — “ f r e e ly ” i n t h e s e n s e t hat
Google was going to pay for that right but
that the user could get access to it for
free and then would have the right to
purchase the full book . Money paid
to purchase full books would go into a
pool to be held by some new corporation
that would give it out to the authors, as-
suming that they could be found some-
day in the future. What this settlement
left open, importantly, was whether what
Google did originally should be consid-
ered fair use. Google rightly, in my view,
insisted that their original plan was pro-
tected by fair use and they did not give
up that claim in the settlement. But the
Authors Guild disagrees with that. So
whether it’s fair use to make the scan or
snippets was held open. But the project
now opens up 20 percent of each book.
And obviously, 20 percent is more than
snippets. In my view, there’s an impor-
tant progress in this settlement, since 20
percent of this gaping hole is better than
none. It’s more than fair use, and obvi-
ously more access is better.
Still, this is good only statically. The
fear I have is the dynamic consequence
of establishing a structure like this:
with the enormously large players in a
relatively large oligarchy of rightshold-

ers on the one side and a very powerful
company like Google on the other. The
question we need to ask is, What ecology
will this structure produce for accessing
our culture? The ecology of access today,
of course, is the ecology of the library,
which is free access to the whole book—
not to 20 percent of the book and the
right to buy access to more. The settle-
ment establishes a world that is radically
©
There’s an
important
progress in this
settlement,
since 20 percent
of this gaping
hole is better
than none.
Mary Stewart
Lawrence Lessig is Director
of the Edmond J. Safra
Foundation Center for Ethics
at Harvard University and is
a Professor of Law at Harvard
Law School. He was previously

a professor at Stanford Law School, where he
founded the school’s Center for Internet and
Society. Lessig is the author of five books on
the subject of law, technology, and copyright,
including Remix (2008).
different. Indeed,
this 20 percent is
a simplification.
If you read the
14 0 - p a ge s e t-
tlement, you’ll
see that there
is in fact a radi-
c a l l y c o m p l e x
formula, depend-
ing on the kind of
w o rk a n d t h e k i n d
of copyright involved in
the work, for determining how
much access is granted for free.
My fear—a fear that was only exacer-
bated as I tried to learn about the disease
that I thought my daughter had (and
that, it turned out, she did not have)—is
that this structure will push us in the
direction of doing to books what we
did to documentary films. It’s a future
not of a digital library; it’s a future of
a digital bookstore. Indeed, it’s worse
than a digital bookstore because this is
a digital bookstore with all the freedom
of a library of documentaries —which
of course we understand now to be es-

sentially none because of the enormous
complexity created by this obsessive
permission culture produced by lawyers
and oligopolies oblivious to the costs
that their system will produce for the fu-
ture of access to knowledge and culture.
We need to wake them up to these
costs. There are insanely hard ques-
tions here —not just the competition
and privacy questions that get raised by
the Google Book Search settlement, but
questions around the ecology of access
that this settlement begins to cement. We
need to wake people up to the fact that
there is a need to restrike a balance in
copyright between preserving access to
our culture without destroying the incen-
tives that certain parts of that culture need
to produce great new works—between
protecting access to the past without pro-
tecting the past against the future.
And we need to begin that conversa-
tion with humility. None of us know
precisely how this should be done. We in
the educational community love to focus
on the limits of private
companies, the lim-
its of the govern-
m e n t , t h e l i m it s
of the oligopolies,
but am I the only
academic who is

also fearful of the
limits of academ-
ics in understanding
what this future should
be like? Am I the only one
terrified about a set of rules—
written by us —that would define
what the future should be like? We need
to recognize that both sides have limits,
and we need to see this settlement as an
important experiment. As Peter Drucker
wrote, “There is nothing so useless as
doing efficiently that which should not
be done at all.”
Conclusion
The existing system of copyright can-
not work in the digital age. Either we
will force our kids to stop creating, or
they will force on us a revolution. Both
options, in my view, are not acceptable.
There is a growing copyright abolition-
ist movement—people who believe that
copyright was a good idea for a time long
gone and that we need to eliminate it
and move on in a world where there is
no copyright. I am against abolitionism.
I believe copyright is an essential part
of the cultural industries and will be es-
sential in the digital age—even though
I also believe it needs to be radically
changed in all sorts of important ways

and doesn’t apply the same in science
and in education. Copyright is essential
to a diverse and rich (in all senses of that
word) culture.
We are in the middle of a war. My
friend the late Jack Valenti used to refer
to this as his own “terrorist war,” where
the terrorists are our children. We orga-
nize and wage war against these terror-
ists, these pirates. The thing that we—as
educators, as scientists, as parents, as
people who understand the potential
and uses of this technology—need to
recognize is that we can’t kill this tech-
nology. We can only criminalize it. We’re
not going to stop our kids from creating
the way they create. We will only drive
that creativity underground.
We need to ask ourselves: Is that any
good? Our kids live in this age of prohibi-
tions. In all sorts of contexts, they live life
against the law. We tell them they live
life against the law, and they recognize
that their behavior is against the law.
That recognition is extraordinarily cor-
rosive, extraordinarily corruptive of the
rule of law in a democracy. All of us have
let this insanity happen. All of us can, if
we actually stand up and do something
about it, make it stop.
Notes
1. Jessica Litman, “The Exclusive Right to Read,”

Cardozo Arts and Entertainment Law Journal, vol. 13,
no. 1 (1994), p. 34.
2. Ibid., pp. 34–35.
3. Aldous Huxley, “The Outlook for American
Culture: Some Reflections in a Machine Age,”
Harper ’s Magazine, August 1927.
4. See also John Philip Sousa, “The Menace of
Mechanical Music,” Appleton’s Magazine, vol. 8
(July–December 190 6).
5. “Eyes Back on the Prize,” Filmmaker blog, August
29, 20 05.
© 2010 Lawrence Lessig. The text of this article is
licensed under the Creative Commons Attribution
3.0 License (http://creativecommons.org/licenses/
by/3.0/).
©
For a video and an audio podcast of this keynote
address, as well as the presentation slides,
see <http://www.educause.edu/Resources/
Lessig2009>.
Mary Stewart
Mary Stewart
Mary Stewart

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