Control & Creativity
lessig, lawrence
"CONTROL & CREATIVITY" the future of ideas is in the balance B Y LAWRENCE LESSIC The Internet puts two futures in front of us, the one we seem to be taking and the one we could. The one we...
...After all, it's your music...
...The new law did not give copyright holders perfect control over their copyrighted material...
...So understood, the question for our generation will be not whether the market or the state should control a resource, but whether that resource should remain free...
...and is free to use, consistent with fair use, a limited degree of others' work...
...they have been the rule in closed societies...
...So deep is the rhetoric of control within our culture that whenever one says a resource is "free," most believe that a price is being quoted--free, that is, as in zero cost...
...Though the content the piano player played was taken from sheet music, it was not, the Court held, a "copy" of the music that it, well, copied...
...If one couldn't control access to these resources, or resources called "mine," one would have little incentive to work to produce these resources, including those called mine...
...The Net itself, however, has now erased any effective distinction between commercial and noncommercial...
...We listen to the radio without paying for the songs we hear...
...Control, however, is precisely Hollywood's and the recording labels' objective...
...Copyright Office could run a simple Web site where authors register their work...
...The most dramatic are the changes in the costs of distribution...
...And one thing we could get would be access to the source code after the copyright expires...
...Search on the lyrics and find a recording...
...Hollywood should have the right to charge admission to its movies...
...Should they respond by intervening immediately to remedy the "wrong" said to exist as a result of the Internet's concussive impact...
...As the Supreme Court has said, "[T]he Copyright Act does not give a copyright holder control over all uses of his copyrighted work...
...Never has Congress embraced or the Supreme Court permitted a regime that guaranteed perfect control by copyright owners over the use of their copyrighted material...
...Not because "flourish[ing]" innovation is the darling of the Left...
...Thus, I would protect software for a term of five years, renewable once...
...Free resources have always been central to innovation, creativity and democracy...
...it would keep the barriers to this creativity as low as possible...
...Beyond that, the music, like culture generally, would be freely available...
...These parts of our culture, these lawyers will tell you, are the property of the few The law of copyright makes it so, even though the law of copyright was never meant to create any such power...
...they give value to the businesses around them...
...who crafted the first protocols of the Net had no sense of a world where grandparents would use computers to keep in touch with their grandkids...
...Some content is to stay in the commons, even if most useful content remains subject to control...
...Similarly, an argument for increasing control by content owners needs more than "they didn't pay for this use" to back up the argument...
...By 1902, there were "about seventy-five thousand player pianos in the United States, and over one million piano rolls were sold...
...These "compromises" give the copyright holder a guarantee of compensation without giving the copyright holder perfect control.The epitome of copyright's protection, they represent the aim to give authors not perfect control of their copyrighted work, but a balanced right that does what the Constitution requires"promote progress...
...It will also be central to progress in the future...
...Within seconds you can hear any music you want...
...Along with Equinix's Jay AdeIson, Caspian's Larry Roberts, ONI's Rohit Sharma, BIueArc's Geoff Barrall, Scale Eight's Josh Coates and representatives from Dell,Compaq,Corvis, Nortel and many more...
...And as many have argued convincingly, that's just what many patents today do...
...The U.S...
...To ordinary people, this slogan from Apple seems benign enough...
...Every society has resources that are free and resources that are controlled...
...There is no manna from heaven...
...Instead, cable TV got a compulsory licensing system to guarantee that cable operators would be able to get permission to broadcast content at a relatively modest level...
...The vast majority of creative work was free for others to use...
...To reestablish a balance between control and creativity, our aim should be to give artists enough incentive to produce, while leaving free as much as we can for others to build upon and create...
...In granting authors a "mechanical reproduction right," Congress gave authors the exclusive right to decide whether and on what terms a recording of their music could be made...
...But when those benefits stop, what they create should fall into the public domain...
...In the next 50 years, it extended the term once again...
...A mature society realizes that value by protecting such resources from both private and public control...
...JANUARY/FEBRUARY 2002 • THE AMERICAN SPECTATOR 43 And while the ordinary and sensible rule for most goods is the "pay me this for that" model of the local convenience store, a second's reflection reveals that there is a wide range of resources that we make available in a completely different way...
...They are as much about growth and jobs as they are about music and film...
...Apple, of course, wants to sell computers...
...The future that we could have is much harder to describe...
...Creation is always the building upon something else...
...If Congress determines that business method patents are justified, it should also consider the proposals ofJeffBezos and Tim O'Reilly to grant patent protection for business methods for only a very short period...
...Copyright Office should have the power to forgive...
...We now have the potential to expand the reach of this creativity to an extraordinary range of culture and commerce...
...The first Congress to grant copyright gave authors an initial term of 14 years, which could be renewed for 14 years if the author was living...
...But don't confuse Hollywood's grace with your rights...
...But here, rather than balance, the rhetoric is about "theft" and "crime...
...Many of the constraints that affected real-space creativity have been removed by the architecture, and original legal context, of the Internet.These limitations, perhaps justified before, are justified no more...
...From the economics of "real space"where records are now made, books are still written, and film is primarily shot-to the virtual domains where they increasingly are distributed, the context of creativity has been transformed by the Internet...
...In all of these cases, the availability of a resource that remains outside of the exclusive control of someone else-whether a government or a private individual-has been central to progress in science and the arts...
...JANUARY/FEBRUARY 2002 • THE AMERICAN SPECTATOR 47 Why: For the same reasons we've been tracking...
...Call Rick O'Neill at 1-800-720-1112 (ext.2139) to register today or visit www.storewidth.com to view the complete agenda and speaker list...
...Indeed, the contrast is even stronger than this, and it is this that gets to the heart of the matter...
...The issue for us will not be which system of exclusive control-the government or the marketshould govern a given resource, but whether that resource should be controlled or free...
...Controlled resources are those for which the permission of someone is needed before the resource can be used...
...The roads are free in the sense I mean...
...The target is not simply piracy...
...and whatever distortions this system might produce, they can be minimized by shortening the period of protection...
...but because innovation and creativity was the ideal of our founding, Enlightenment Republic...
...Central Park is free in the sense I mean...
...But is that unfair% Is it unfair that some one gets to profit off someone else's ideas: No, says Kozinski: Intellectual property law assures authors the right to their original expression...
...More important, limited protection has always been the rule...
...JANUARY/FEBRUARY 2002 • THE AMERICAN SPECTATOR 49...
...but just as important are the changes in the costs of production...
...any derivative use is within the reach of this regulation...
...There is no art that doesn't reuse...
...It is harder because the very premise of the Internet is that no one can predict how it will develop...
...FREE BEER...
...Public debate is enabled, by removing perhaps the most significant cost of human interaction synchronicity...
...And it is this perfect control that threatens to undermine the potential for innovation that the Internet promises...
...These resources and others gain value by being kept free rather than controlled...
...In the early 1870s, Henri Fourneaux invented the player piano, which recorded music on a punch tape as a pianist played the music.The result was a high-quality copy (relative to the poor quality of phonograph recordings at the time) of music, which could then be copied and played any number of times on other machines...
...The broadcasters were a powerful industry...
...For the defining feature of the Internet is that it leaves resources free...
...More content is controlled by law today than ever in our past...
...You might think that there is something a bit unfair about a regime where Disney can make millions off stories that have fallen into the public domain but no one else but Disney can make money off Disney's work-apparently forever...
...I can add to your conversation tonight...
...For the very same machines that Apple sells to "rip, mix [and] burn" music are programmed to make it impossible for ordinary users to "rip, mix [and] burn" Hollywood's movies...
...In addition to limited compulsory rights, an author is free to take from work published before 1923...
...The first Copyright Act gave authors of "maps, charts and books" an exclusive right to control the publishing and vending of these works, but only if their works had been "published," only after the works were registered with a copyright registry, and only if the authors were Americans...
...Digital tools dramatically extend the horizon of opportunity for those who could create something new And not just for those who would create something "totally new," if such an idea were even possible...
...They would together go a great distance in asEuring that the space for innovation remains open and that the resources for innovation remain free...
...noncommercial distinctions...
...This culture that you sing to yourself, or that swims all around you, this music that you pay for many times over-when you hear it on commercial radio, when you buy the CD, when you pay a surplus at a large restaurant so that they can play the same music on their speakers, when you purchase a movie ticket where the song is the theme-this music is not yours.You have no "rights" to rip it, or to mix it, or especially to burn it.You may have, the lawyers will insist, permission to do these things...
...This freedom the recording industry calls theft...
...But once a recording had been made, others had the right (upon paying 2 cents per copy) to make subsequent recordings of the same music-whether or not the original author granted permission...
...So Congress cut any dependency that the cable industry might have, by assuring it could get access to content without yielding control...
...Congress's aim in part was to assure that the cable industry could develop free of the influence of the broadcasters...
...When an author wants to renew the copyright, the system could charge the author a renewal fee...
...to "mix" it-meaning to re-form it 42 THE AMERICAN SPECTATOR • JANUARY/FEBRUARY 2002 however the user wants...
...I shouldn't need the permission of the Einstein estate before I test his theory against newly discovered data...
...The network that I am describing enables both forms of creativity...
...to "rip" it-meaning to copy it...
...they are evil only if they do no social good...
...The choice is not between all or none...
...They affect commercial as well as noncommercial, the arts as well as the sciences...
...This balance reflects something important about this kind of creativity: that it is always building on something else...
...Read the law," they'll say, piling on...
...Indeed, possibly the opposite: when Napster usage fell after the court-restricted access, album sales fell as well...
...For five, or maybe 10 years, commercial entities would hold these rights exclusively...
...Intellectual property is both an input and an output in the creative process...
...That Web site could be funded by charges for copyright renewals...
...Consider, for example, Judge Alex Kozinski, one of the brightest stars of the Ninth Circuit Court of Appeals-the "Hollywood Circuit " When his fellow justices upheld game-show hostess Vanna White's right to control the use of her symbolic image, Kozinski sharply dissented...
...Skip ahead to just a few years from now and think about the new potential for creativity...
...The future that I am describing is as important to commerce as to any other field of creativity...
...FREE SPEECH...
...Twice they asked the Supreme Court to shut it down...
...Thus, for private, unpublished correspondence, I think the current protection is perfectly sensible: the life of the author plus seventy years, automatically created, with no registration or renewal requirements...
...Beyond that, however, the content of our culture is controlled by an everexpanding scope of copyright...
...is far more useful if separated from other private land by public streets, roads and highways...
...Or should they wait to allow the system to mature, and to see just what harm there is...
...44 THE AMERICAN SPECTATOR • JANUARY/FEBRUARY 2002 nfinite bandwidth and storage will converge at G III1~~ ~r March 25-27, 2002, The Ritz-Carlton Hotel, Laguna Niguel, CA...
...If a registration is lost, or a deadline missed by a short period of time, the U.S...
...Iso presenting at storewidth 2002 StorageNetworks CED Peter Bell, EMC (TO Jim Rot hnle, Legato CED David Wright, Brocade CED Greg Reyes, Hitachi Data Systems (TO Hu Yoshida, GiantLoop CED Mark Ward, Extreme CTO Steve Haddock, Inktomi (TO Steve McCanne, MTI CEO Tom Raimondi and Gad zoox CTD Wayne Richard...
...Production is different from consumption...
...Authors of sheet music complained, saying that their content had been stolen...
...Free resources have nothing to do with communism...
...This was a "compulsory licensing right," which Congress granted copiers of copyrighted music to assure that the original owners of the copyrighted works would not get too much control over subsequent innovation with that work...
...Obviously many resources must be controlled if they are to be produced or sustained...
...a great deal of creativity would not exist without the protections of the law Large-budget films could not be produced...
...So it fell to Congress to strike a balance between cable TV and copyright holders...
...Every creative act reduced to a tangible medium is protected for upward of 150 years, whether or not the protection benefits the author...
...That fee might increase over time or depend upon the nature of the work...
...Scientists plotting an orbit of a spacecraft draw freely upon the equations developed by Kepler and Newton and modified by Einstein...
...This struggle is just a token of a much broader battle, for the model that governs film is slowly being pushed to every other kind of content...
...The right to criticize a government official is a resource that is not, and should not be, controlled...
...But whether they are simple or hard, Congress could intervene to strike a balance between the right of copyright holders to be compensated and the right of innovators to innovate...
...The effect on expected income from this change would therefore be tiny...
...There is no author who decides whether or not to write a book depending upon whether he or his estate will receive money threequarters of a century from now...
...Bezos proposes five years, but an even shorter period may make sense...
...Network technologies move so quickly that a longer period of protection is not really needed...
...After two centuries of copyright statutes, the scope of copyright has exploded, and the reach of copyright is now universal...
...Before a monopoly is permitted...
...Worse, the copyright system protects software without getting any new knowledge in return...
...But instead, copyright interests are in effect getting more control over copyright in cyberspace than they had in real space, even though the need for more control is less clear.We are locking down the content layer, and handing over the keys to Hollywood...
...Take the Net, mix it with the fanciest TV, add a simple way to buy things, and that's pretty much it...
...there is a compulsory license for music and certain pictorial works in noncommercial television and radio broadcasts...
...Monopoly controls have been the exception in free society...
...They would commit us to an environment that would preserve the innovation we have seen and help fulfill the liberating promise of the Net...
...At the same time, it can't be denied that the Net has reduced the ability that parents have to protect their children.Yet the law says, "Wait and see, let's make sure we don't harm the growth of the Net...
...This balance is the rule, not the exception, when Congress has confronted a new technology affecting creative rights...
...there is a compulsory licensing scheme governing satellite television systems, digital audio home recorders and digital audio transmissions...
...But how a resource is produced says nothing about how access to that resource is granted...
...And in the age of the Internet, those steps could be extremely simple...
...Already we can see something of this potential.The open and neutral platform of the Internet has spurred hundreds of companies to develop new ways for individuals to interact...
...In one case-where the harm is the least-the law is most active...
...Yet their ad touches an ideal that runs very deep in our history...
...The current protection for software is the life of an author plus 70 years or, if work-for-hire, 95 years...
...The same solution-compensation without control-is available today...
...But the same work that the original author might 48 THE AMERICAN SPECTATOR , JANUARY/FEBRUARY 2002 not value could well be used by other creators in society...
...is free to take noncreative work (facts) whenever published...
...f 46 THE AMERICAN SPECTATOR • JANUARY/FEBRUARY 2002 Annual CD sales have tripled in the past ten years.Yet the law races to support the recording industry, without any showing of harm...
...Congress responded quickly to the Court's decision by changing the law But the change was an interesting compromise...
...This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art...
...As conservative Federal Circuit Judge Richard Posner has written, "[T]he absence of copyright protection is, paradoxical as this may seem, a benefit to authors as well as a cost to them...
...and the work that was protected was protected only for limited purposes...
...The architects Lawrence Lessing is professor of lain at Stanford Law School and author of The Future of Ideas, from which this is excerpted...
...The cost of filmmaking is a fraction of what it was just a decade ago.The same is true for the production of music or any digital art...
...I should have the right to control access to my house and my car...
...Copyright is a critical part of the process of creativity...
...In the context of copyright, the response has been different...
...A song from your childhood...
...Congress should empower file sharing by recognizing a similar system of compulsory licenses...
...There are strong reasons why many are trying to rebuild these constraints: They will enable these existing and powerful interests to protect themselves from the competitive threat the Internet represents...
...The state must therefore find a balance, and this balance will be struck between overly strong and overly weak protection...
...We have gone from a regime where a tiny part of creative content was controlled to a regime where most of the most useful and valuable creative content is controlled for every significant use...
...But that protection would be granted only if the author submitted a copy of the source code to be held in escrow while the work was protected...
...The urgency in the field of patents is even greater...
...Cable TV was born stealing the content of others and reselling that content to consumers...
...And it opens up a range of technologies for production and distribution that threaten the existing establishment...
...This industry thus demands the right to veto new innovation, and it invokes the law to support its veto right...
...Work that an author "publishes" should be protected for a term of five years once registered, and that registration can be renewed fifteen times...
...Software is a special case...
...REBUILDING THE COMMONS Copyright was originally simply a restriction on commercial entities, regulating "publishers" and those who "vend" "maps, charts and books...
...MICKEY MOUSE BLOAT The distinctive feature of modern American copyright law is its almost limitless bloating-its expansion both in scope and in duration.The framers of the original Copyright Act would not begin to recognize what the act has become...
...Inventor Mitch Kapor drew freely upon the idea of a spreadsheet-VisiCalc-to build the first killer application for the IBM PC-Lotus 1-2-3...
...Private property, including intellec tual property, is essential to our way of life...
...They should be set, as they have always been set, by a policy maker keen on striking a balance...
...But just because some control is good, it doesn't follow more is better...
...And they don't call it theft when they make a new version of` Jingle Bells...
...Larry Boucher, pioneer developer of the SCSI interface, and the leaders of over 20 additional private storewidth companies share the insight of successful entrepreneurs in the midst of a struggling economy...
...This work thus falls into a copyright black hole, unfree for over a century...
...Resources cost money to produce...
...Think about the ads from Apple Computer urging that "consumers" do more than simply consume: Rip, nix, burn...
...In the context of copyright law, the industry has been very clear: Its aim, as RIAA president Hilary Rosen has described it, is to assure that no venture capitalist invests in a start-up that aims to distribute content unless that start-up has the approval of the recording industry...
...Thus content holders, or broadcasters, couldn't leverage their power in the television broadcasting market into power in the cable services market...
...Overprotection stifles the very creative forces it's supposed to nurture...
...Here again, patents are not per se evil...
...Again, the amount of this fee was set by the statute, not by the market power of the author...
...They had no idea of a technology where every song imaginable is available within thirty seconds' reach...
...This is a parody of the Constitution's requirement that copyright be for "limited times...
...For most resources, most of the time, the market trumps the state...
...We were born a pirate nation...
...to the lawyers who prosecute the laws of copyright, the very idea that the music on "your" CD is "your music" is absurd...
...This is not a new question, though we've been well trained to ignore it...
...The changes we will see affect every front of human creativity...
...The one we seem to be taking is easy to describe...
...Private land...
...Cable television on speed, addicting a much more manageable, malleable and sellable public...
...Though I don't (yet) believe this view ofAmerica Online, it is the most cynical image ofTime Warner's marriage to AOL: the forging of an estate of large-scale networks with power over users to an estate dedicated to almost perfect control over content, through intellectual property and other government-granted exclusive rights.The promise of many-to-many communication that defined the early Internet will be replaced by a reality of many, many ways to buy things and many, many ways to select among what is offered.What gets offered will be just what fits within the current model of the concentrated systems of distribution...
...Free resources are those available for the taking...
...An expansion of copyright protection," Judge Posner argues, "might...
...This balance is necessary Kozinski insists, "to maintain a free environment in which creative genius can flourish...
...Indeed, the best evidence of this conflict is again Apple itself...
...This, however, is a new century...
...It balanced these rights through a compulsory license that enabled payment to artists while aisuring free access to the work produced...
...It provides an incentive for investment and innovation...
...PROTECTING MUSIC The Net has created a world where content is free...
...And because of the burdens of registering, most works were not copyrighted...
...Try to "rip, mix [and] burn" Disney's 102 Dahnatians and it's your computer that will get ripped, not the content...
...When Apple's Macintosh operating system falls into the public domain, there will be no machine that could possibly run it...
...Microsoft should have the right to control access to its source code...
...A similar solution was reached for cable TV Congress protected rights holders, but not through a property right...
...I find them very hard...
...Twice the Court said no...
...we hear friends humming tunes that they have not licensed...
...Any act of"copying" is presumptively regulated by the statute...
...If a copyright isn't worth it to an author to renew a copyright for a modest fee, then it isn't worth it to society to support-through an array of criminal and civil statutes-the monopoly protected...
...Software, or code, protects this content, and Apple's machine protects this code...
...They do no social good if they benefit certain companies at the expense of innovation generally...
...To sleep at 112 Mercer Street requires the permission of the Institute for Advanced Study...
...If the registration is not renewed, then the work falls into the public domain...
...by increasing the royalty expense of writers...
...Over the past hundred years, much of the heat in political argument has been about which system for controlling resources-the state or the market-works best...
...If society is to give software producers more protection than they otherwise would take, then we should get something in return...
...For a time there was a compulsory license for jukeboxes...
...The old, in other words, is bending the Net to protect itself against the new...
...The copyright holders did not like this "theft...
...Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology grows by accretion, each new creator building on the works of those who came before...
...Napster may indeed have helped sales rather than hurting them...
...It did the same thing with the first real "Napster" in our history-cable television...
...The Supreme Court disagreed...
...But they don't call it theft when I hear an old favorite of mine on the radio...
...Between 1790 and 1799, 13,000 titles were published in America, but only 556 copyright registrations were filed...
...The Internet has provided for much of the world the greatest demonstration of the power of freedomand its lesson is one we must learn if its benefits are to be preserved...
...We live in a world with "free" content, and this freedom is not an imperfection...
...When the courts said piano rolls were not "copies" of sheet music, Congress balanced the rights of composers against the rights to mechanically reproduce what was composed...
...you can follow it up tomorrow...
...Napster no doubt is a commercial activity, though the sharing that Napster enables is not...
...These fees should not be set by an industry set on killing this new mode of distribution...
...That war is over...
...The current term is the life of the author plus 70 years-which, for an author like Irving Berlin, would mean a protection of 140 years...
...And this is especially true when Congress has confronted new technologies...
...There is no such thing as language that doesn't simultaneously transmit its words...
...It does not do so now...
...PIANO ROLLS Control is not necessarily bad...
...We can see this because it is the nature of creative writing that the writing is public...
...This initial protection did not restrict "derivative" works: One was free to translate an original work into a foreign language, and one was free to make a play out of a novel without the original author's permission...
...The technology will only get better...
...it gives value to the city that it centers.A jazz musician draws freely upon the chord sequence of a popular song to create a new improvisation, which, if popular, will itself be used by others...
...For the technology that they (and of course others) sell could enable this generation to do with our culture what generations have done from the very beginning of human society: to take what is our culture...
...and finally, and most important, to "burn" it-to publish it in a way that others can see and hear...
...But likewise, and obviously, many resources should be free...
...SAVE PORN, KILL NAPSTER...
...If I write an e-mail and send it to a group of my friends, that creativity should be treated differently from the creativity of a published book or recorded song.The e-mail should be protected for privacy reasons, the song and book protected as a quid pro quo for a government-backed monopoly...
...More disturbingly, we have come to this expanded term through an increasingly familiar practice in Congress of extending the term of copyright both prospectively (to works not yet created) and retrospectively (to works created and still under copyright...
...our questions will be different...
...The model for this intervention is the compulsory license...
...Artists should be paid, but it doesn't follow that selling music like chewing gum is the only possible way...
...there should be reason to believe it will do some good-for society, and not just for monopoly holders...
...And what precisely would that idea mean...
...Congress in turn followed the model set by player pianos: Cable TV had to pay for the content it broadcast, but the content holders did not have an absolute right to grant or deny the right to broadcast its content...
...Congress felt-rightly-that cable would grow more quickly and innovate more broadly if it was not beholden to the power of broadcasters...
...David Gelernter,Yale professor of computer science and chief scientist at Mirror Worlds Technologies, disclose his predictions for current and next generation networking tools...
...Presented by: Corporate Sponsors: U LEGATO STORAGE ALLIANCE GILDER PUBLISHING > trues Yo11sToM In* roa~Commv Media Sponsors: . edi It is a benefit because, as we've seen already, creative works are both an input and an output in the creative process...
...This protection is not just against competing publications...
...The unavoidable conclusion about changes in the scope of copyright's protections is that the extent of"free content"meaning content that is not controlled by an exclusive right-has never been as limited as it is today...
...If only such a policy maker were somewhere to be found...
...Unpublished works" would be different...
...Suppliers of cable services would set up an antenna, capture the commercial broadcasts made by television stations, and then resell those broadcasts to their customers...
...One of the strongest reasons that the copyright industry has raised for the elimination of this renewal requirement is the injustice that comes from a family's or author's losing copyright protection merely because of a technicality...
...Rob Reid, founder of Listen.com, and O'Reilly analyst, Clay Shirkey, discourse on disruptive innovations in the online music and peer-to-peer business sectors...
...At any time a user can select the channel of music he or she wants...
...And there will be less art if every reuse is taxed by the earlier appropriator...
...Introducing the industry's most complete resource: www.storewidth.com George Gilder invites you to join this exclusive gathering of industry leader and inspirational innovators...
...In terms that echo the cries of the recording industry today, copyright holders charged that these commercial entities were making money off their content, in violation of the copyright law...
...Technology could enable a whole generation to create-remixed films, new forms of music, digital art, a new kind of storytelling, writing, a new technology for poetry, criticism, political activism-and then, through the infrastructure of the Internet, share that creativity with others...
...many books would not get written...
...As he wrote: Something very dangerous is going on here...
...This is your opportunity to hear from: Klelner, Perkins, CaufieId & Byers'generaI pa rtner, Vi n od Khosla,on funding the next phase of network development...
...Find detailed information on the special bonus conference event, open to all registered attendees, and register to attend at www.storewidth.comlconferences...
...Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains...
...These changes are just beginnings, but they would be significant beginnings if done...
...A resource is "free" if 1) one can use it without the permission of anyone else...
...If "technicality" means something like the registration was lost in the mail or was delivered two hours late, then the complaint is a good one.There is no reason to punish authors for slips...
...Einstein's last residence in Princeton, New Jersey, is a controlled resource...
...After all, the recording industry continues to grow at an astounding rate...
...Though most distinguish innovation from creativity, or creativity from commerce, I do not...
...The term of copyright for software is effectively unlimited...
...It would leave the network open to the widest range of commercial innovation...
...Are we, in the digital age, to be a free society...
...There are plenty of ways for software to be protected without the protection of law Copy protection systems, for example, give the copyright holder plenty of control over how and when the software is copied...
...They are being changed in ways that will re-introduce the very barriers that the Internet originally removed...
...Consider the example of "piano rolls...
...increasing the "costs" of intellectual property increases both the cost of production and the incentives to produce...
...Pushed by an army of high-powered lawyers, greased with piles of money from PACs, Congress and the courts have jumped into action to defend the old against the new...
...Napster is the most salient example of this world, but it is not the only one...
...Ordinary people might find these priorities a bit odd...
...Creativity is impossible without a rich public domain...
...The Soviet Union was not a place with either free speech or free beer...
...The thought and business leaders of the networking and storage industries will unite at George Gilder's annual Storewidth Conference to exchange insights on how the union of abundant bandwidth and unlimited networked storage will shape the future information economy...
...Both are the consequence of going digital: Digital technologies create and replicate reality much more efficiently than non-digital technology does...
...And contrary to the technology-doomsayers, this is a potential for making human life more, not less, human...
...They don't call it theft when they are recording takeoffs of prior recorded music...
...It now therefore covers actions far beyond the "commercial" exploitation of anything...
...Reprinted with permission of Random House...
...But just at the cusp of this future, at the same time that we are being pushed to the world where anyone can "rip, mix [and] burn," a countermovement is raging all around...
...THE DIGITAL DILEMMA I n proliferating forms of signatures, searches, sorts and surveillance, digital technology, tied to law, now promises almost perfect control over content and its distribution...
...The first real Napster case was cable television...
...It will determine what the "free" means in our selfcongratulatory claim that we are now, and will always be, a "free society...
...This will mean a world of change...
...Courts are policy makers, and they must ask how best to respond...
...But the benefit for creativity from more works falling into the commons would be large...
...Our outrage at China notwithstanding, we should remember that before 1891, the copyrights of foreigners were not protected in the United States...
...Yet there are elements of this future that we can fairly imagine...
...With these ideals in mind, here are some first steps to freeing culture: BLACK HOLE OF COPYRIGHT Authors and creators deserve to receive the benefits of their creation...
...No modern phenomenon better demonstrates the importance of free resources to innovation and creativity than the Internet...
...The reason copyright law doesn't include source code is that it is believed that that would make the software unprotectable.The open code movement might throw that view into doubt, but even if one believes it, the remedy-no source codeis worse than the harm...
...The same with a film producer: Hollywood studios forecast revenues a few years into the future, not ninety-five...
...There is no registration requirement-every creative act reduced to a tangible medium is now subject to copyright protection.Your e-mail to your child or your child's finger painting: both are automatically protected...
...Each time, it is said with only a bit of exaggeration, that Mickey Mouse is about to fall into the public domain, the term of copyright for Mickey Mouse is extended...
...These are not the only examples of Congress striking a balance between compensation and control...
...In the last 40 years, Congress has extended the term of copyright retrospectively 11 times...
...This line-drawing problem reinforces my own view that the better solution is simply to go back to the Framers' notion of limited times...
...Once the copyright expired, that escrowed copy would be publicly available from the Copyright Office server...
...But the remedy for an overly strict system is a more relaxed system, not no system at all...
...And how we decide these questions will determine much about the kind of society we will become...
...The World Wide Web was the fantasy of a few MIT computer scientists.The perpetual tracking of preferences that allows a computer in Washington state to suggest an artist I might like because of a book I just purchased was an idea that no one had made famous before the Internet made it real...
...Congress should also, and most obviously, radically improve funding for the Patent Office, and mandate fundamental improvements in its functioning...
...Features of the architecture-both legal and technical-that originally created this environment of free creativity are now being altered...
...Which side outweighs the other can't be known a priori...
...The fact that content at any particular time is free tells us nothing about whether using that content is "theft...
...Piano roll manufacturers (and record companies, too) were therefore free to "steal" the content of the sheet music to make money with their new inventions...
...They must be paid for if they are to be produced...
...But "free" has a much more fundamental meaning-in French, libre rather than gratis, or for us non-French speakers, and as the philosopher of our age and founder of the Free Software Foundation, Richard Stallman, puts it, "free, not in the sense of free beer, but free in the sense of free speech...
...I am not arguing that there is "such a thing as a free lunch...
...The same solution is possible in the context of music on the Net...
...When the system protects Hemingway, we at least get to see how Hemingway writes.We get to learn about his style and the tricks he uses to make his work succeed...
...Thus the idea mix cannot be found simply by increasing the power of copyright holders to control...
...The Internet exposes unprecedented realms of copyrighted content to theft, but it also makes it possible (with the proper code) to control the use of copyrighted material much more fully than before...
...CONTROL & CREATIVIT the future of ideas is in the balance B Y LAWRENCE L E S S I C The Internet puts two futures in front of us, the one we seem to be taking and the one we could...
...Other conservatives are a bit more colorful about the point...
...It therefore was a far less powerful "exclusive right" than the exclusive right granted to other authors...
...but encourages others to build freely on the ideas that underlie it...
...We refer to plots in movies to tell jokes without the permission of the director.We read books to our children borrowed from a library without any payment for performance rights to the original copyright holder...
...Read the license," they're likely to demand...
...But the Internet itself is also changing...
...To those who argue that control is necessary if innovation is to occur, and that more control will yield more innovation, the Internet is the simplest and most direct reply...
...and in the other-where the harm is most pronounced-the law stands back...
...Some see these cases (in particular the MP3.com and Napster cases) as simple...
...someone else, the day after...
...It is best described as a constitutional question: It is about the fundamental values that define this society and whether we will allow those values to change...
...Instead, Congress has struck a balance between assuring that copyright owners are compensated and assuring that an adequate range of material remains in the public domain for others to draw upon and use...
...We give authors certain exclusive rights, but in exchange we get a richer public domain...
...New performers had the right to break into the market, by taking music made famous by others and re-recording it, after the payment of a small compulsory fee...
...They are the consequences of falling costs, and hence falling barriers to creativity...
...The effect of this compromise, though limiting the rights of original authors, is to expand the creative opportunity of others...
...But even if the scope of controlled content has grown, in principle there remains a constitutional limitation on this expansion...
...The American Spectator, editor Spencer Reiss and Google co-founder Larry Page, master parallel computing architect, investigate Google's speed secrets...
...You shouldn't be allowed to rifle through my desk...
...Innovation in the latter field was protected from power in the former...
...A change in the copyright term would have no effect on the incentives for authors to produce work today...
...Registration need not be difficult...
...Overprotecting intellectual property is as harmful as underprotecting it...
...Because the law slipped into using the term "copy" in 1909, it has now extended its reach to every act of duplication, by printing press or computer memory...
...The solution to this black hole of copyright is to force those who benefit from copyright to take steps to protect their state-backed benefit...
...Congress has often had to balance the rights of free access against the rights of control...
...Congress can address the increased exposure to theft, however, without a protectionist regime for existing media control...
...Einstein's theory of relativity is a free resource.You can take it and use it without the permission of anyone...
...it stimulates the flourishing of our culture...
...If copyright were returned to a meaningfully "limited time," then we wouldn't need to worry so much about drawing commercial vs...
...reduce the output of literature...
...But reducing too much to private property can be bad medicine...
...if you raise the cost of the input, you get less of the output...
...or 2) the permission one needs is granted neutrally...
...They don't, in other words, call it theft when they are using music for free that has been defined by the copyright system to be fair and appropriate use...
...In the context of porn, privacy and taxation, courts and the government have insisted that we should wait to see how the network develops...
...it protects the moral entitlements of people to the fruits of their labors...
...Neither are the resources that I am talking about the product of altruism...
Vol. 35 • January 2002 • No. 1
