Free Culture, Lawrence Lessig [best value ebook reader txt] 📗

and Human Resources, House Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150-57 (statement of James Love).

4. International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization (Washington, D.C., 2000), 15.

5. See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24 May 1999, A1, available at link #57 ("compulsory licenses and gray markets pose a threat to the entire system of intellectual property protection"); Robert Weissman, "AIDS and Developing Countries: Democratizing Access to Essential Medicines," Foreign Policy in Focus 4:23 (August 1999), available at link #58 (describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property Rights and Compassion, a Synopsis," Widener Law Symposium Journal (Spring 2001): 175.

6. Jonathan Krim, "The Quiet War over Open-Source," Washington Post, 21 August 2003, E1, available at link #59; William New, "Global Group's Shift on 'Open Source' Meeting Spurs Stir," National Journal's Technology Daily, 19 August 2003, available at link #60; William New, "U.S. Official Opposes 'Open Source' Talks at WIPO," National Journal's Technology Daily, 19 August 2003, available at link #61.

7. I should disclose that I was one of the people who asked WIPO for the meeting.

8. Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with "open source" software or software in the public domain. Microsoft's principal opposition is to "free software" licensed under a "copyleft" license, meaning a license that requires the licensee to adopt the same terms on any derivative work. See Bradford L. Smith, "The Future of Software: Enabling the Marketplace to Decide," Government Policy Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, American Enterprise Institute for Public Policy Research, 2002), 69, available at link #62. See also Craig Mundie, Microsoft senior vice president, The Commercial Software Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63.

9. Krim, "The Quiet War over Open-Source," available at link #64.

10. See Drahos with Braithwaite, Information Feudalism, 210-20.

11. John Borland, "RIAA Sues 261 File Swappers," CNET News.com, 8 September 2003, available at link #65; Paul R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 September 2003, available at link #66; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," Washington Post, 10 September 2003, E1; Katie Dean, "Schoolgirl Settles with RIAA," Wired News, 10 September 2003, available at link #67.

12. Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com, 17 September 2003, available at link #68.

13. Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for Dylan Songs," Kansascity.com, 9 July 2003, available at link #69.

14. "BBC Plans to Open Up Its Archive to the Public," BBC press release, 24 August 2003, available at link #70.

15. "Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003, available at link #71.

US, NOW

1. See, for example, Marc Rotenberg, "Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology Law Review 1 (2001): par. 6-18, available at link #72 (describing examples in which technology defines privacy policy). See also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs between technology and privacy).

2. Willful Infringement: A Report from the Front Lines of the Real Culture Wars (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre production, available at link #72.

THEM, SOON

1. The proposal I am advancing here would apply to American works only. Obviously, I believe it would be beneficial for the same idea to be adopted by other countries as well.

2. There would be a complication with derivative works that I have not solved here. In my view, the law of derivatives creates a more complicated system than is justified by the marginal incentive it creates.

3. "A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, available at link #74.

4. Department of Veterans Affairs, Veteran's Application for Compensation and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at link #75.

5. Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967), 32.

6. Ibid., 56.

7. Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stanford: Stanford University Press, 2003), 187-216.

8. See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3 April 2002, available at link #76.

9. William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available at link #78. Professor Netanel has proposed a related idea that would exempt noncommercial sharing from the reach of copyright and would establish compensation to artists to balance any loss. See Neil Weinstock Netanel, "Impose a Noncommercial Use Levy to Allow Free P2P File Sharing," available at link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations Committee, 26 February 2002, available at link #80; Serguei Osokine, A Quick Case for Intellectual Property Use Fee (IPUF), 3 March 2002, available at link #81; Jefferson Graham, "Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May 2002, available at link #82; Steven M. Cherry, "Getting Copyright Right," IEEE Spectrum Online, 1 July 2002, available at link #83; Declan Mc-Cullagh, "Verizon's Copyright Campaign," CNET News.com, 27 August 2002, available at link #84.

Fisher's proposal is very similar to Richard Stallman's proposal for DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly proportionally, though more popular artists would get more than the less popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85.

10. Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069-70.

11. A good example is the work of Professor Stan Liebowitz. Liebowitz is to be commended for his careful review of data about infringement, leading him to question his own publicly stated position--twice. He initially predicted that downloading would substantially harm the industry. He then revised his view in light of the data, and he has since revised his view again. Compare Stan J. Liebowitz, Rethinking the Network Economy: The True Forces That Drive the Digital Marketplace (New York: Amacom, 2002), 173 (reviewing his original view but expressing skepticism) with Stan J. Liebowitz, "Will MP3s Annihilate the Record Industry?" working paper, June 2003, available at link #86.

Liebowitz's careful analysis is extremely valuable in estimating the effect of file-sharing technology. In my view, however, he underestimates the costs of the legal system. See, for example, Rethinking, 174-76.

ACKNOWLEDGMENTS

This book is the product of a long and as yet unsuccessful struggle that began when I read of Eric Eldred's war to keep books free. Eldred's work helped launch a movement, the free culture movement, and it is to him that this book is dedicated.

I received guidance in various places from friends and academics, including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and Kathleen Sullivan. And I received correction and guidance from many amazing students at Stanford Law School and Stanford University. They included Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hall- man, Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine Crump and Harry Surden, who helped direct their research, and to Laura Lynch, who brilliantly managed the army that they assembled, and provided her own critical eye on much of this.

Yuko Noguchi helped me to understand the laws of Japan as well as its culture. I am thankful to her, and to the many in Japan who helped me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University Business Law Center, for giving me the chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was there.

These are the traditional sorts of help that academics regularly draw upon. But in addition to them, the Internet has made it possible to receive advice and correction from many whom I have never even met. Among those who have responded with extremely helpful advice to requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as well as a long list of those who had specific ideas about ways to develop my argument. They included Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have missed anyone; with computers come glitches, and a crash of my e-mail system meant I lost a bunch of great replies.)

Richard Stallman and Michael Carroll each read the whole book in draft, and each provided extremely helpful correction and advice. Michael helped me to see more clearly the significance of the regulation of derivitive works. And Richard corrected an embarrassingly large number of errors. While my work is in part inspired by Stallman's, he does not agree with me in important places throughout this book.

Finally, and forever, I am thankful to Bettina, who has always insisted that there would be unending happiness away from these battles, and who has always been right. This slow learner is, as ever, grateful for her perpetual patience and love.

INDEX

ABC, 164, 321n academic journals, 262, 280-82 Adobe eBook Reader, 148-53 advertising, 36, 45-46, 127, 145-46, 167-68, 321n

Africa, medications for HIV patients in,

257-61

Agee, Michael, 223-24, 225 agricultural patents, 313n Aibo robotic dog, 153-55, 156, 157, 160 AIDS medications, 257-60

air traffic, land ownership vs., 1-3 Akerlof, George, 232

Alben, Alex, 100-104, 105, 198-99, 295,

317n alcohol prohibition, 200 Alice's Adventures in Wonderland (Carroll),

152-53

Allen, Paul, 100

All in the Family, 164, 165 Amazon, 278

American Association of Law Libraries, 232 American Graphophone Company, 56 Americans with Disabilities Act (1990),

318n

Andromeda, 203 Anello, Douglas, 60 animated cartoons, 21-24 antiretroviral drugs, 257-61 Apple Corporation, 203, 264, 302 architecture, constraint effected through,

122, 123, 124, 318n archive.org, 112

see also Internet Archive archives, digital, 108-15, 173, 222, 226-27 Aristotle, 150

Armstrong, Edwin Howard, 3-6, 184, 196 Arrow, Kenneth, 232

art, underground, 186

artists:

publicity rights on images of, 317n recording industry payments to, 52,

58-59, 74, 195, 196-97, 199, 301, 329n-30n

retrospective compilations on, 100-104 ASCAP, 18

Asia, commercial piracy in, 63, 64, 65, 302 AT&T, 6

Ayer, Don, 230, 237, 239, 244, 248

Bacon, Francis, 93

Barish, Stephanie, 38, 39, 46

Barlow,