James Boyle

The
Public
Domain

Enclosing the Commons of the Mind

The author has made this online version available under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License.

You can buy a paper copy here.

Acknowledgments

The ideas for this book come from the theoretical and practical work I have been doing for the last ten years. None of that work has been done alone. As a result, the list of people to whom I am indebted makes Oscar night acknowledgments look haiku-terse by comparison. Here I can mention only a few. I beg pardon for the inevitable omissions. First and foremost, my family has tolerated my eccentricities and fixations and moderated them with gentle and deserved mockery. “Want that insignia torn off your car, Dad? Then it would be in the public domain, right?”

My colleagues at Duke are one of the main influences on my work. I am lucky enough to work in the only “Center for the Study of the Public Domain” in the academic world. I owe the biggest debt of gratitude to my colleague Jennifer Jenkins, who directs the Center and who has influenced every chapter in this book. David Lange brought me to Duke. His work on the public domain has always been an inspiration to mine. Arti Rai’s remarkable theoretical and empirical studies have helped me to understand everything from software patents to synthetic biology. Jerry Reichman has supplied energy, insight, and a spirited and cosmopolitan focus on the multiple ways in which property can be protected. Jed Purdy and Neil Siegel commented on drafts and provided crucial insights on the construction of my argument. Catherine Fisk, Jim Salzman, Stuart Benjamin, Jonathan Wiener, Mitu Gulati, Jeff Powell, Chris Schroeder, and many, many others helped out—sometimes without knowing it, but often at the cost of the scarcest of all resources: time. Amidst a brilliant group of research assistants, Jordi Weinstock and David Silverstein stood out. Jordi showed a dogged ability to track down obscure 1950s songs that was almost scary. Additional thanks go to Jennifer Ma, Tolu Adewale, Paulina Orchard, and Emily Sauter. Balfour Smith, the coordinator of our Center, shepherded the manuscript through its many drafts with skill and erudition.

Duke is the most interdisciplinary university I have ever encountered and so the obligations flow beyond the law school. Professor Anthony Kelley, a brilliant composer, not only educated me in composition and the history of musical borrowing but co-taught a class on musical borrowing that dramatically influenced Chapter 6. Colleagues in the business school—particularly Jim Anton, a great economic modeler and greater volleyball partner, and Wes Cohen, a leading empiricist—all left their marks. Dr. Robert Cook-Deegan, leader of Duke’s Center for Public Genomics, and my wife Lauren Dame, associate director of the Genome Ethics, Law and Policy Center, provided crucial support to my work with the sciences in general and synthetic biology in particular. I was also inspired and informed by colleagues and students in computer science, English, history, and political science.

But the work I am describing here is—as the last chapter suggests—something that goes far beyond the boundaries of one institution. A large group of intellectual property scholars have influenced my ideas. Most importantly, Larry Lessig and Yochai Benkler have each given far more than they received from me in the “sharing economy” of scholarship. If the ideas I describe here have a future, it is because of the astounding leadership Larry has provided and the insights into “the wealth of networks” that Yochai brings. Jessica Litman, Pam Samuelson, Michael Carroll, Julie Cohen, Peggy Radin, Carol Rose, Rebecca Eisenberg, Mark Lemley, Terry Fisher, Justin Hughes, Neil Netanel, Wendy Gordon, David Nimmer, Tyler Ochoa, Tim Wu, and many others have all taught me things I needed to know. Jessica in particular caught and corrected (some of ) my many errors, while Pam encouraged me to think about the definition of the public domain in ways that have been vital to this book. Michael suggested valuable edits—though I did not always listen. Historical work by Carla Hesse, Martha Woodmansee, and Mark Rose has been central to my analysis, which also could not have existed but for work on the governance of the commons by Elinor Ostrom, Charlotte Hess, and Carol Rose. Kembrew McLeod and Siva Vaidhyanathan inspired my work on music and sampling. Peter Jaszi was named in my last book as the person who most influenced it. That influence remains.

Beyond the academy, my main debt is to the board members and staff of Creative Commons, Science Commons, and ccLearn. Creative Commons, on whose board I am proud to have served, is the brainchild of Larry Lessig and Hal Abelson; Science Commons and ccLearn are divisions of Creative Commons that I helped to set up which concentrate on the sciences and on education, respectively. The practical experience of building a “creative commons” with private tools—of allowing creative collaboration with people you have never met—has shaped this book far beyond the chapter devoted to it. Hal Abelson, Michael Carroll, and Eric Saltzman were on the midwife team for the birth of those organizations and became close friends in the process. Since the entire Creative Commons staff has made it routine to do seven impossible things before breakfast, it is hard to single out any one individual—but without Glenn Brown at Creative Commons and John Wilbanks at Science Commons, neither organization would exist today. Jimmy Wales, founder of Wikipedia and another Creative Commons board member, also provided key insights. Finally, but for the leadership of Laurie Racine neither Creative Commons nor our Center at Duke would be where they are today, and thus many of the experiments I describe in this book would not have happened.

The intellectual property bar is a fascinating, brilliant, and engagingly eccentric group of lawyers. I owe debts to many of its members. Whitney Broussard told me the dirty secrets of the music industry. Daphne Keller—a former student and later a colleague—helped in more ways than I can count.

A number of scientists and computer scientists made me see things I otherwise would not have—Drew Endy and Randy Ruttenberg in synthetic biology, Nobel laureates Sir John Sulston and Harold Varmus in genomics and biology more generally, Paul Ginsparg in astrophysics, and Harlan Onsrud in geospatial data. Paul Uhlir’s work at the National Academy of Sciences introduced me to many of these issues. The work of Richard Stallman, the creator of the free software movement, remains an inspiration even though he profoundly disagrees with my nomenclature here—and with much else besides.

Activists, civil rights lawyers, bloggers, and librarians have actually done much of the hard work of building the movement I describe at the end of this book. Jamie Love has touched, sparked, or masterminded almost every benign development I write about here, and novelist Cory Doctorow has either blogged it or influenced it. I have worked particularly closely with Manon Ress, Fred von Lohmann, Cindy Cohn, Jason Schultz, and Gigi Sohn. John Howkins and Gilberto Gil have provided considerable leadership internationally. But there are many, many others. The entire community of librarians deserves our thanks for standing up for free public access to knowledge for over two hundred years. Librarians are my heroes. They should be yours, too.

Some of the work contained here has been published in other forms elsewhere. Portions of Chapters 2 and 3 appeared as “The Second Enclosure Movement and the Construction of the Public Domain”; [1] Chapter 7 shares little textually but much in terms of inspiration with an article I co-wrote for PLoS Biology with Arti Rai, “Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons.” [2] For several years now I have been a columnist for the Financial Times’s “New Economy Policy Forum.” Portions of Chapter 5 and Chapter 9 had their origins in columns written for that forum. Chapter 10 has its roots both in my article “A Politics of Intellectual Property: Environmentalism for the Net?” [3] and in the symposium, Cultural Environmentalism @ 10,[4] that Larry Lessig kindly organized for the tenth anniversary of that article.

Finally, I need to thank the institutions who have supported this study. The Rockefeller Center in Bellagio provided an inspiring beginning. The Ford, Rockefeller, MacArthur, and Hewlett Foundations have generously supported my work, as have Duke Law School’s research grants and Bost Fellowships. My work on synthetic biology and the human genome was supported in part by a CEER grant from the National Human Genome Research Institute and the Department of Energy (P50 HG003391-02). In addition, my thanks go out to the anonymous donor whose generous donation allowed us to found the Center for the Study of the Public Domain, and to Bob Young and Laurie Racine, whose work made the Center possible. Yale University Press were supportive and critical in all the right places. I would like to thank them for agreeing to release this work under a Creative Commons license. What could be more appropriate to the book’s theme?

I could go on and on. But I will not. This flurry of names and areas of knowledge signifies more than just the deep thanks of a dilettante. It signifies the emergence of an area of concern, the coming together of very different groups around a shared problem—an imbalance in the rules that define property in the information age. It is that problem, its history, philosophy, and politics that I try to sketch out in the pages ahead.

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Preface: Comprised of at Least Jelly?

Each person has a different breaking point. For one of my students it was United States Patent number 6,004,596 for a “Sealed Crustless Sandwich.” In the curiously mangled form of English that patent law produces, it was described this way:

A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter.[1]

“But why does this upset you?” I asked; “you’ve seen much worse than this.” And he had. There are patents on human genes, on auctions, on algorithms.[2] The U.S. Olympic Committee has an expansive right akin to a trademark over the word “Olympic” and will not permit gay activists to hold a “Gay Olympic Games.” The Supreme Court sees no First Amendment problem with this.[3] Margaret Mitchell’s estate famously tried to use copyright to prevent Gone With the Wind from being told from a slave’s point of view.[4] The copyright over the words you are now reading will not expire until seventy years after my death; the men die young in my family, but still you will allow me to hope that this might put it close to the year 2100. Congress periodically considers legislative proposals that would allow the ownership of facts.[5] The Digital Millennium Copyright Act gives content providers a whole array of legally protected digital fences to enclose their work.[6] In some cases it effectively removes the privilege of fair use. Each day brings some new Internet horror story about the excesses of intellectual property. Some of them are even true. The list goes on and on. (By the end of this book, I hope to have convinced you that this matters.) With all of this going on, this enclosure movement of the mind, this locking up of symbols and themes and facts and genes and ideas (and eventually people), why get excited about the patenting of a peanut butter and jelly sandwich? “I just thought that there were limits,” he said; “some things should be sacred.”

This book is an attempt to tell the story of the battles over intellectual property, the range wars of the information age. I want to convince you that intellectual property is important, that it is something that any informed citizen needs to know a little about, in the same way that any informed citizen needs to know at least something about the environment, or civil rights, or the way the economy works. I will try my best to be fair, to explain the issues and give both sides of the argument. Still, you should know that this is more than mere description. In the pages that follow, I try to show that current intellectual property policy is overwhelmingly and tragically bad in ways that everyone, and not just lawyers or economists, should care about. We are making bad decisions that will have a negative effect on our culture, our kids’ schools, and our communications networks; on free speech, medicine, and scientific research. We are wasting some of the promise of the Internet, running the risk of ruining an amazing system of scientific innovation, carving out an intellectual property exemption to the First Amendment. I do not write this as an enemy of intellectual property, a dot-communist ready to end all property rights; in fact, I am a fan. It is precisely because I am a fan that I am so alarmed about the direction we are taking.

Still, the message of this book is neither doom nor gloom. None of these decisions is irrevocable. The worst ones can still be avoided altogether, and there are powerful counterweights in both law and culture to the negative trends I describe here. There are lots of reasons for optimism. I will get to most of these later, but one bears mentioning now. Contrary to what everyone has told you, the subject of intellectual property is both accessible and interesting; what people can understand, they can change—or pressure their legislators to change.

I stress this point because I want to challenge a kind of willed ignorance. Every news story refers to intellectual property as “arcane,” “technical,” or “abstruse” in the same way as they referred to former attorney general Alberto Gonzales as “controversial.” It is a verbal tic and it serves to reinforce the idea that this is something about which popular debate is impossible. But it is also wrong. The central issues of intellectual property are not technical, abstruse, or arcane. To be sure, the rules of intellectual property law can be as complex as a tax code (though they should not be). But at the heart of intellectual property law are a set of ideas that a ten-year-old can understand perfectly well. (While writing this book, I checked this on a ten-year-old I then happened to have around the house.) You do not need to be a scientist or an economist or a lawyer to understand it. The stuff is also a lot of fun to think about. I live in constant wonder that they pay me to do so.

Should you be able to tell the story of Gone With the Wind from a slave’s point of view even if the author does not want you to? Should the Dallas Cowboys be able to stop the release of Debbie Does Dallas, a cheesy porno flick, in which the title character brings great dishonor to a uniform similar to that worn by the Dallas Cowboys Cheerleaders? (After all, the audience might end up associating the Dallas Cowboys Cheerleaders with . . . well, commodified sexuality.)[7]

Should the U.S. Commerce Department be able to patent the genes of a Guyami Indian woman who shows an unusual resistance to leukemia?[8] What would it mean to patent someone’s genes, anyway? Forbidding scientific research on the gene without the patent holder’s consent? Forbidding human reproduction? Can religions secure copyrights over their scriptures? Even the ones they claim to have been dictated by gods or aliens? Even if American copyright law requires “an author,” presumably a human one?[9] Can they use those copyrights to discipline heretics or critics who insist on quoting the scripture in full?

Should anyone own the protocols—the agreed-upon common technical standards—that make the Internet possible? Does reading a Web page count as “copying” it?[10] Should that question depend on technical “facts” (for example, how long the page stays in your browser’s cache) or should it depend on some choice that we want to make about the extent of the copyright holder’s rights?

These questions may be hard, because the underlying moral and political and economic issues need to be thought through. They may be weird; alien scriptural dictation might qualify there. They surely aren’t uninteresting, although I admit to a certain prejudice on that point. And some of them, like the design of our telecommunications networks, or the patenting of human genes, or the relationship between copyright and free speech, are not merely interesting, they are important. It seems like a bad idea to leave them to a few lawyers and lobbyists simply because you are told they are “technical.”

So the first goal of the book is to introduce you to intellectual property, to explain why it matters, why it is the legal form of the information age. The second goal is to persuade you that our intellectual property policy is going the wrong way; two roads are diverging and we are on the one that doesn’t lead to Rome.

The third goal is harder to explain. We have a simple word for, and an intuitive understanding of, the complex reality of “property.” Admittedly, lawyers think about property differently from the way lay-people do; this is only one of the strange mental changes that law school brings. But everyone in our society has a richly textured understanding of “mine” and “thine,” of rights of exclusion, of division of rights over the same property (for example, between tenant and landlord), of transfer of rights in part or in whole (for example, rental or sale). But what about the opposite of property—property’s antonym, property’s outside? What is it? Is it just stuff that is not worth owning—abandoned junk? Stuff that is not yet owned—such as a seashell on a public beach, about to be taken home? Or stuff that cannot be owned—a human being, for example? Or stuff that is collectively owned—would that be the radio spectrum or a public park? Or stuff that is owned by no one, such as the deep seabed or the moon? Property’s outside, whether it is “the public domain” or “the commons,” turns out to be harder to grasp than its inside.

To the extent that we think about property’s outside, it tends to have a negative connotation; we want to get stuff out of the lost-and-found office and back into circulation as property. We talk of “the tragedy of the commons,”[11] meaning that unowned or collectively owned resources will be managed poorly; the common pasture will be overgrazed by the villagers’ sheep because no one has an incentive to hold back.

When the subject is intellectual property, this gap in our knowledge turns out to be important because our intellectual property system depends on a balance between what is property and what is not. For a set of reasons that I will explain later, “the opposite of property” is a concept that is much more important when we come to the world of ideas, information, expression, and invention. We want a lot of material to be in the public domain, material that can be spread without property rights. “The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”[12] Our art, our culture, our science depend on this public domain every bit as much as they depend on intellectual property. The third goal of this book is to explore property’s outside, property’s various antonyms, and to show how we are undervaluing the public domain and the information commons at the very moment in history when we need them most. Academic articles and clever legal briefs cannot solve this problem alone.

Instead, I argue that precisely because we are in the information age, we need a movement—akin to the environmental movement—to preserve the public domain. The explosion of industrial technologies that threatened the environment also taught us to recognize its value. The explosion of information technologies has precipitated an intellectual land grab; it must also teach us about both the existence and the value of the public domain. This enlightenment does not happen by itself. The environmentalists helped us to see the world differently, to see that there was such a thing as “the environment” rather than just my pond, your forest, his canal. We need to do the same thing in the information environment.

We have to “invent” the public domain before we can save it.

A word about style. I am trying to write about complicated issues, some of which have been neglected by academic scholarship, while others have been catalogued in detail. I want to advance the field, to piece together the story of the second enclosure movement, to tell you something new about the balance between property and its opposite. But I want to do so in a way that is readable. For those in my profession, being readable is a dangerous goal. You have never heard true condescension until you have heard academics pronounce the word “popularizer.” They say it as Isadora Duncan might have said “dowdy.” To be honest, I share their concern. All too often, clarity is achieved by leaving out the key qualification necessary to the argument, the subtlety of meaning, the inconvenient empirical evidence.

My solution is not a terribly satisfactory one. A lot of material has been exiled to endnotes. The endnotes for each chapter also include a short guide to further reading. I have used citations sparingly, but more widely than an author of a popular book normally does, so that the scholarly audience can trace out my reasoning. But the core of the argument is in the text.

The second balance I have struggled to hit is that between breadth and depth. The central thesis of the book is that the line between intellectual property and the public domain is important in every area of culture, science, and technology. As a result, it ranges widely in subject matter. Yet readers come with different backgrounds, interests, and bodies of knowledge. As a result, the structure of the book is designed to facilitate self-selection based on interest. The first three chapters and the conclusion provide the theoretical basis. Each chapter builds on those themes, but is also designed to be largely freestanding. The readers who thrill to the idea that there might be constitutional challenges to the regulation of digital speech by copyright law may wallow in those arguments to their hearts’ content. Others may quickly grasp the gist and head on for the story of how Ray Charles’s voice ended up in a mashup attacking President Bush, or the discussion of genetically engineered bacteria that take photographs and are themselves the subject of intellectual property rights. To those readers who nevertheless conclude that I have failed to balance correctly between precision and clarity, or breadth and depth, I offer my apologies. I fear you may be right. It was not for want of trying.

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Chapter 1:

Why Intellectual Property?

Imagine yourself starting a society from scratch. Perhaps you fought a revolution, or perhaps you led a party of adventurers into some empty land, conveniently free of indigenous peoples. Now your task is to make the society work. You have a preference for democracy and liberty and you want a vibrant culture: a culture with a little chunk of everything, one that offers hundreds of ways to live and thousands of ideals of beauty. You don’t want everything to be high culture; you want beer and skittles and trashy delights as well as brilliant news reporting, avant-garde theater, and shocking sculpture. You can see a role for highbrow, state-supported media or publicly financed artworks, but your initial working assumption is that the final arbiter of culture should be the people who watch, read, and listen to it, and who remake it every day. And even if you are dubious about the way popular choice gets formed, you prefer it to some government funding body or coterie of art mavens.

At the same time as you are developing your culture, you want a flourishing economy—and not just in literature or film. You want innovation and invention. You want drugs that cure terrible diseases, and designs for more fuel-efficient stoves, and useful little doodads, like mousetraps, or Post-it notes, or solar-powered backscratchers. To be exact, you want lots of innovation but you do not know exactly what innovation or even what types of innovation you want.

Given scarce time and resources, should we try to improve typewriters or render them obsolete with word processors, or develop functional voice recognition software, or just concentrate on making solar-powered backscratchers? Who knew that they needed Post-it notes or surgical stents or specialized rice planters until those things were actually developed? How do you make priorities when the priorities include things you cannot rationally value because you do not have them yet? How do you decide what to fund and when to fund it, what desires to trade off against each other?

The society you have founded normally relies on market signals to allocate resources. If a lot of people want petunias for their gardens, and are willing to pay handsomely for them, then some farmer who was formerly growing soybeans or gourds will devote a field to petunias instead. He will compete with the other petunia sellers to sell them to you. Voila! We do not need a state planner to consult the vegetable five-year plan and decree “Petunias for the People!” Instead, the decision about how to deploy society’s productive resources is being made “automatically,” cybernetically even, by rational individuals responding to price signals. And in a competitive market, you will get your petunias at very close to the cost of growing them and bringing them to market. Consumer desires are satisfied and productive resources are allocated efficiently. It’s a tour de force.

Of course, there are problems. The market measures the value of a good by whether people have the ability and willingness to pay for it, so the whims of the rich may be more “valuable” than the needs of the destitute. We may spend more on pet psychiatry for the traumatized poodles on East 71st Street than on developing a cure for sleeping sickness, because the emotional wellbeing of the pets of the wealthy is “worth more” than the lives of the tropical world’s poor. But for a lot of products, in a lot of areas, the market works—and that is a fact not to be taken for granted.

Why not use this mechanism to meet your cultural and innovation needs? If people need Madame Bovary or The New York Times or a new kind of antibiotic, surely the market will provide it? Apparently not. You have brought economists with you into your brave new world—perhaps out of nostalgia, or because a lot of packing got done at the last minute. The economists shake their heads.[1] The petunia farmer is selling something that is “a rivalrous good.” If I have the petunia, you can’t have it. What’s more, petunias are “excludable.” The farmer only gives you petunias when you pay for them. It is these factors that make the petunia market work. What about Madame Bovary, or the antibiotic, or The New York Times? Well, it depends. If books have to be copied out by hand, then Madame Bovary is just like the petunia. But if thousands of copies of Madame Bovary can be printed on a printing press, or photocopied, or downloaded from www.flaubertsparrot.com, then the book becomes something that is nonrival; once Madame Bovary is written, it can satisfy many readers with little additional effort or cost. Indeed, depending on the technologies of reproduction, it may be very hard to exclude people from Madame Bovary.

Imagine a Napster for French literature; everyone could have Madame Bovary and only the first purchaser would have to pay for it. Because of these “nonrival” and “nonexcludable” characteristics, Flaubert’s publisher would have a more difficult time coming up with a business plan than the petunia farmer. The same is true for the drug company that invests millions in screening and testing various drug candidates and ends up with a new antibiotic that is both safe and effective, but which can be copied for pennies. Who will invest the money, knowing that any product can be undercut by copies that don’t have to pay the research costs? How are authors and publishers and drug manufacturers to make money? And if they can’t make money, how are we to induce people to be authors or to be the investors who put money into the publishing or pharmaceutical business?

It is important to pause at this point and inquire how closely reality hews to the economic story of “nonexcludable” and “nonrival” public goods. It turns out that the reality is much more complex. First, there may be motivations for creation that do not depend on the market mechanism. People sometimes create because they seek fame, or out of altruism, or because an inherent creative force will not let them do otherwise. Where those motivations operate, we may not need a financial incentive to create. Thus the “problem” of cheap copying in fact becomes a virtue. Second, the same technologies that make copying cheaper may also lower the costs of advertising and distribution, cutting down on the need to finance expensive distribution chains. Third, even in situations that do require incentives for creativity and for distribution, it may be that being “first to market” with an innovation provides the innovator with enough of a head start on the competition to support the innovation.[2] Fourth, while some aspects of the innovation may truly be nonrival, other aspects may not. Software is nonrival and hard to exclude people from, but it is easy to exclude your customers from the help line or technical support. The CD may be copied cheaply; the concert is easy to police. The innovator may even be advantaged by being able to trade on the likely effects of her innovation. If I know I have developed the digital camera, I may sell the conventional film company’s shares short. Guarantees of authenticity, quality, and ease of use may attract purchasers even if unauthorized copying is theoretically cheaper.

In other words, the economic model of pure public goods will track our reality well in some areas and poorly in others—and the argument for state intervention to fix the problems of public goods will therefore wax and wane correspondingly. In the case of drug patents, for example, it is very strong. For lots of low-level business innovation, however, we believe that adequate incentives are provided by being first to market, and so we see no need to give monopoly power to the first business to come up with a new business plan—at least we did not until some disastrous patent law decisions discussed later in this book. Nor does a lowering of copying costs hurt every industry equally. Digital copies of music were a threat to the traditional music business, but digital copies of books? I am skeptical. This book will be freely and legally available online to all who wish to copy it. Both the publisher and I believe that this will increase rather than decrease sales.

Ignore these inconvenient complicating factors for a moment. Assume that wherever things are cheap to copy and hard to exclude others from, we have a potential collapse of the market. That book, that drug, that film will simply not be produced in the first place—unless the state steps in somehow to change the equation. This is the standard argument for intellectual property rights. And a very good argument it is. In order to solve the potentially “market-breaking” problem of goods that are expensive to make and cheap to copy, we will use what my colleague Jerry Reichman calls the “market-making” device of intellectual property. The state will create a right to exclude others from the invention or the expression and confer it on the inventor or the author. The most familiar rights of this kind are copyrights and patents. (Trademarks present some special issues, which I will address a little later.) Having been given the ability to forbid people to copy your invention or your novel, you can make them pay for the privilege of getting access. You have been put back in the position of the petunia farmer.

Pause for a moment and think of what a brilliant social innovation this is—at least potentially. Focus not on the incentives alone, but on the decentralization of information processing and decision making that a market offers. Instead of having ministries of art that define the appropriate culture to be produced this year, or turning the entire path of national innovation policy over to the government, intellectual property decentralizes the choices about what creative and innovative paths to pursue while retaining the possibility that people will actually get paid for their innovation and creative expression.

The promise of copyright is this: if you are a radical environmentalist who wants to alert the world to the danger posed by climate change, or a passionate advocate of homeschooling, or a cartoonist with a uniquely twisted view of life, or a musician who can make a slack key guitar do very strange things, or a person who likes to take amazingly saccharine pictures of puppies and put them on greeting cards—maybe you can quit your day job and actually make a living from your expressive powers. If the market works, if the middlemen and distributors are smart enough, competitive enough, and willing to take a chance on expression that competes with their in-house talent, if you can make it somehow into the public consciousness, then you can be paid for allowing the world to copy, distribute, and perform your stuff. You risk your time and your effort and your passion and, if the market likes it, you will be rewarded. (At the very least, the giant producers of culture will be able to assemble vast teams of animators and musicians and software gurus and meld their labors into a videotape that will successfully anesthetize your children for two hours; no small accomplishment, let me tell you, and one for which people will certainly pay.)

More importantly, if the system works, the choices about the content of our culture—the mix of earnest essays and saccharine greeting cards and scantily clad singers and poetic renditions of Norse myths—will be decentralized to the people who actually read, or listen to, or watch the stuff. This is our cultural policy and it is driven, in part, by copyright.

The promise of patent is this: we have a multitude of human needs and a multitude of individuals and firms who might be able to satisfy those needs through innovation. Patent law offers us a decentralized system that, in principle, will allow individuals and firms to pick the problem that they wish to solve. Inventors and entrepreneurs can risk their time and their capital and, if they produce a solution that finds favor in the marketplace, will be able to reap the return provided by the legal right to exclude—by the legal monopoly over the resulting invention. The market hints at some unmet need—for drugs that might reduce obesity or cure multiple sclerosis, or for Post-it notes or windshield wipers that come on intermittently in light rain—and the innovator and her investors make a bet that they can meet that need. (Not all of these technologies will be patentable—only those that are novel and “nonobvious,” something that goes beyond what any skilled person in the relevant field would have done.)

In return for the legal monopoly, patent holders must describe the technology well enough to allow anyone to replicate it once the patent term ends. Thus patent law allows us to avert two dangers: the danger that the innovation will languish because the inventor has no way to recover her investment of time and capital, and the danger that the inventor will turn to secrecy instead, hiding the details of her innovation behind black box technologies and restrictive contracts, so that society never gets the knowledge embedded in it. (This is a real danger. The medieval guilds often relied on secrecy to maintain the commercial advantage conveyed by their special skills, thus slowing progress down and sometimes simply stopping it. We still don’t know how they made Stradivarius violins sound so good. Patents, by contrast, keep the knowledge public, at least in theory;[3] you must describe it to own it.) And again, decisions about the direction of innovation have been largely, though not entirely, decentralized to the people who actually might use the products and services that result. This is our innovation policy and it is increasingly driven by patent.

What about the legal protection of trademarks, the little words or symbols or product shapes that identify products for us? Why do we have trademark law, this “homestead law for the English language”?[4] Why not simply allow anyone to use any name or attractive symbol that they want on their products, even if someone else used it first? A trademark gives me a limited right to exclude other people from using my mark, or brand name, or product shape, just as copyright and patent law give me a limited right to exclude other people from my original expression or my novel invention. Why create such a right and back it with the force of law?

According to the economists, the answer is that trademark law does two things. It saves consumers time. We have good reason to believe that a soap that says “Ivory” or a tub of ice cream that says “Häagen-Dazs” will be made by the same manufacturer that made the last batch of Ivory soap or Häagen-Dazs ice cream. If we liked the good before and we see the symbol again, we know what we are getting. I can work out what kind of soap, ice cream, or car I like, and then just look for the appropriate sign rather than investigating the product all over again each time I buy. That would be wasteful and economists hate waste. At the same time, trademarks fulfill a second function: they are supposed to give manufacturers an incentive to make good products—or at least to make products of consistent quality or price—to build up a good brand name and invest in consistency of its key features, knowing that no other firm can take their name or symbol. (Why produce a high-quality product, or a reliable cheap product, and build a big market share if a free rider could wait until people liked the product and then just produce an imitation with the same name but of lower quality?) The promise of trademark is that quality and commercial information flow regulate themselves, with rational consumers judging among goods of consistent quality produced by manufacturers with an interest in building up long-term reputation.

So there we have the idealized vision of intellectual property. It is not merely supposed to produce incentives for innovation by rewarding creators, though that is vital. Intellectual property is also supposed to create a feedback mechanism that dictates the contours of information and innovation production. It is not an overstatement to say that intellectual property rights are designed to shape our information marketplace. Copyright law is supposed to give us a self-regulating cultural policy in which the right to exclude others from one’s original expression fuels a vibrant public sphere indirectly driven by popular demand. At its best, it is supposed to allow a decentralized and iconoclastic cultural ferment in which independent artists, musicians, and writers can take their unique visions, histories, poems, or songs to the world—and make a living doing so if their work finds favor. Patent law is supposed to give us a self-regulating innovation policy in which the right to exclude others from novel and useful inventions creates a cybernetic and responsive innovation marketplace. The allocation of social resources to particular types of innovation is driven by guesses about what the market wants. Trademark law is supposed to give us a self-regulating commercial information policy in which the right to exclude others from one’s trade name, symbol, or slogan produces a market for consumer information in which firms have incentives to establish quality brand names and consumers can rely on the meaning and the stability of the logos that surround them. Ivory soap will always mean Ivory soap and Coke will mean Coke, at least until the owners of those marks decide to change the nature of their products.

Some readers will find my use of the term “intellectual property” mistaken and offensive. They will argue, and I agree, that the use of the term “property” can cause people mistakenly to conflate these rights with those to physical property. (I outline that process and its negative consequences in the next chapter.) They will argue, and again I agree, that there are big differences between the three fields I have described. Should we not just list the specific rights about which we are speaking—copyright, patent, or trademark? Both of these concerns are real and well-founded, but I respectfully disagree with the conclusion that we should give up the term “intellectual property.”

First, as I have tried to show above, while there are considerable differences between the three fields I discussed, there is also a core similarity—the attempt to use a legally created privilege to solve a potential “public goods problem.” That similarity can enlighten as well as confuse. Yes, copyright looks very different from patent, just as a whale looks very different from a mouse. But we do not condemn the scientist who notes that they are both “mammals”—a socially constructed category—so long as he has a reason for focusing on that commonality. Second, the language of intellectual property exists. It has political reality in the world. Sometimes the language confuses and misleads. There are two possible reactions to such a reality. One can reject it and insist on a different and “purified” nomenclature, or one can attempt to point out the misperceptions and confusions using the very language in which they are embedded. I do not reject the first tactic. It can be useful. Here, though, I have embraced the second.

I have provided the idealized story of intellectual property. But is it true? Did the law really develop that way? Does it work that way now? Does this story still apply in the world of the Internet and the Human Genome Project? If you believed the idealized story, would you know what kind of intellectual property laws to write? The answer to all of these questions is “not exactly.”

Like most social institutions, intellectual property has an altogether messier and more interesting history than this sanitized version of its functioning would suggest. The precursors of copyright law served to force the identification of the author, so that he could be punished if he proved to be a heretic or a revolutionary. The Statute of Anne—the first true copyright statute—was produced partly because of publishers’ fights with booksellers; the authorial right grew as an afterthought.[5] The history of patents includes a wealth of attempts to reward friends of the government and restrict or control dangerous technologies. Trademark law has shuttled uneasily between being a free-floating way to police competition so as to prohibit actions that courts thought were “unfair” and an absolute property right over an individual word or symbol.

But does intellectual property work this way now, promoting the ideal of progress, a transparent marketplace, easy and cheap access to information, decentralized and iconoclastic cultural production, self-correcting innovation policy? Often it does, but distressingly often it does the reverse. The rights that were supposed to be limited in time and scope to the minimum monopoly necessary to ensure production become instead a kind of perpetual corporate welfare—restraining the next generation of creators instead of encouraging them. The system that was supposed to harness the genius of both the market and democracy sometimes subverts both. Worse, it does so inefficiently, locking up vast swaths of culture in order to confer a benefit on a tiny minority of works. But this is too abstract. A single instance from copyright law will serve as a concrete example of what is at stake here. Later in the book I will give other examples.

You’ll Get My Library of Congress When . . .

Go to the Library of Congress catalogue. It is online at http://catalog.loc.gov/. This is an astounding repository of material—not just books and periodicals, but pictures, films, and music. The vast majority of this material, perhaps as much as 95 percent in the case of books, is commercially unavailable.[6] The process happens comparatively quickly. Estimates suggest that a mere twentyeight years after publication 85 percent of the works are no longer being commercially produced. (We know that when U.S. copyright required renewal after twenty-eight years, about 85 percent of all copyright holders did not bother to renew. This is a reasonable, if rough, guide to commercial viability.)[7]

Yet because the copyright term is now so long, in many cases extending well over a century, most of twentieth-century culture is still under copyright—copyrighted but unavailable. Much of this, in other words, is lost culture. No one is reprinting the books, screening the films, or playing the songs. No one is allowed to. In fact, we may not even know who holds the copyright. Companies have gone out of business. Records are incomplete or absent. In some cases, it is even more complicated. A film, for example, might have one copyright over the sound track, another over the movie footage, and another over the script. You get the idea. These works—which are commercially unavailable and also have no identifiable copyright holder—are called “orphan works.” They make up a huge percentage of our great libraries’ holdings. For example, scholars estimate that the majority of our film holdings are orphan works.[8] For books, the estimates are similar. Not only are these works unavailable commercially, there is simply no way to find and contact the person who could agree to give permission to digitize the work or make it available in a new form.

Take a conservative set of numbers. Subtract from our totals the works that are clearly in the public domain. In the United States, that is generally work produced before 1923. That material, at least, we can use freely. Subtract, too, the works that are still available from the copyright holder. There we can gain access if we are willing to pay. Yet this still leaves a huge proportion of twentieth- and twenty-first-century culture commercially unavailable but under copyright. In the case of books, the number is over 95 percent, as I said before; with films and music, it is harder to tell, but the percentages are still tragically high. A substantial proportion of that total is made up of orphan works. They cannot be reprinted or digitized even if we were willing to pay the owner to do so. And then comes the Internet. Right now, you can search for those books or films or songs and have the location of the work instantly displayed, as well as a few details about it. And if you live in Washington, D.C., or near some other great library, you can go to a reading room, and if the work can be found and has not been checked out, and has not deteriorated, you can read the books (though you probably will not be able to arrange to see the movies unless you are an accredited film scholar).

I was searching the Library of Congress catalogue online one night, tracking down a seventy-year-old book about politics and markets, when my son came in to watch me. He was about eight years old at the time but already a child of the Internet age. He asked what I was doing and I explained that I was printing out the details of the book so that I could try to find it in my own university library. “Why don’t you read it online?” he said, reaching over my shoulder and double-clicking on the title, frowning when that merely led to another information page: “How do you get to read the actual book?” I smiled at the assumption that all the works of literature were not merely in the Library of Congress, but actually on the Net: available to anyone with an Internet connection anywhere in the world—so that you could not merely search for, but also read or print, some large slice of the Library’s holdings. Imagine what that would be like. Imagine the little underlined blue hyperlink from each title—to my son it made perfect sense. The book’s title was in the catalogue. When you clicked the link, surely you would get to read it. That is what happened in his experience when one clicked a link. Why not here? It was an old book, after all, no longer in print. Imagine being able to read the books, hear the music, or watch the films—or at least the ones that the Library of Congress thought it worthwhile to digitize. Of course, that is ridiculous.

I tried to explain this to my son. I showed him that there were some works that could be seen online. I took him to the online photograph library, meaning to show him the wealth of amazing historical photographs. Instead, I found myself brooding over the lengthy listing of legal restrictions on the images and the explanation that reproduction of protected items may require the written permission of the copyright owners and that, in many cases, only indistinct and tiny thumbnail images are displayed to those searching from outside the Library of Congress “because of potential rights considerations.” The same was true of the scratchy folk songs from the twenties or the early film holdings. The material was in the Library, of course—remarkable collections in some cases, carefully preserved, and sometimes even digitized at public expense. Yet only a tiny fraction of it is available online. (There is a fascinating set of Edison’s early films, for example.)

Most of the material available online comes from so long ago that the copyright could not possibly still be in force. But since copyright lasts for seventy years after the death of the author (or ninety-five years if it was a corporate “work for hire”), that could be a very, very long time indeed. Long enough, in fact, to keep off limits almost the whole history of moving pictures and the entire history of recorded music. Long enough to lock up almost all of twentieth-century culture.

But is that not what copyright is supposed to do? To grant the right to restrict access, so as to allow authors to charge for the privilege of obtaining it? Yes, indeed. And this is a very good idea. But as I argue in this book, the goal of the system ought to be to give the monopoly only for as long as necessary to provide an incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money they are going to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a-million perennial favorite. The one-in-a-million lottery winner will benefit, of course, if his ticket comes up. And if the ticket is “free,” who would not take it? But the ticket is not free to the public. They pay higher prices for the works still being commercially exploited and, frequently, the price of complete unavailability for the works that are not.

Think of a one-in-a-million perennial favorite—Harry Potter, say. Long after J. K. Rowling is dust, we will all be forbidden from making derivative works, or publishing cheap editions or large-type versions, or simply reproducing it for pleasure. I am a great admirer of Ms. Rowling’s work, but my guess is that little extra incentive was provided by the thought that her copyright will endure seventy rather than merely fifty years after her death. Some large costs are being imposed here, for a small benefit. And the costs fall even more heavily on all the other works, which are available nowhere but in some moldering library stacks. To put it another way, if copyright owners had to purchase each additional five years of term separately, the same way we buy warranties on our appliances, the economically rational ones would mainly settle for a fairly short period.

Of course, there are some works that are still being exploited commercially long after their publication date. Obviously the owners of these works would not want them freely available online. This seems reasonable enough, though even with those works the copyright should expire eventually. But remember, in the Library of Congress’s vast, wonderful pudding of songs and pictures and films and books and magazines and newspapers, there is perhaps a handful of raisins’ worth of works that anyone is making any money from, and the vast majority of those come from the last ten years. If one goes back twenty years, perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to the whole pudding in order to give the owners of the raisin slivers their due. But this pudding is almost all of twentieth-century culture, and we are restricting access to it when almost of all of it could be available.

If you do not know much about copyright, you might think that I am exaggerating. After all, if no one has any financial interest in the works or we do not even know who owns the copyright, surely a library would be free to put those works online? Doesn’t “no harm, no foul” apply in the world of copyright? In a word, no. Copyright is what lawyers call a “strict liability” system. This means that it is generally not a legal excuse to say that you did not believe you were violating copyright, or that you did so by accident, or in the belief that no one would care, and that your actions benefited the public. Innocence and mistake do not absolve you, though they might reduce the penalties imposed. Since it is so difficult to know exactly who owns the copyright (or copyrights) on a work, many libraries simply will not reproduce the material or make it available online until they can be sure the copyright has expired—which may mean waiting for over a century. They cannot afford to take the risk.

What is wrong with this picture? Copyright has done its job and encouraged the creation of the work. But now it acts as a fence, keeping us out and restricting access to the work to those who have the time and resources to trudge through the stacks of the nation’s archives. In some cases, as with film, it may simply make the work completely unavailable.

So far I have been talking as though copyright were the only reason the material is not freely available online. But of course, this is not true. Digitizing costs money (though less every year) and there is a lot of rubbish out there, stuff no one would ever want to make available digitally (though it must be noted that one man’s rubbish is another man’s delight). But that still leaves vast amounts of material that we would want, and be willing to pay, to have digitized. Remember also that if the material were legally free, anyone could get in on the act of digitizing it and putting it up. Google’s much-heralded effort to scan the books in major libraries is just the kind of thing I mean. But Google is being sued for violating copyright—even though it allows any author to “opt out” of its system, and even though under the Google system you cannot click to get the book if it is still under copyright, merely a snippet a few sentences long from the book.

If you are shaking your head as you read this, saying that no one would bother digitizing most of the material in the archives, look at the Internet and ask yourself where the information came from the last time you did a search. Was it an official and prestigious institution? A university or a museum or a government? Sometimes those are our sources of information, of course. But do you not find the majority of the information you need by wandering off into a strange click-trail of sites, amateur and professional, commercial and not, hobbyist and entrepreneur, all self-organized by internal referrals and search engine algorithms? Even if Google did not undertake the task of digitization, there would be hundreds, thousands, maybe millions of others who would—not with Google’s resources, to be sure. In the process, they would create something quite remarkable.

The most satisfying proofs are existence proofs. A platypus is an existence proof that mammals can lay eggs. The Internet is an existence proof of the remarkable information processing power of a decentralized network of hobbyists, amateurs, universities, businesses, volunteer groups, professionals, and retired experts and who knows what else. It is a network that produces useful information and services. Frequently, it does so at no cost to the user and without anyone guiding it. Imagine that energy, that decentralized and idiosyncratically dispersed pattern of interests, turned loose on the cultural artifacts of the twentieth century. Then imagine it coupled to the efforts of the great state archives and private museums who themselves would be free to do the same thing. Think of the people who would work on Buster Keaton, or the literary classics of the 1930s, or the films of the Second World War, or footage on the daily lives of African-Americans during segregation, or the music of the Great Depression, or theremin recordings, or the best of vaudeville. Imagine your Google search in such a world. Imagine that Library of Congress. One science fiction writer has taken a stab. His character utters the immortal line, “Man, you’ll get my Library of Congress when you pry my cold dead fingers off it!”[9]

Familiar with the effect of this kind of train of thought on his father, my son had long since wandered off in search of a basketball game to watch. But I have to admit his question was something of an epiphany for me: Where do you click to get the actual book?

The response I get from a lot of people is that this vision of the Library of Congress is communism, pure and simple. Such people view Google’s attempt to digitize books as simple theft. Surely it will destroy the incentives necessary to produce the next beach novel, the next academic monograph, the next teen band CD, the next hundred-million-dollar movie? But this mistakes my suggestion. Imagine a very conservative system. First, let us make people demonstrate that they want a copyright, by the arduous step of actually writing the word copyright or the little © on the work. (At the moment, everyone gets a copyright as soon as the work is written down or otherwise fixed, whether they want one or not.) But how long a copyright? We know that the majority of works are only valuable for five or ten years. Let us give copyright owners more than double that, say twenty-eight years of exclusive rights. If prior experience is any guide, 85 percent of works will be allowed to enter the public domain after that period. If that isn’t generous enough, let us say that the small proportion of owners who still find value in their copyright at the end of twenty-eight years can extend their copyright for another twenty-eight years. Works that are not renewed fall immediately into the public domain. If you check the register after twenty-eight years and the work has not been renewed, it is in the public domain. Works that are renewed get the extra time.

Now this is a conservative suggestion, too conservative in my view, though still better than what we have now. Is it feasible? It would be hard to argue that it is not. This pretty much was the law in the United States until 1978. (My system is a little simpler, but the broad strokes are the same.) Since that point, in two broad stages, we have moved away from this system at the very moment in history when the Internet made it a particularly stupid idea to do so.

How have we changed the system? We have given copyrights to the creator of any original work as soon as it is fixed, so that you, reader, are the author of thousands of copyrighted works. Almost everything up on the Internet is copyrighted, even if its creators do not know that and would prefer it to be in the public domain. Imagine that you want to make a documentary and use a film clip that a student filmmaker has put up on his home page. Perhaps you want to adapt the nifty graphics that a high school teacher in Hawaii created to teach her calculus class, thinking that, with a few changes, you could use the material for your state’s K-12 physics program. Perhaps you are a collage artist who wishes to incorporate images that amateur artists have put online. None of the works are marked by a copyright symbol. Certainly they are up on the Internet, but does that mean that they are available for reprinting, adaptation, or incorporation in a new work?

In each of these cases, you simply do not know whether what you are doing is legal or not. Of course, you can take the risk, though that becomes less advisable if you want to share your work with others. Each broadening of the circle of sharing increases the value to society but also the legal danger to you. What if you want to put the course materials on the Net, or publish the anthology, or display the movie? Perhaps you can try to persuade your publisher or employer or distributor to take the risk. Perhaps you can track down the authors of every piece you wish to use and puzzle through the way to get a legal release from them stating that they give you permission to use the work they did not even know they had copyright over. Or you can give up. Whatever happens, you waste time and effort in trying to figure out a way of getting around a system that is designed around neither your needs nor the needs of many of the people whose work you want to use.

Apart from doing away with the need to indicate that you want your works to be copyrighted, we have lengthened the copyright term. We did this without any credible evidence that it was necessary to encourage innovation. We have extended the terms of living and even of dead authors over works that have already been created. (It is hard to argue that this was a necessary incentive, what with the works already existing and the authors often being dead.) We have done away with the need to renew the right. Everyone gets the term of life plus seventy years, or ninety-five years for corporate “works for hire.” All protected by a “strict liability” system with scary penalties. And, as I said before, we have made all those choices just when the Internet makes their costs particularly tragic.

In sum, we have forgone the Library of Congress I described without even apparently realizing we were doing so. We have locked up most of twentieth-century culture and done it in a particularly inefficient and senseless way, creating vast costs in order to convey proportionally tiny benefits. (And all without much complaint from those who normally object to inefficient government subsidy programs.) Worst of all, we have turned the system on its head. Copyright, intended to be the servant of creativity, a means of promoting access to information, is becoming an obstacle to both.

That, then, is one example of the stakes of the debate over intellectual property policy. Unfortunately, the problem of copyright terms is just one example, one instance of a larger pattern. As I will try to show, this pattern is repeated again and again in patents, in trademarks, and elsewhere in copyright law. This is not an isolated “glitch.” It is a complicated but relentless tendency that has led to a hypertrophy of intellectual property rights and an assault on the public domain. In fact, in many cases, the reality is even worse: there appears to be a complete ignorance about the value of the public domain. Property’s opposite, its outside, is getting short shrift.

To paraphrase a song from my youth, “how did we get here?” Where should we turn to understand the role of intellectual property in the era of the Internet and the decoding of the human genome? We could turn to the cutting edge of technology or to economics or information theory. But none of those would be as useful a starting place as a letter that was written about two hundred years ago, using a high-tech quill pen, about a subject far from the digital world.

[Back to contents]

Chapter 1: Further Reading

This chapter argues that at least one goal we have in an intellectual property system is the attempt to solve various “public goods problems.” (Subsequent chapters defend that view historically and normatively, discuss the ideas of moral right and natural right, the tradition of the droits d’auteur, and the similarities and dissimilarities between the arguments for tangible and intellectual property rights. Further reading on those issues can be found in the relevant chapter.)

The single best starting point for someone who wishes to understand an economic perspective on intellectual property is William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.: Belknap Press, 2003). The story laid out in this chapter is one largely (but not entirely) focused on the idea of intellectual property rights offered as incentives—the carrot that induces the author to write, the inventor to research, the investor to fund that research, and the corporation to develop attractive and stable brand names that convey reliable information to consumers. This is conventionally known as the ex ante perspective. But as the chapter also hints, intellectual property rights, like property rights in general, have a role after the innovation has occurred—facilitating its efficient exploitation, allowing inventors to disclose their inventions to prospective licensees without thereby losing control of them, and providing a state-constructed, neatly tied bundle of entitlements that can be efficiently traded in the market. Readers interested in these perspectives will benefit from looking at these articles: Edmund Kitch, “The Nature and Function of the Patent System,” Journal of Law and Economics 20 (1977): 265–290; Paul J. Heald, “A Transaction Costs Theory of Patent Law,” Ohio State Law Journal 66 (2005): 473–509; and Robert Merges, “A Transactional View of Property Rights,” Berkeley Technology Law Journal 20 (2005): 1477–1520. Of course, just as the incentives account of intellectual property has its skeptics, so these ex post theories attract skepticism from those who believe that, in practice, the rights will not be clear and well-delineated but vague and potentially overlapping, that the licensing markets will find themselves entangled in “patent thickets” from which the participants can escape only at great cost or by ignoring the law altogether. It is worth comparing Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998): 698–701, with John Walsh, Ashish Arora, and Wesley Cohen, “Effects of Research Tool Patents and Licensing on Biomedical Innovation,” in Patents in the Knowledge-Based Economy (Washington D.C.: National Academies Press, 2003), 285–340. There is a nice irony to imagining that the necessary mechanism of the efficient market is “ignore the property rights when they are inconvenient.”

The skeptics argue that the alternative to a deeply commodified world of invention and innovation, with hundreds of thousands of licensing markets, is a rich information and innovation commons, from which all can draw freely, supporting a thin and well-defined layer of intellectual property rights close to the ultimate commercially viable innovation. The rhetorical structure of the debate—replete with paradox and inversion—is laid out in James Boyle, “Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property,” Vanderbilt Law Review 53 (2000): 2007–2039. For some of the difficulties in the attempt to arrive at a coherent economic theory of intellectual property, see James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 35–46. Finally, while I urge that at the outset we must care about the actual effects and economic incentives provided by intellectual property rights, I am by no means asserting that we should stop there. Indeed to do so would dramatically impoverish our view of the world. James Boyle, “Enclosing the Genome: What Squabbles over Genetic Patents Could Teach Us,” in Perspectives on Properties of the Human Genome Project, ed. F. Scott Kieff (San Diego, Calif.: Elsevier Academic Press, 2003), 97, 107–109.

In other words, as all this suggests, this chapter is only an introduction to a rich and complex debate.

[Back to contents]

Chapter 2:

Thomas Jefferson Writes a Letter

On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.[1] It was a quiet week in Jefferson’s correspondence. He wrote a letter to Madison about the appointment of a tax assessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new “Rudiments of English Grammar,” discussed the orthography of nouns ending in “y,” accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.[2] But on the 13th of August, Jefferson’s mind was on intellectual property, and most specifically, patents.

Jefferson’s writing is, as usual, apparently effortless. Some find his penmanship a little hard to decipher. To me, used to plowing through the frenzied chicken tracks that law students produce during exams, it seems perfectly clear. If handwriting truly showed the architecture of the soul, then Jefferson’s would conjure up Monticello or the University of Virginia. There are a few revisions and interlineations, a couple of words squeezed in with a caret at the bottom of the line, but for the most part the lines of handwriting simply roll on and on—“the fugitive fermentation of an individual brain,”[3] to quote a phrase from the letter, caught in vellum and ink, though that brain has been dust for more than a century and a half. I love libraries. I love the mushroom smell of gently rotting paper, the flaky crackle of manuscripts, and the surprise of matching style of handwriting with style of thought. Today, though, I am viewing his letter over the Internet on a computer screen. (You can too. The details are [in the footnotes].)

I think Jefferson would have been fascinated by the Internet. After all, this was the man whose library became the Library of Congress,[4] who exemplifies the notion of the brilliant dabbler in a hundred fields, whose own book collection was clearly a vital and much consulted part of his daily existence, and whose vision of politics celebrates the power of an informed citizenry. Admittedly, the massive conflicts between Jefferson’s announced principles and his actions on the issue of slavery have led some, though not me, to doubt that there is any sincerity or moral instruction to be found in his words.[5] But even those who find him a sham can hardly fail to see the continual and obvious joy he felt about knowledge and its spread.

In the letter to Isaac McPherson, a letter that has become very famous in the world of the digerati,[6] this joy becomes manifest. The initial subject of the correspondence seems far from the online world. McPherson wrote to Jefferson about “elevators, conveyers and Hopper-boys.” Specifically, he wanted to know Jefferson’s opinion of a patent that had been issued to Mr. Oliver Evans. Jefferson devotes a paragraph to a recent retrospective extension of patent rights (he disapproves) and then turns to Evans’s elevators.

Patents then, as now, were only supposed to be given for inventions that were novel, nonobvious, and useful. Jefferson had considerable doubt whether Evans’s device, essentially a revolving string of buckets used to move grain, actually counted as “an invention.” “The question then whether such a string of buckets was invented first by Oliver Evans, is a mere question of fact in mathematical history. Now, turning to such books only as I happen to possess, I find abundant proof that this simple machinery has been in use from time immemorial.” Jefferson cites from his library example after example of references to the “Persian wheel”—a string of buckets to move water. The display of scholarship is effortless and without artifice. If the device existed to move water, he declares, Mr. Evans can hardly patent it to move grain. “If one person invents a knife convenient for pointing our pens, another cannot have a patent right for the same knife to point our pencils. A compass was invented for navigating the sea; another could not have a patent right for using it to survey land.”[7]

So far as we can tell, this was the only part of the letter that interested McPherson. Later correspondence indicates that he had a pamphlet printed questioning the patent.[8] But while it is impressive to see Jefferson’s easy command of historical evidence or his grasp of the importance of limiting the subject matter, scope, and duration of patents, these qualities alone would not have given the letter the fame it now has. It is when Jefferson turns to the idea of intellectual property itself that the letter becomes more than a historical curiosity. In a couple of pages, quickly jotted down on a humid August day in 1813, he frames the issue as well as anyone has since.

He starts by dismissing the idea “that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs.” In lines that will sound strange to those who assume that the framers of the Constitution were property absolutists, Jefferson argues that “stable ownership” of even tangible property is “a gift of social law.” Intellectual property, then, has still less of a claim to some permanent, absolute, and natural status.

[W]hile it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.[9]

Jefferson’s point here may seem obscure to us. We are not used to starting every argument from first principles. But it is in fact quite simple. It is society that creates property rights that go beyond mere occupancy. It does so for several reasons—reasons of both practicality and natural justice. (Elsewhere in his writings, Jefferson expands on this point at greater length.) One of those reasons has to do with the difficulty, perhaps even the impossibility, of two different people having full and unfettered ownership of the same piece of property simultaneously. Another linked reason comes from the practicality of excluding others from our property, so that we can exploit it secure from the plunder or sloth of others. The economists you encountered in Chapter 1 have, with their usual linguistic felicity, coined the terms “rivalrous” and “excludable” to describe these characteristics.

With rivalrous property, one person’s use precludes another’s. If I drink the milk, you cannot. Excludable property is, logically enough, property from which others can easily be excluded or kept out. But ideas seem to have neither of these characteristics.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possess the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.[10]

Those who quote the passage sometimes stop here, which is a shame, because it leaves the impression that Jefferson was unequivocally against intellectual property rights. But that would be a considerable overstatement. When he says that inventions can never be the subject of property, he means a permanent and exclusive property right which, as a matter of natural right, no just government could abridge. However, inventions could be covered by temporary state-created monopolies instituted for the common good. In the lines immediately following the popularly quoted excerpt, Jefferson goes on:

Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.[11]

Jefferson’s message was a skeptical recognition that intellectual property rights might be necessary, a careful explanation that they should not be treated as natural rights, and a warning of the monopolistic dangers that they pose. He immediately goes on to say something else, something that is, if anything, more true in the world of patents on Internet business methods and gene sequences than it was in the world of “conveyers and Hopper-boys.”

Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.[12]

So Jefferson gives us a classic set of cautions, cautions that we should be required to repeat, as police officers repeat the Miranda Warning to a suspect. In this case, they should be repeated before we rush off into the world of intellectual property policy rather than before we talk to the police without our lawyers present.

The Jefferson Warning

Like the Miranda Warning, the Jefferson Warning has a number of important parts.

First, the stuff we cover with intellectual property rights has certain vital differences from the stuff we cover with tangible property rights. Partly because of those differences, Jefferson, like most of his successors in the United States, does not see intellectual property as a claim of natural right based on expended labor. Instead it is a temporary state-created monopoly given to encourage further innovation.
Second, there is no “entitlement” to have an intellectual property right. Such rights may or may not be given as a matter of social “will and convenience” without “claim or complaint from any body.”
Third, intellectual property rights are not and should not be permanent; in fact they should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place.
Fourth, a linked point, they have considerable monopolistic dangers—they may well produce more “embarrassment than advantage.” In fact, since intellectual property rights potentially restrain the benevolent tendency of “ideas . . . [to] freely spread from one to another over the globe, for the moral and mutual instruction of man,” they may in some cases actually hinder rather than encourage innovation.
Fifth, deciding whether to have an intellectual property system is only the first choice in a long series.[13] Even if one believes that intellectual property is a good idea, which I firmly do, one will still have the hard job of saying which types of innovation or information are “worth to the public the embarrassment” of an exclusive right, and of drawing the limits of that right. This line-drawing task turns out to be very difficult. Without the cautions that Jefferson gave us it is impossible to do it well.

Jefferson’s message was famously echoed and amplified thirty years later in Britain by Thomas Babington Macaulay.[14] Macaulay’s speeches to the House of Commons in 1841 on the subject of copyright term extension still express better than anything else the position that intellectual property rights are necessary evils which must be carefully circumscribed by law. In order for the supply of valuable books to be maintained, authors “must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.” Patronage is rejected out of hand. “I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles.”[15]

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. . . . I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.[16]

Notice that it is the monopolistic quality of intellectual property that really disturbs Macaulay. His was a generation of thinkers for whom the negative effect of monopolies of any kind (and state-granted monopolies in particular) was axiomatic. He becomes almost contemptuous when one of the supporters of copyright extension declared that it was merely “a theory” that monopoly makes things expensive. Macaulay agrees, tongue in cheek. “It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates.”[17]

These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,[18] and, with one significant recent exception,[19] historians of intellectual property have agreed.[20] Jefferson himself had believed that the Constitution should have definite limits on both the term and the scope of intellectual property rights.[21] James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.[22] Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen “very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.”[23]

It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them—Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term. Here is Macaulay again, waxing eloquently sarcastic about the costs and benefits of extending the copyright term so that it would last many years after the author’s death:

I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson’s works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor’s servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman’s Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook’s shop underground.[24]

Again, I am struck by how seamlessly Macaulay coupled beautiful, evocative writing and careful, analytic argument. Admittedly, he was remarkable even in his own time, but it is hard to imagine a contemporary speechwriter, let alone a politician, coming up with Dr. Johnson “cheered . . . under a fit of the spleen” or buying a “plate of shin of beef at a cook’s shop underground.” Almost as hard as it is to imagine any of them engaging in Jefferson’s correspondence about mammoth bones, orthography, and the practicalities of the nautical torpedo. But I digress.

Macaulay is not against using a lengthened copyright term to give an extra reward to writers, even if this would dramatically raise the price of books. What he objects to is dramatically raising the price of books written by long-dead authors in a way that benefits the authors hardly at all.

Considered as a reward to him, the difference between a twenty years’ and a sixty years’ term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson’s none the better; that I am to give five pounds for what to him was not worth a farthing.[25]

Though Macaulay won the debate over copyright term extension, it is worth noting here that his opponents triumphed in the end. As I pointed out in the last chapter, the copyright term in most of Europe and in the United States now lasts for the life of the author and an additional seventy years afterward, ten years more than the proposal which made Macaulay so indignant. In the United States, corporate owners of “works-for-hire” get ninety-five years.[26] The Supreme Court recently heard a constitutional challenge to the law which expanded the term of copyrights by twenty years to reach this remarkable length.[27] (Full disclosure: I helped prepare an amicus brief in that case.)[28] This law, the Sonny Bono Copyright Term Extension Act, also extended existing copyrights over works which had already been created.[29] As I observed earlier, this is particularly remarkable if the idea is to give an incentive to create. Obviously the authors of existing works were given sufficient incentive to create; we know that because they did. Why do we need to give the people who now hold their copyrights another twenty years of monopoly? This is all cost and no benefit. Macaulay would have been furious.

When the Supreme Court heard the case, it was presented with a remarkable friend-of-the-court brief from seventeen economists, several of them Nobel laureates.[30] The economists made exactly Macaulay’s argument, though in less graceful language. They pointed out that copyright extension imposed enormous costs on the public and yet conveyed tiny advantages, if any, to the creator. Such an extension, particularly over works that had already been written, hardly fit the limits of Congress’s power under the Constitution “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.”[31] Macaulay doubted that these enormously long terms would encourage the living. Surely they would do little to encourage the dead, while imposing considerable costs of access on the living? Thus they could hardly be said to “promote the progress” of knowledge as the Constitution requires. The Court was unmoved by this and other arguments. It upheld the law. I will return to its decision at the end of the book.

The intellectual property skeptics had other concerns. Macaulay was particularly worried about the power that went with a transferable and inheritable monopoly. It is not only that the effect of monopoly is “to make articles scarce, to make them dear, and to make them bad.” Macaulay also pointed out that those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals.[32] We might lose the works of Fielding or Gibbon, because a legatee found them distasteful and used the power of the copyright to suppress them. This is no mere fantasy, Macaulay tells us. After praising the novels of Samuel Richardson in terms that, to modern eyes, seem a little fervid (“No writings, those of Shakespeare excepted, show more profound knowledge of the human heart”), Macaulay recounts the story of Richardson’s grandson, “a clergyman in the city of London.” Though a “most upright and excellent man,” the grandson “had conceived a strong prejudice against works of fiction,” “thought all novel-reading not only frivolous but sinful,” and “had never thought it right to read one of his grandfather’s books.”[33] Extended copyright terms might hand over the copyright to such a man. The public would lose, not because they had to pay exorbitant prices that denied some access to the work, but because the work would be altogether suppressed. Richardson’s novels—Pamela, Clarissa Harlowe, and so on—are now the preserve of the classroom rather than the drawing room, so this might not seem like much of a loss. But Macaulay’s next example is not so easy to dismiss.

One of the most instructive, interesting, and delightful books in our language is Boswell’s Life of Johnson. Now it is well known that Boswell’s eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the Life of Johnson mentioned. Suppose that the law had been what my honourable and learned friend wishes to make it. Suppose that the copyright of Boswell’s Life of Johnson had belonged, as it well might, during sixty years, to Boswell’s eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden’s Britannia.[34]

From more recent examples we can see that outright suppression is not the only thing to fear. The authors’ heirs, or the corporations which have purchased their rights, may keep policing the boundaries of the work long after the original author is dead. In 2001, Alice Randall published The Wind Done Gone. As its title might indicate, The Wind Done Gone was a 220-page “critique of and reaction to” the world of Gone With the Wind by Margaret Mitchell.[35] Most crucially, perhaps, it was a version of Gone With the Wind told from the slaves’ point of view. Suddenly the actions of Rhett (“R”), Scarlett (“Other”), and an obviously gay Ashley (“Dreamy Gentleman”) come into new perspective through the eyes of Scarlett’s “mulatto” half-sister. Mitchell’s estate wanted to prevent publication of the book. At first they were successful.[36] As Yochai Benkler puts it,

Alice Randall, an African American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share the romantic view of the Confederacy. It was a federal judge in Atlanta who told Randall that she could not write her critique in the words she wanted to use—a judge enforcing copyright law.[37]

“They killed Miss Scarlett!” the astonished trial judge said after reading Randall’s book. My colleague Jennifer Jenkins, one of the lawyers in the case, recounts that the judge saw the case in relentlessly physical terms, seeing the parody as a “bulldozer” and Gone With the Wind as a walled country estate into which the bulldozer had violently trespassed. He was consequently unimpressed with the claim that this “bulldozer” was protected by the First Amendment. Eventually, the court of appeals overturned the district court’s judgment.[38] Fifty-two years after Margaret Mitchell’s death, it was a hotly debated point how much leeway copyright gave to others to comment upon, critique, embellish upon, and parody the cultural icon she had conjured up.

A Natural Right?

To some people, my argument so far—and Jefferson’s and Macaulay’s—will seem to miss the point. They see intellectual property rights not as an incentive, a method of encouraging the production and distribution of innovation, but as a natural or moral right. My book is mine because I wrote it, not because society or the law gives me some period of exclusivity over allowing the copying of its contents. My invention is mine because it came from my brain, not because the law declares a twenty-year monopoly over its production or distribution. My logo is mine because I worked hard on it, not because the state grants me a trademark in order to lower search costs and prevent consumer confusion. One answer is simply to say “In the United States, the framers of the Constitution, the legislature, and the courts have chosen to arrange things otherwise. In copyright, patent, and trademark law—despite occasional deviations—they have embraced the utilitarian view instead.”

Broadly speaking, that answer is correct.[39] It also holds, to a lesser extent, in Britain. Even in the droits d’auteur countries, which have a markedly different copyright law regime, it largely holds for their patent and trademark law systems, and utilitarian strands suffuse even “the sacred rights of authors.” So, on a national level, we have rejected or dramatically limited the natural rights view, and on an international level, we have rejected it in “industrial property”—patent and trademark—and modified it in copyright.

I think this answer is correct and important, but we have an obligation to go further. Partly that is because intuitions about ownership coming naturally with labor or discovery continue to influence the law. Partly it is because those moral intuitions are important and appealing. Partly it is because we might wish to modify or criticize our current system. Using the views of the framers, or current law, to preempt discussion is unsatisfactory—even though those views are of particular importance for the legal policy decisions we face in the short run, the issues on which much of my argument is concentrated.

There are varying stated grounds for natural or moral rights in intellectual creations. Some people may think the book is mine because I worked on it—a Lockean conception where I mix my sweat with these words and receive a property right in the process.

For all its attractions, there are considerable difficulties with such a view. Even within the world of tangible property, Locke’s theory is more complicated than a simple equation of labor with property right. Jefferson’s account of property is actually closer to Locke’s than many would realize. When Jefferson points out the difficulty in justifying a natural right even in an acre of land, let alone a book, his premises are not radically different from Locke’s. The same is true when Jefferson says that “[s]table ownership is the gift of social law, and is given late in the progress of society.” Even if natural right does create the ground for the property claim, it is “social law” that shapes its contours and guarantees its stability. Jefferson, of course, thought that was particularly true for intellectual property rights. In that context, he felt the natural rights argument was much weaker and the need for socially defined purposive contours and limitations stronger.

Locke’s own views on what we would think of as copyright are hard to determine. We do know that he had a strong antipathy to monopolies—particularly those affecting expression. He believed, for example, that giving publishers monopolies over great public domain books caused a disastrous fall in quality. Instead, he argued, such books should be open for all to compete to produce the best edition. Of course, he was writing in the context of monopolistic printing privileges—to which he was strongly opposed—rather than of individual authorial rights. Yet he went further and suggested that even for contemporary works, after a particular time in print—say fifty years—books could be printed by anyone.

I demand whether, if another act for printing should be made, it be not reasonable that nobody should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have liberty to print it: for by such titles as these, which lie dormant, and hinder others, many good books come quite to be lost.[40]

This sounds like a strongly utilitarian argument, rather than one based on labor and natural right. Of course, we are not bound by what Locke or Jefferson thought. Still it is striking to see the turn to a utilitarian conception from both of them.

The Lockean tradition is not the only one, of course. Others believe that the property right stems from the unique personality of each individual—the configurations of your individual genius made manifest in the lines of your sonnet. (Some limit the natural right to literary and expressive work; can a mousetrap or a drug molecule express the riddle and wonder of the human spirit?) Whatever their moral basis or their ambit, the common ground between these positions is the belief in a rationale for intellectual property rights beyond the utilitarian concerns of Jefferson or Macaulay.

The norms embodied in the moral rights or natural rights tradition are deeply attractive—at least to me. Many of us feel a special connection to our expressive creations—even the humble ones such as a term paper or a birthday poem. It is one of the reasons that the central moral rights in the French droits d’auteur, or author’s rights, tradition resonate so strongly with us. The entitlement of an author to be correctly attributed, to have some control over the integrity of his work, seems important regardless of its utilitarian functions.

Yet even as we find this claim attractive, we become aware of the need to find limiting principles to it. It gives us pause to think that Margaret Mitchell or her heirs could forbid someone parodying her work. Are there no free-speech limitations? When other forms of authorship, such as computer programs, are brought into copyright’s domain, does the power of the moral right decrease, while the need to limit its scope intensifies?

Then there is the question of length. How long is a natural right in expression or invention supposed to last? It seems absurd to imagine that Shakespeare’s or Mozart’s heirs, or those who had bought their copyrights, would still be controlling the performance, reproduction, and interpretation of their works hundreds of years after their death. If the rights are truly formed for a nonutilitarian purpose, after all, why should they expire? The person who first acquires property rights in land by work or conquest passes those rights down to heirs and buyers with the chain of transmission reaching to the present day. Should copyright follow suit? Even in France, the home of the strongest form of the droits d’auteur and of the “moral rights” tradition, the answer to this question was in the negative.

We owe a large part of the literary moral rights tradition to the immediate aftermath of the French Revolution. In France before the Revolution, as in England before the Statute of Anne, the first true copyright legislation, the regulation of publishing was through a set of “privileges” given to printers, not rights given to authors. Publishers would have a guild-enforced monopoly over certain titles. Their right was against competing publishers printing the list of titles over which they had the privilege. The Revolution abolished these privileges and, at first, put nothing in their place. On the other hand, as Carla Hesse’s fascinating work reveals, there was intermittent interference by the Prefecture of Police with those who copied most flagrantly. One such publisher was sternly instructed by the police in these terms:

[A]ccording to the Declaration of the Rights of Man, liberty means only the freedom to do what does not harm others; and that it harms others to appropriate the work of an author, because it is an infringement of the sacred right of property; and that such an enterprise, if it were to remain unpunished, would deprive citizens of the instruction they await from celebrated authors like M. Bernardin de St. Pierre, because no author would want to consecrate his labors to the instruction of his age if piracy were ever authorized.[41]

Note the interesting mixture of the language of the “sacred rights of property” and the strong utilitarian justification which cites effects on future literary production and the “instruction” of citizens.

More expansive conceptions of the rights of authors and, particularly, of publishers were also offered. Even before the Revolution, publishers had been making the arguments that their privileges were a form of property rights and had the very good sense to hire the young Diderot to make those arguments. Hesse quotes his words:

What form of wealth could belong to a man, if not a work of the mind, . . . if not his own thoughts, . . . the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it?[42]

Diderot’s theme is that authors’ rights should actually be stronger than other property rights for two reasons. First, they relate to the very essence of the person, the most “precious part of himself.” Second, they are the only property rights over something that has been added to the existing store of wealth rather than taken from it. Authorial property, unlike property in land, adds to the common store rather than detracting from it. Locke believed that a just assertion of property rights must leave “enough and as good” for others in the society. What could better satisfy this condition than a property right over a novel that did not exist before I wrote it? One hundred years later Victor Hugo echoed the same thoughts in a speech to the Conseil d’Etat and pointed out at the same time that literary property rights could potentially “reconcile” troublesome authors to society and state.

You feel the importance and necessity of defending property today. Well, begin by recognising the first and most sacred of all properties, the one which is neither a transmission nor an acquisition but a creation, namely literary property . . . reconcile the artists with society by means of property.[43]

Diderot wanted perpetual copyrights for authors and, agreeably to his employers, a correspondingly perpetual printing privilege. If the author’s heirs could not be traced, the copyright would devolve to the current publisher.

But as Hesse points out, there was another view of literary property—a much more skeptical one put forward best by Condorcet. This view is also an influential part of the heritage of the droits d’auteur, even if it is downplayed in its contemporary rhetoric. Condorcet began by framing the question of literary property as one of political liberty. “Does a man have the right to forbid another man to write the same words that he himself wrote first? That is the question to resolve.”[44] Like Jefferson, Condorcet is utterly unconvinced that property rights in a book can be compared to those in a field or a piece of furniture which can be occupied or used by only one man. The type of property is “based on the nature of the thing.” He concluded, again in language strikingly similar to Jefferson’s and Macaulay’s, that literary property was not a real property right but a privilege, and one which must be assessed on a utilitarian basis in terms of its contribution to enlightenment.[45]

Any privilege therefore imposes a hindrance on freedom, placing a restriction on the rights of other citizens; As such it is not only harmful to the rights of others who want to copy, but the rights of all those who want copies, and that which increases the price is an injustice. Does the public interest require that men make this sacrifice? That is the question that must be considered; In other words, are [literary] privileges needed and useful or harmful to the progress of enlightenment?[46]

Condorcet’s conclusion was that they were not necessary and that they could be harmful. “The books that most furthered the progress of enlightenment, the Encyclopédie, the works of Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits of a privilege.” Instead he seemed to favor a combination of “subscriptions” to authors with a trademark-like protection which allowed an author to identify a particular edition of his work as the genuine one, but which also allowed competing editions to circulate freely. In such a market, he believed that the price of the competing editions would fall to “natural” levels—today we would call it marginal cost—but the original author would still be able to charge a modest premium for the edition he authorized or certified because readers would prefer it as both more accurate and more authentic. One possible analogy is to the history of the fashion industry in the United States. It operates largely without design protection but relies heavily on the trademarks accorded to favored designers and brands. There are “knockoffs” of Armani or Balenciaga, but the wealthy still pay an enormous premium for the real thing.

Condorcet also insisted that whatever protection was accorded to literary works must not extend to the ideas within them. It is the truths within books that make them “useful”—a word that does not have the same luminance and importance for us today as it did for the philosophers of the Enlightenment or the French Revolution. He argued that any privilege given the author could not extend to “preventing another man from exhibiting the same truths, in perfectly the same order, from the same evidence” or from extending those arguments and developing their consequences. In a line that Hesse rightly highlights, he declares that any privileges do not extend over facts or ideas. “Ce n’est pas pour les choses, les idées; c’est pour les mots, pour le nom de l’auteur.”

In sum, Condorcet favors a limited privilege, circumscribed by an inquiry into its effects in promoting progress and enlightenment. The privilege only applies to expression and to “the author’s name,” rather than to facts and ideas. This is very much within the tradition of Jefferson and Macaulay.

Hesse argues, correctly I think, that two warring ideas shaped—or are at least useful ways of understanding—the development of the droits d’auteur tradition. On one side were Diderot and the publishers promoting an expansive and perpetual natural authorial right, which nevertheless was supposed to vest suspiciously easily in publishers. On the other was Condorcet, looking skeptically at authorial privileges as merely one type of state interference with free markets and the free circulation of books and ideas. In place of Diderot’s perpetual natural right, Condorcet sketched out a regime that encourages production and distribution by granting the minimum rights necessary for progress.

Different as they are, these two sides share a common ground. They both focus, though for different reasons, on “expression”—the imprimatur of the author’s unique human spirit on the ideas and facts that he or she transmits. It is this “original expression” that modern copyright and the modern droits d’auteur actually cover. In today’s copyright law, the facts and ideas in an author’s work proceed immediately into the public domain. In other work, I have argued that by confining the property right tightly to the “original expression” stemming from the unique personality of an individual author the law seems to accomplish a number of things simultaneously. It provides

a conceptual basis for partial, limited property rights, without completely collapsing the notion of property into the idea of a temporary, limited, utilitarian state grant, revocable at will. [At the same time it offers] a moral and philosophical justification for fencing in the commons, giving the author property in something built from the resources of the public domain—language, culture, genre, scientific community, or what have you. If one makes originality of spirit the assumed feature of authorship and the touchstone for property rights, one can see the author as creating something entirely new—not recombining the resources of the commons.[47]

That is an account of the romantic theory of authorship in the context of contemporary Anglo-American copyright law. But when one looks at the history of the French droits d’auteur tradition, it is striking how well those words describe that system as well. When the French legislature finally produced a law of authors’ rights it turned out, in Hesse’s words, to reflect “an epistemologically impure and unstable legal synthesis that combined an instrumentalist notion of the public good with a theory of authorship based on natural rights.”

Although it drew on a Diderotist rhetoric of the sanctity of individual creativity as an inviolable right, it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the privilège d’auteur of 1777, the law did not recognize the author’s claim beyond his lifetime but consecrated the notion, advanced first by Pierre Manuel to defend his edition of Mirabeau, that the only true heir to an author’s work was the nation as a whole. This notion of a public domain, of democratic access to a common cultural inheritance on which no particular claim could be made, bore the traces not of Diderot, but of Condorcet’s faith that truths were given in nature and, although mediated through individual minds, belonged ultimately to all. Progress in human understanding depended not on private knowledge claims, but on free and equal access to enlightenment. An author’s property rights were conceived as recompense for his service as an agent of enlightenment through publication of his ideas. The law of 1793 accomplished this task of synthesis through political negotiation rather than philosophical reasoning—that is, by refashioning the political identity of the author in the first few years of the Revolution from a privileged creature of the absolutist police state into a servant of public enlightenment.[48]

Hesse argues that this instability would continue through the revolutionary period. I agree; indeed I would argue that it does so to the present day. Why? The answer is simple. The moral rights view simply proved too much. Without a limiting principle—of time, or scope, or effect—it seemed to presage a perpetual and expansive control of expressive creations, and perhaps of inventions. Our intuition that this is a bad idea comes from our intuitive understanding that “Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the assimilation of literature to private enterprise.”[49]

This is the flip side of the arguments that Diderot and later Hugo put forward. Perhaps the romantic author does not create out of thin air. Perhaps he or she is deeply embedded in a literary, musical, cultural, or scientific tradition that would not flourish if treated as a set of permanently walled private plots. Even within the droits d’auteur tradition, we see a recognition that the continuing progress of enlightenment and the sacred genius of authors might both require a certain level of freedom in knowledge inputs and a certain level of control over knowledge outputs. We see also the recognition that these two requirements are in fundamental tension. When it comes to reconciling that tension we must turn in part to utilitarian effects. In short, we should pay attention to Jefferson and Macaulay and Condorcet, not just because their thoughts shaped the legal and philosophical traditions in which we now work—though that is particularly true in the case of the United States—but because they were right, or at least more right than the alternative.

Of course, we could build a culture around a notion of natural, absolute, and permanent rights to invention and expression. It is not a world many of us would want to live in. There are exceptions of course. In a recent New York Times op-ed, Mark Helprin—author of Winter’s Tale—argued that intellectual property should become perpetual.[50] After all, rights in real estate or personal property do not expire—though their owners might. Why is it that copyrights should “only” last for a lifetime plus seventy additional years, or patents for a mere twenty? Mr. Helprin expresses respect for the genius of the framers, but is unmoved by their firm command that rights be granted only for “limited times.” He concludes that it was a misunderstanding. Jefferson did not realize that while ideas cannot be owned, their expression can. What’s more, the framers were misled by their rustic times. “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.” Poor Jefferson. How lucky we are to have Mr. Helprin to remedy the consequences of his lack of vision.

Or perhaps not. Think of the way that Jefferson traced the origins of the mechanical arts used in the elevators and hopper-boys all the way back to ancient Persia. (In Mr. Helprin’s utopia, presumably, a royalty stream would run to Cyrus the Great’s engineers.) Jefferson’s point was that for the process of invention to work, we need to confine narrowly the time and scope of the state-provided monopoly, otherwise further inventions would become impossible. Each process or part of a new invention would risk infringing a myriad of prior patents on its subcomponents. Innovation would strangle in a thicket of conflicting monopolies with their roots vanishing back in time. Presumably the title of Mr. Helprin’s excellent novel would require clearance from Shakespeare’s heirs.

Of course, one could construct a more modest Lockean idea of intellectual property[51]—building on the notion of “enough and as good” left over for others and drawing the limits tightly enough to avoid the worst of Mr. Helprin’s excesses. But as one attempts to do this systematically, the power of the Jeffersonian vision becomes all the more apparent—at least as a starting place.

The Jefferson Warning will play an important role in this book. But my arguments here have implications far beyond Jefferson’s time, country, or constitutional tradition. In the last analysis, I hope to convince you of the importance of the Jefferson Warning or the views of Macaulay not because they are famous authorities and revered thinkers or because they framed constitutions or debated legislation. I wish to convince you that their views are important because they encapsulate neatly an important series of truths about intellectual property. We should listen to the Jefferson Warning not because it is prestigious but because of its insight. As the Diderot-Condorcet debates point out, the questions on which Jefferson and Macaulay focused do not disappear merely because one embraces a philosophy of moral rights—if anything, they become more pressing, particularly when one comes to define the limits of intellectual property in scope and time. I ask that those readers who remain leery of the Jeffersonian focus concentrate on that last issue. In an era when we have been expanding intellectual property rights relentlessly, it is a crucial one. If the Jefferson Warning produces in my unconvinced reader even a slight queasiness about the likely effects of such a process of expansion, it will have done its job—though in fact the tradition it represented was much richer than a simple utilitarian series of cautions.

A Tradition of Skeptical Minimalism

Eighteenth- and nineteenth-century intellectual property debates went beyond Macaulay’s antimonopolist focus on price, access, quality, and control of the nation’s literary heritage. While Macaulay is the best-remembered English skeptic from the 1840s, there were other, more radical skeptics who saw copyright primarily as a “tax on literacy” or a “tax on knowledge,” identical in its effects to the newspaper stamp taxes.[52] This was a time when mass literacy and mass education were the hotly debated corollaries to the enlargement of the franchise. The radical reformers looked with hostility on anything that seemed likely to raise the cost of reading and thus continue to restrict political and social debate to the wealthier classes. Macaulay worried about a world in which “a copy of Clarissa would . . . [be] as rare as an Aldus or a Caxton.”[53] His more radical colleagues saw copyright—to use our ugly jargon rather than theirs—as one of the many ways in which state communications policy is set and the communicative landscape tilted to favor the rich and powerful.[54] Macaulay worried about the effects of monopoly on literature and culture. All of them worried about the effects of copyright on democracy, on speech, on education. In the world of the Internet, these skeptics too have their contemporary equivalents.

Patent law also attracted its share of attacks in the mid-nineteenth century. A fusillade of criticism, often delivered by economists and cast in the language of free trade, portrayed the patent system as actively harmful.

At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden, September 1863, the following resolution was adopted “by an overwhelming majority”: “Considering that patents hinder rather than further the progress of invention; that they hamper the prompt general utilization of useful inventions; that on balance they cause more harm than benefit to the inventors themselves and, thus, are a highly deceptive form of compensation; the Congress of German Economists resolves: that patents of invention are injurious to common welfare.”[55]

In the Netherlands, the patent system was actually abolished in 1869 as a result of such criticisms. Observers in a number of other countries, including Britain, concluded that their national patent systems were doomed. Various proposals were made to replace patents, with state-provided prizes or bounties to particularly useful inventions being the most popular.[56]

These snippets are hardly sufficient to constitute any kind of survey of critical reactions to intellectual property systems, but I believe that nevertheless they give us some sense of typical debates. What do these debates tell us? From the early days of intellectual property as we know it now, the main objections raised against it were framed in the language of free trade and “anti-monopoly.” In the United States, the founding generation of intellectuals had been nurtured on the philosophy of the Scottish Enlightenment and the history of the struggle against royal monopolies. They saw the arguments in favor of intellectual property but warned again and again of the need to circumscribe both its term and its scope. This is the point at the heart of Jefferson’s letter. This is why he insisted that we understand the policy implications of the differences between tangible property and ideas, which “like fire” are “expansible over all space, without lessening their density in any point.”

What were the concerns of these early critics? They worried about intellectual property producing artificial scarcity, high prices, and low quality. They insisted that the benefits of each incremental expansion of intellectual property be weighed against its costs. Think of Macaulay discussing Johnson’s preference for a shin of beef rather than another slice of postmortem copyright protection. They worried about its justice; given that we all learn from and build on the past, do we have a right to carve out our own incremental innovations and protect them by intellectual property rights?[57] Price aside, they also worried that intellectual property (especially with a lengthy term) might give too much control to a single individual or corporation over some vital aspect of science and culture. In more muted fashion, they discussed the possible effects that intellectual property might have on future innovation. The most radical among them worried about intellectual property’s effects on political debate, education, and even control of the communications infrastructure, though they did not use that particular phrase. But the overwhelming theme was the promotion of free trade and a corresponding opposition to monopolies. Now if we were to stop here and simply require that today’s policy makers, legislators, and judges recite the Jefferson Warning before they rush off to make new intellectual property rules for the Internet and the genome, we would have accomplished a great deal. National and international policy makers are keen to set the “rules of the road for the digital age.” If they would momentarily pause their excited millenarian burbling and read the points scratched out with a quill pen in 1813, or delivered (without PowerPoint support) on the floor of the House of Commons in the 1840s, we would be better off. Everyone is beginning to understand that in the world of the twenty-first century the rules of intellectual property are both vital and contentious. How good it would be then if our debate on intellectual property policy were as vigorous and as informed as the debates of the nineteenth century. (Though we might hope it would also be more democratic.)

And yet . . . there is much that is missing from the skepticism of the eighteenth and nineteenth centuries and much that remains unclear. Look at the structure of these comments; they are framed as criticisms of intellectual property rather than defenses of the public domain or the commons, terms that simply do not appear in the debates. There is no real discussion of the world of intellectual property’s outside, its opposite. Most of these critics take as their goal the prevention or limitation of an “artificial” monopoly; without this monopoly our goal is to have a world of—what? The assumption is that we will return to a norm of freedom, but of what kind? Free trade in expression and innovation, as opposed to monopoly? Free access to expression and innovation, as opposed to access for pay? Or free access to innovation and expression in the sense of not being subject to the right of another person to pick and choose who is given access, even if all have to pay some flat fee? Or is it common ownership and control that we seek, including the communal right to forbid certain kinds of uses of the shared resource? The eighteenth- and nineteenth-century critics brushed over these points; but to be fair, we continue to do so today. The opposite of property, or perhaps we should say the opposites of property, are much more obscure to us than property itself.

For the most part, the antimonopolist view of intellectual property makes a simple case. Monopolies are bad. Have as few as possible and make them as narrow and as short as possible. This is a fine principle, but it falls short of an affirmative explanation and defense of the role of the public domain or the commons in enabling creativity, culture, and science. That is a shame because just as intellectual property is different from tangible property, so too is its opposite, its outside.

What are those opposites? The two major terms in use are “the public domain” and “the commons.” Both are used in multiple ways—probably a good thing. The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patents over powered flight are examples.

Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive. If one uses a spatial metaphor, the absolutist vision is a tessellated map. Areas of private property are neatly delineated from areas of the public domain. Mozart’s plot sits next to that of Britney Spears; one public, the other private. In the granular view, the map is more complex. Ms. Spears’ plot is cut through with rights to make fair use, as well as with limitations on ownership of standard themes. Instead of the simple tiled map, the granular vision has private plots with public roads running through them.

In popular discussion, we tend to use the absolutist view of both property and the public domain. Lawyers prefer the more complex view of property and are coming slowly to have a similarly complex view of the public domain. That is the definition I will be using.

The term “commons” is generally used to denote a resource over which some group has access and use rights—albeit perhaps under certain conditions. It is used in even more ways than the term “public domain.” The first axis along which definitions of the term “commons” vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here.

The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others. I will discuss this type of commons in Chapter 8.

So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works. Why is it so important? Let us start with the dry reasons.

Information and innovation are largely nonrival and nonexcludable goods. This is Jefferson’s point, though expressed in less graceful language. It has some interesting corollaries. Information is hard to value until you have it, but once you have it, how can you dispossess yourself of it? The apple can be taken back by the merchant if you decide not to buy. The facts or the formulae cannot. The moment when you might have decided to pay or not to pay is already over. The great economist Kenneth Arrow formalized this insight about information economics,[58] and it profoundly shapes intellectual property policy. (To a large extent, for example, the requirement of “patent disclosure” attempts to solve this problem. I can read all about your mousetrap but I am still forbidden from using it. I can decide whether or not to license your design at that point.) But for all the material in the public domain, where no intellectual property right is necessary, this point is solved elegantly by having the information be “free as the air to common use.” All of us can use the same store of information, innovation, and free culture. It will be available at its cost of reproduction—close to zero—and we can all build upon it without interfering with each other. Think of the English language, basic business methods, tables of logarithms, the Pythagorean theorem, Shakespeare’s insights about human nature, the periodic table, Ohm’s law, the sonnet form, the musical scale.

Would you have paid to purchase access to each of these? I might tell you that English was a superior communication tool—a really good command language for your cognitive operating system. There could be levels of access with corresponding prices. Would you pay to get access to “English Professional Edition”? We can certainly imagine such a way of organizing languages. (To some extent, scribal conventions operated this way. The languages of the professions still do. One paid for access to “law French” in the common law courts of England. One pays for an interpreter of contemporary legal jargon in today’s legal system. But even there the language is free to the autodidact.) We can imagine language, scientific knowledge, basic algebra, the tonic scale, or the classics of four-hundred-year-old literature all being available only as property. Those who had the highest “value for use” would purchase them. Those who did not value them highly—whether because they could not know what could be built with them until they had done so or because they did not have the money—would not. What would this world, this culture, this science, this market look like?

It would probably be very inefficient, the economists tell us. Perfect information is a defining feature of the perfect market. The more commodified and restricted our access to information, the less efficient the operation of the market, the more poorly it allocates resources in our society. (The permanent and in some sense insoluble tension between the need to provide incentives to generate information, thus raising its cost, and the need to have access to perfect information for efficiency is the central feature of our intellectual property policy.)[59] When we commodify too much we actually undermine creativity, since we are raising the price of the inputs for future creations—which might themselves be covered by intellectual property rights. But “inefficient” is too bloodless a way to describe this world. It would be awful.

Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a public domain of freely available material than they do on the informational material that is covered by property rights. The public domain is not some gummy residue left behind when all the good stuff has been covered by property law. The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture. Or at least it has been.

I deliberately gave easy examples. It is obvious how unnecessary but also how harmful it would be to extend property rights to language, to facts, to business methods and scientific algorithms, to the basic structures of music, to art whose creators are long dead. It is obvious that this would not produce more innovation, more debate, more art, more democracy. But what about the places where the value of the public domain is not obvious?

What if we were actually moving to extend patents to business methods, or intellectual property rights to unoriginal compilations of facts? What if we had locked up most of twentieth-century culture without getting a net benefit in return? What if the basic building blocks of new scientific fields were being patented long before anything concrete or useful could be built from them? What if we were littering our electronic communication space with digital barbed wire and regulating the tiniest fragments of music as if they were stock certificates? What if we were doing all this in the blithe belief that more property rights mean more innovation? The story of this book is that we are.

The Jefferson Warning is important. It is, however, just a warning. While it would be excellent to print it on pocket cards and hand it to our elected representatives, that alone will not solve the most pressing problems we face. In the chapters that follow, I shall try to go further. In Chapter 3, I set the process of expansion we are engaged in—our “second enclosure movement”—in perspective by comparing it to the original enclosures of the grassy commons of old England. In Chapter 4, I jump from the world of the fifteenth or nineteenth century to the world of the twenty-first, from elevators and grain hoppers to video recorders, the Internet, and file-sharing services. I use the story of several key legal disputes to illustrate a broader history—the history of intellectual property’s struggle with communications technologies that allow people to copy more cheaply. Strangely enough, the Jefferson Warning will be crucial in understanding the debate over copyright online and, in particular, in understanding the fear that drives our current policy making, a fear I refer to as the Internet Threat. [Back to contents]

Chapter 2: Further Reading

In this chapter I offered a snapshot of the historical debate over copyright, patent and—to a lesser extent—trademark law. The argument is partly a matter of intellectual history: a claim about what various individuals and groups actually believed about intellectual property rights, and the way those beliefs shaped the policies they supported and the legal structures they created. But it is also a normative argument—a claim that this vision of intellectual property is better than the more “physicalist” and “absolutist” alternatives I described or, at the very least, that it is an important corrective to our current excesses. This dual character complicates the task of providing a guide to further reading: books could be written on either portion alone.

My own understanding of the history of “intellectual property”—itself a relatively recently invented and contentious category—has been profoundly influenced by more scholars than I can list here. Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002), gives a magisterial account of the origins of the U.S. Constitution’s intellectual property clause. Tyler T. Ochoa and Mark Rose, “The Anti-Monopoly Origins of the Patent and Copyright Clause,” Journal of the Patent & Trademark Office Society 84 (2002): 909–940, offer a vision of the history that is closest to the one I put forward here. In addition, Tyler T. Ochoa, “Origins and Meanings of the Public Domain,” University of Dayton Law Review 28 (2002): 215–267, provides the same service for the concept of the public domain. Malla Pollack provides a useful historical study of the contemporary understanding of the word “progress” at the time of the American Constitution in Malla Pollack, “The Democratic Public Domain: Reconnecting the Modern First Amendment and the Original Progress Clause (a.k.a. Copyright and Patent Clause),” Jurimetrics 45 (2004): 23–40. A rich and thought-provoking account of the way that ideas of intellectual property worked themselves out in the context of the corporate workplace can be found in Catherine Fisk, Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800–1930 (Chapel Hill: University of North Carolina Press, forthcoming 2009).

Of course, the history of copyright or of intellectual property cannot be confined to the two figures I focus on principally here—Jefferson and Macaulay—nor cannot it be confined to the Anglo-American tradition or to the debates in which Jefferson and Macaulay were participating. Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789–1810 (Berkeley: University of California Press, 1991), is vital reading to understand the parallels between the Anglo-American and droits d’auteur tradition. It is also fascinating reading. For studies of the broader intellectual climate, I recommend Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (New York: Columbia University Press, 1994); Peter Jaszi, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’ ” Duke Law Journal 1991, no. 2: 455–502; Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993); Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, Tenn.: Vanderbilt University Press, 1968). The British debates at the time of Macaulay are beautifully captured in Catherine Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge, U.K.: Cambridge University Press, 1999). (It should be noted that, while sympathetic, she is less moved than I by Macaulay’s arguments.)

Any collection of historical works this rich and complex resists summary description—nevertheless, I think it is fair to say that the vast majority of these works stress the centrality of the skeptical “antimonopolist” attitudes I use Jefferson and Macaulay to represent to the history of intellectual property. This does not mean there is unanimity or anything close to it. In particular, Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1012, which came to light late in the writing of this book, offers a thoughtful historical account that criticizes the tendency to use Jefferson’s views as representative of a dominant strand in American intellectual property. My agreements and disagreements with Mossoff’s arguments are discussed fully later in the notes to this chapter. The central point, however, and the single strongest argument against those who would instead attempt to construct a more absolutist, physicalist or labor-based theory of intellectual property, is the problem of limits. Where does one stop? How can one put a limit on the potentially absolute claim over some intellectual creation? How can one specify the limits on prior creators that actually give me ownership over what I create, for I surely have built on the works of others? How can one circumscribe the negative effects on speech, life, and culture that the absolutist or maximalist tradition threatens to generate? My ultimate argument is that the purpose-driven, skeptical, antimonopolistic tendencies of Jefferson and Macaulay answer those questions far better than any contending theory, that they represent not merely an intellectual history sadly neglected in today’s political debates, but a practical solution to the inevitable question, “where do you draw the line?”

[Back to contents]

Chapter 3:

The Second Enclosure Movement

The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.
The poor and wretched don’t escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.

[Anon.][1]

In fits and starts from the fifteenth to the nineteenth century, the English “commons” was “enclosed.”[2] Enclosure did not necessarily mean physical fencing, though that could happen. More likely, the previously common land was simply converted into private property, generally controlled by a single landholder.

The poem that begins this chapter is the pithiest condemnation of the process. It manages in a few lines to criticize double standards, expose the controversial nature of property rights, and take a slap at the legitimacy of state power. And it does this all with humor, without jargon, and in rhyming couplets. Academics should take note. Like most criticisms of the enclosure movement, the poem depicts a world of rapacious, state-aided “privatization,” a conversion into private property of something that had formerly been common property or perhaps had been outside the property system altogether. One kind of “stealing” is legal, says the poet, because the state changes the law of property to give the “lords and ladies” a right over an area formerly open to all. But let a commoner steal something and he is locked up.

The anonymous author was not alone in feeling indignant. Thomas More (one of only two saints to write really good political theory) made similar points, though he used sheep rather than geese in his argument. Writing in the sixteenth century, he had argued that enclosure was not merely unjust in itself but harmful in its consequences: a cause of economic inequality, crime, and social dislocation. In a wonderfully bizarre passage he argues that sheep are a principal cause of theft. Sheep? Why, yes.

[Y]our sheep that were wont to be so meek and tame, and so small eaters, now, as I hear say, be become so great devourers and so wild, that they eat up, and swallow down the very men themselves. They consume, destroy, and devour whole fields, houses, and cities.

Who were these sheep? Bizarre Dolly-like clones? Transgenic killer rams? No. More meant only that under the economic lure of the wool trade, the “noblemen and gentlemen” were attempting their own enclosure movement.

[They] leave no ground for tillage, they enclose all into pastures; they throw down houses; they pluck down towns, and leave nothing standing, but only the church to be made a sheep-house. . . . Therefore that one covetous and insatiable cormorant and very plague of his native country may compass about and enclose many thousand acres of ground together within one pale or hedge, the husbandmen be thrust out of their own.[3]

The sheep devour all. The dispossessed “husbandmen” now find themselves without land or money and turn instead to theft. In More’s vision, it is all very The Second Enclosure Movement simple. Greed leads to enclosure. Enclosure disrupts the life of the poor farmer. Disruption leads to crime and violence.

Writing 400 years later, Karl Polanyi echoes More precisely. He calls the enclosure movement “a revolution of the rich against the poor” and goes on to paint it in the most unflattering light. “The lords and nobles were upsetting the social order, breaking down ancient law and custom, sometimes by means of violence, often by pressure and intimidation. They were literally robbing the poor of their share in the common. . . .”[4] And turning them to “beggars and thieves.” The critics of enclosure saw other harms too, though they are harder to classify. They bemoaned the relentless power of market logic to migrate to new areas, disrupting traditional social relationships and perhaps even views of the self, or the relationship of human beings to the environment. Fundamentally, they mourned the loss of a form of life.

So much for the bad side of the enclosure movement. For many economic historians, everything I have said up to now is the worst kind of sentimental bunk, romanticizing a form of life that was neither comfortable nor noble, and certainly not very egalitarian. The big point about the enclosure movement is that it worked; this innovation in property systems allowed an unparalleled expansion of productive possibilities.[5] By transferring inefficiently managed common land into the hands of a single owner, enclosure escaped the aptly named “tragedy of the commons.” It gave incentives for large-scale investment, allowed control over exploitation, and in general ensured that resources could be put to their most efficient use. Before the enclosure movement, the feudal lord would not invest in drainage systems, sheep purchases, or crop rotation that might increase yields from the common—he knew all too well that the fruits of his labor could be appropriated by others. The strong private property rights and single-entity control that were introduced in the enclosure movement avoid the tragedies of overuse and underinvestment: more grain will be grown, more sheep raised, consumers will benefit, and fewer people will starve in the long run.[6]

If the price of this social gain is a greater concentration of economic power, the introduction of market forces into areas where they previously had not been so obvious, or the disruption of a modus vivendi with the environment—then, enclosure’s defenders say, so be it! In their view, the agricultural surplus produced by enclosure helped to save a society devastated by the mass deaths of the sixteenth century. Those who weep over the terrible effects of private property should realize that it literally saves lives.

Now it is worth noting that while this view was once unchallenged,[7] recent scholarship has thrown some doubts on the effects of enclosure on agricultural production.[8] Some scholars argue that the commons was actually better run than the defenders of enclosure admit.[9] Thus, while enclosure did produce the changes in the distribution of wealth that so incensed an earlier generation of critical historians, they argue that there are significant questions about whether it led to greater efficiency or innovation. The pie was carved up differently, but did it get bigger? The debate about these issues is little known, however, outside the world of economic historians. “Everyone” knows that a commons is by definition tragic and that the logic of enclosure is as true today as it was in the fifteenth century. I will not get involved in this debate. Assume for the sake of argument that enclosure did indeed produce a surge in agriculture. Assume, in other words, that converting the commons into private property saved lives. This is the logic of enclosure. It is a powerful argument, but it is not always right.

This is all very well, but what does it have to do with intellectual property? I hope the answer is obvious. The argument of this book is that we are in the middle of a second enclosure movement. While it sounds grandiloquent to call it “the enclosure of the intangible commons of the mind,” in a very real sense that is just what it is.[10] True, the new state-created property rights may be “intellectual” rather than “real,” but once again things that were formerly thought of as common property, or as “uncommodifiable,” or outside the market altogether, are being covered with new, or newly extended, property rights.

Take the human genome as an example. Again, the supporters of enclosure have argued that the state was right to step in and extend the reach of property rights; that only thus could we guarantee the kind of investment of time, ingenuity, and capital necessary to produce new drugs and gene therapies.[11] To the question, “Should there be patents over human genes?” the supporters of enclosure would answer that private property saves lives.[12] The opponents of enclosure have claimed that the human genome belongs to everyone, that it is literally the common heritage of humankind, that it should not and perhaps in some sense cannot be owned, and that the consequences of turning over the human genome to private property rights will be dreadful, as market logic invades areas which should be the farthest from the market. In stories about stem cell and gene sequence patents, critics have mused darkly about the way in which the state is handing over monopoly power to a few individuals and corporations, potentially introducing bottlenecks and coordination costs that slow down innovation.[13]

Alongside these accounts of the beneficiaries of the new property scheme run news stories about those who were not so fortunate, the commoners of the genetic enclosure. Law students across America read Moore v. Regents of University of California, a California Supreme Court case deciding that Mr. Moore had no property interest in the cells derived from his spleen.[14] The court tells us that giving private property rights to “sources” would slow the freewheeling practice researchers have of sharing their cell lines with all and sundry.[15] The doctors whose inventive genius created a billion-dollar cell line from Mr. Moore’s “naturally occurring raw material,” by contrast, are granted a patent. Private property rights here, by contrast, are a necessary incentive to research.[16] Economists on both sides of the enclosure debate concentrate on the efficient allocation of rights. Popular discussion, on the other hand, doubtless demonstrating a reprehensible lack of rigor, returns again and again to more naturalistic assumptions such as the essentially “common” quality of the property involved or the idea that one owns one’s own body.[17]

The genome is not the only area to be partially “enclosed” during this second enclosure movement. The expansion of intellectual property rights has been remarkable—from business method patents, to the Digital Millennium Copyright Act, to trademark “anti-dilution” rulings, to the European Database Protection Directive.[18] The old limits to intellectual property rights—the antierosion walls around the public domain—are also under attack. The annual process of updating my syllabus for a basic intellectual property course provides a nice snapshot of what is going on. I can wax nostalgic looking back to a five-year-old text, with its confident list of subject matter that intellectual property rights could not cover, the privileges that circumscribed the rights that did exist, and the length of time before a work falls into the public domain. In each case, the limits have been eaten away.

How Much of the Intangible Commons Should We Enclose?

So far I have argued that there are profound similarities between the first enclosure movement and our contemporary expansion of intellectual property, which I call the second enclosure movement. Once again, the critics and proponents of enclosure are locked in battle, hurling at each other incommensurable claims about innovation, efficiency, traditional values, the boundaries of the market, the saving of lives, the loss of familiar liberties. Once again, opposition to enclosure is portrayed as economically illiterate: the beneficiaries of enclosure telling us that an expansion of property rights is needed in order to fuel progress. Indeed, the post-Cold War “Washington consensus” is invoked to claim that the lesson of history itself is that the only way to get growth and efficiency is through markets; property rights, surely, are the sine qua non of markets.[19]

This faith in enclosure is rooted in a correspondingly deep pessimism about the possibility of managing resources that are either commonly owned or owned by no one. If all have the right to graze their herds on common land, what incentive does anyone have to hold back? My attempt to safeguard the future of the pasture will simply be undercut by others anxious to get theirs while the getting is good. Soon the pasture will be overgrazed and all our flocks will go hungry. In a 1968 article, Garrett Hardin came up with the phrase that would become shorthand for the idea that there were inherent problems with collectively managed resources: “the tragedy of the commons.”[20] The phrase, more so than the actual arguments in his article, has come to exercise considerable power over our policies today. Private property—enclosure—is portrayed as the happy ending for the tragedy of the commons: when policy makers see a resource that is unowned, they tend to reach reflexively for “the solving idea of property.” According to this view, enclosure is not a “revolution of the rich against the poor,” it is a revolution to save the waste of socially vital resources. To say that some social resource is not owned by an individual, that it is free as the air to common use, is automatically to conjure up the idea that it is being wasted.

But if there are similarities between our two enclosures, there are also profound dissimilarities; the networked commons of the mind has many different characteristics from the grassy commons of Old England.[21] I want to concentrate here on two key differences between the intellectual commons and the commons of the first enclosure movement, differences that should lead us to question whether this commons is truly tragic and to ask whether stronger intellectual property rights really are the solution to our problems. These differences are well known, indeed they are the starting point for most intellectual property law, a starting point that Jefferson and Macaulay have already laid out for us. Nevertheless, reflection on them might help to explain both the problems and the stakes in the current wave of expansion.

Unlike the earthy commons, the commons of the mind is generally “nonrival.” Many uses of land are mutually exclusive: if I am using the field for grazing, it may interfere with your plans to use it for growing crops. By contrast, a gene sequence, an MP3 file, or an image may be used by multiple parties; my The Second Enclosure Movement use does not interfere with yours. To simplify a complicated analysis, this means that the threat of overuse of fields and fisheries is generally not a problem with the informational or innovational commons.[22] Thus, one type of tragedy of the commons is avoided.

The concerns in the informational commons have to do with a different kind of collective action problem: the problem of incentives to create the resource in the first place. The difficulty comes from the assumption that information goods are not only nonrival (uses do not interfere with each other), but also nonexcludable (it is impossible, or at least hard, to stop one unit of the good from satisfying an infinite number of users at zero marginal cost). Pirates will copy the song, the mousetrap, the drug formula, the brand. The rest of the argument is well known. Lacking an ability to exclude, creators will be unable to charge for their creations; there will be inadequate incentives to create. Thus, the law must step in and create a limited monopoly called an intellectual property right.

How about the argument that the increasing importance of information-intensive products to the world economy means that protection must increase? Must the information commons be enclosed because it is now a more important sector of economic activity?[23] This was certainly one of the arguments for the first enclosure movement. For example, during the Napoleonic Wars enclosure was defended as a necessary method of increasing the efficiency of agricultural production, now a vital sector of a wartime economy.

Here we come to another big difference between the commons of the mind and the earthy commons. As has frequently been pointed out, information products are often made up of fragments of other information products; your information output is someone else’s information input.[24] These inputs may be snippets of code, discoveries, prior research, images, genres of work, cultural references, or databases of single nucleotide polymorphisms—each is raw material for future innovation. Every increase in protection raises the cost of, or reduces access to, the raw material from which you might have built those future products. The balance is a delicate one; one Nobel Prize-winning economist has claimed that it is actually impossible to strike that balance so as to produce an informationally efficient market.[25]

Whether or not it is impossible in theory, it is surely a difficult problem in practice. In other words, even if enclosure of the arable commons always produced gains (itself a subject of debate), enclosure of the information commons clearly has the potential to harm innovation as well as to support it.[26] More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation—sometimes just the opposite is true. It may be that intellectual property rights slow down innovation, by putting multiple roadblocks in the way of subsequent innovation.[27] Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects—the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation—as “the tragedy of the anticommons.”[28]

In short, even if the enclosure movement was a complete success, there are important reasons to believe that the intangible world is less clearly a candidate for enclosure, that we should pause, study the balance between the world of the owned and the world of the free, gather evidence. After all, even in physical space, “common” property such as roads increases the value of the surrounding private tracts. If there are limits to the virtues of enclosure even there, how much more so in a world of intangible and nonrival goods, which develop by drawing on prior creations? Yet the second enclosure movement proceeds confidently nevertheless—with little argument and less evidence.

To be sure, there is a danger of overstatement. The very fact that the changes have been so one-sided makes it hard to resist exaggerating their impact. In 1918, Justice Brandeis confidently claimed that “[t]he general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”[29] That baseline—intellectual property rights are the exception rather than the norm; ideas and facts must always remain in the public domain—is still supposed to be our starting point.[30] It is, however, under attack.

Both overtly and covertly, the commons of facts and ideas is being enclosed. Patents are increasingly stretched to cover “ideas” that twenty years ago all scholars would have agreed were unpatentable.[31] Most troubling of all are the attempts to introduce intellectual property rights over mere compilations of facts.[32] If U.S. intellectual property law had an article of faith, it was that unoriginal compilations of facts would remain in the public domain, that this availability of the raw material of science and speech was as important to the next generation of innovation as the intellectual property rights themselves.[33] The system would hand out monopolies in inventions and in original expression, while the facts below (and ideas above) would remain free for all to build upon. But this premise is being undermined. Some of the challenges are subtle: in patent law, stretched interpretations of novelty and nonobviousness allow intellectual property rights to move closer and closer to the underlying data layer; gene sequence patents come very close to being rights over a particular discovered arrangement of data—C’s, G’s, A’s, and T’s.[34] Other challenges are overt: the European Database Protection Directive did (and various proposed bills in the United States would) create proprietary rights over compilations of facts, often without even the carefully framed exceptions of the copyright scheme, such as the usefully protean category of fair use.

The older strategy of intellectual property law was a “braided” one: thread a thin layer of intellectual property rights around a commons of material from which future creators would draw.[35] Even that thin layer of intellectual property rights was limited so as to allow access to the material when that was necessary to further the goals of the system. Fair use allows for parody, commentary, and criticism, and also for “decompilation” of computer programs so that Microsoft’s competitors can reverse engineer Word’s features in order to make sure their program can convert Word files. It may sound paradoxical, but in a very real sense protection of the commons was one of the fundamental goals of intellectual property law.

In the new vision of intellectual property, however, property should be extended everywhere; more is better. Expanding patentable and copyrightable subject matter, lengthening the copyright term, giving legal protection to “digital barbed wire,” even if it is used to prevent fair use: each of these can be understood as a vote of no confidence in the productive powers of the commons. We seem to be shifting from Brandeis’s assumption that the “noblest of human productions are free as the air to common use” to the assumption that any commons is inefficient, if not tragic.

The expansion is more than a formal one. It used to be relatively hard to violate an intellectual property right. The technologies of reproduction or the activities necessary to infringe were largely, though not entirely, industrial. Imagine someone walking up to you in 1950, handing you a book or a record or a movie reel, and saying “Quick! Do something the law of intellectual property might forbid.” (This, I admit, is a scenario only likely to come to the mind of a person in my line of work.) You would have been hard-pressed to do so. Perhaps you could find a balky mimeograph machine, or press a reel-to-reel tape recorder into use. You might manage a single unauthorized showing of the movie—though to how many people? But triggering the law of intellectual property would be genuinely difficult. Like an antitank mine, it would not be triggered by the footsteps of individuals. It was reserved for bigger game.

This was no accident. The law of intellectual property placed its triggers at the point where commercial activity by competitors could undercut the exploitation of markets by the rights holder. Copying, performance, distribution—these were things done by other industrial entities who were in competition with the owner of the rights: other publishers, movie theaters, distributors, manufacturers. In practice, if not theory, the law was predominantly a form of horizontal industry regulation of unfair competition—made by the people in the affected industries for the people in the affected industries. The latter point is worth stressing. Congress would, and still does, literally hand over the lawmaking process to the industries involved, telling them to draft their intra-industry contract in the form of a law, and then to return to Congress to have it enacted. The public was not at the table, needless to say, and the assumption was that to the extent there was a public interest involved in intellectual property law, it was in making sure that the industries involved got their act together, so that the flow of new books and drugs and movies would continue. Members of the public, in other words, were generally thought of as passive consumers of finished products produced under a form of intra-industry regulation that rarely implicated any act that an ordinary person would want, or be able, to engage in.

In the world of the 1950s, these assumptions make some sense—though we might still disagree with the definition of the public interest. It was assumed by many that copyright need not and probably should not regulate private, noncommercial acts. The person who lends a book to a friend or takes a chapter into class is very different from the company with a printing press that chooses to reproduce ten thousand copies and sell them. The photocopier and the VCR make that distinction fuzzier, and the networked computer threatens to erase it altogether.

So how are things different today? If you are a person who routinely uses computers, the Internet, or digital media, imagine a day when you do not create—intentionally and unintentionally—hundreds of temporary, evanescent copies. (If you doubt this, look in the cache of your browser.) Is there a day when you do not “distribute” or retransmit fragments of articles you have read, when you do not seek to share with friends some image or tune? Is there a day when you do not rework for your job, for your class work, or simply for pastiche or fun, some of the digital material around you? In a networked society, copying is not only easy, it is a necessary part of transmission, storage, caching, and, some would claim, even reading.[36]

As bioinformatics blurs the line between computer modeling and biological research, digital production techniques blur the lines between listening, editing, and remaking. “Rip, mix, and burn,” says the Apple advertisement. It marks a world in which the old regime of intellectual property, operating upstream as a form of industrial competition policy, has been replaced. Intellectual property is now in and on the desktop and is implicated in routine creative, communicative, and just plain consumptive acts that each of us performs every day. Suddenly, the triggers of copyright—reproduction, distribution—can be activated by individual footsteps.

Of course, we would hope that in your daily actions you scrupulously observed the rights—all the rights—of the companies that have interests in the texts, tunes, images of celebrities, trademarks, business method patents, and fragments of computer code you dealt with. Did you? Can you be sure? I teach intellectual property, but I admit to some uncertainty. I would not have imagined that a temporary image of a Web page captured in the cache of my browser counted as a “copy” for the purposes of copyright law.[37] I would have thought that it was fair use for a company to photocopy articles in journals it subscribed to, and paid for, in order to circulate them to its researchers.[38] If a conservative Web site reposted news articles from liberal newspapers with critical commentary, that, too, would have seemed like fair use.[39] I would have thought that it was beneficial competition, and not a trespass, for an electronic “aggregator” to gather together auction prices or airline fares, so as to give consumers more choice.[40] I would not have thought that a search engine that catalogued and displayed in framed format the digital graphics found on the Internet would be sued for infringing the copyrights of the owners of those images.[41] I would not have thought that I might be sued for violating intellectual property law if I tried to compete with a printer company by making toner cartridges that were compatible with its printers.[42]

The examples go on. I know that the “research exemption” in U.S. patent law is very tightly limited, but I would have laughed if you had told me that even a research university was forbidden from doing research unless that research had no conceivable practical or academic worth—in other words that even in academia, in a project with no commercial goal, the research exemption only covered research that was completely pointless.[43] Why have an exemption at all, in that case? I would have told an academic cryptography researcher that he need not fear legal threats from copyright owners simply for researching and publishing work on the vulnerabilities of copy protection schemes.[44] I would not have thought that one could patent the idea of having an electronic Dutch auction on the Internet, working out the daily prices of a bundle of mutual funds through simple arithmetic, or buying something online with one click.[45] I would have assumed that celebrities’ rights to control their images should end with their deaths, and that courts would agree that those rights were tightly limited by the First Amendment. Yet, in each of these cases, I would have been wrong, or at least I might be wrong—enough that a sane person would worry. Not all of the expansive claims eventually triumphed, of course, but some did. Guessing which would and which would not was hard even for me, though, as I said, I teach intellectual property law. You, probably, do not.

In 1950 none of this would have mattered. Unless you were in some related business—as a publisher, broadcaster, film distributor, or what have you—it would have been hard for you to trigger the rules of intellectual property law. If you were in such a business, you were probably very familiar with the rules that governed your activities and well represented by corporate counsel who knew them even better. What’s more, the rules were neither as complex nor as counterintuitive as they are now. They also did not reach as far. The reach of the rights has been expanded, and their content made more difficult to understand, at the exact moment that their practical effect has been transformed. It is not merely that the triggers of intellectual property law can easily be set off by individual footsteps. There are now many more triggers and their trip wires are harder to see.

From the point of view of the content industries, of course, all this is foolishness. It is not some undesirable accident that intellectual property has come to regulate personal, noncommercial activity. It is absolutely necessary. Think of Napster. When individuals engaging in noncommercial activity have the ability to threaten the music or film industry’s business plan by engaging in the very acts that copyright law always regulated—namely reproduction and distribution—of course it is appropriate for them, and the networks they “share” on, to be subject to liability. What’s more, to the extent that copying becomes cheaper and easier, it is necessary for us to strengthen intellectual property rights. We must meet the greater danger of copying with more expansive rights, harsher penalties, and expanded protections, some of which may indeed have the practical effect of reducing rights that citizens thought they had, such as fair use, low-level noncommercial sharing among personal friends, resale, and so on. Without an increase in private property rights, in other words, cheaper copying will eat the heart out of our creative and cultural industries. I call this claim the Internet Threat.

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Chapter 3: Further Reading

The endnotes to this chapter supply copious particular references; this page provides the overview. Those seeking to understand the various methods by which different aspects of common land were enclosed over a 400 year history in England should start with J. A. Yelling, Common Field and Enclosure in England, 1450–1850 (Hamden, Conn.: Archon Books, 1977). Thomas More, Utopia (New York: W. J. Black, 1947), provides a harsh criticism of the enclosure movement, one that is echoed hundreds of years later by Polanyi: Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1957). Economic historians have generally believed that the enclosure movement yielded considerable efficiency gains—bringing under centralized control and management, property that had previously been inefficiently managed under a regime of common access. When efficiency gains mean higher productivity so that fewer people starve, this is no small thing. Donald N. McCloskey, “The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century,” Journal of Economic History 32 (1972): 15–35; “The Prudent Peasant: New Findings on Open Fields,” Journal of Economic History 51 (1991): 343–355. This argument seems plausible, but it has recently received powerful challenges, for example, that by Robert C. Allen, Enclosure and the Yeoman (New York: Oxford University Press, 1992).

In the twentieth century, the negative effects of open access or common ownership received an environmental gloss thanks to the work of Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248. However, work by scholars such as Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990), and Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property,” University of Chicago Law Review 53 (1986): 711–781, have introduced considerable nuance to this idea. Some resources may be more efficiently used if they are held in common. In addition, nonlegal, customary, and norm-based forms of “regulation” often act to mitigate the theoretical dangers of overuse or under-investment.

Beyond the theoretical and historical arguments about the effects of enclosure on real property lie the question of how well those arguments translate to the world of the intangible and intellectual. It is that question which this chapter raises. Christopher May, A Global Political Economy of Intellectual Property Rights: The New Enclosures? (London: Routledge, 2000) offers a similar analogy—as do several other articles cited in the text. The key differences obviously lie in the features of intellectual property identified in the earlier chapters—its nonrivalrousness and nonexcludability—and on the ways in which a commons of cultural, scientific, and technical information has been central to the operation of both liberal democracy and capitalist economy. I owe the latter point particularly to Richard Nelson, whose work on the economics of innovation amply repays further study: Richard Nelson, Technology, Institutions, and Economic Growth (Cambridge, Mass.: Harvard University Press, 2005).

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Chapter 4:

The Internet Threat

The conventional wisdom is that governments respond slowly to technological change. In the case of the Internet, nothing could be further from the truth. In 1994 and 1995, “dot-com” was still a mystical term for many. Most stories about the Internet dealt with sexual predation rather than possibilities of extreme wealth. Internet commerce itself was barely an idea, and some of the most exciting sites on the Web had pictures of coffeepots in university departments far away. (“See,” one would proudly say to a technological neophyte friend when introducing him to the wonders of the Net, “the pot is empty and we can see that live from here! This changes everything!”) It was an innocent time. Yet the U.S. government was already turning the wheels of intellectual property policy to respond to the threat (and promise) of the Internet. More precisely, they were trying to shape the future of the cumbersomely named “National Information Infrastructure,” the official name for the “information superhighway” that it was presumed would replace the “immature” technology of the Net. The government was wrong about that, and about a lot else.

The blueprint for new intellectual property policy online came from the Patent and Trademark Office. That office promulgated first a Green Paper and then, after further hearings, a White Paper, on “Intellectual Property and the National Information Infrastructure.”[1] As policy and legal documents these are in one sense long out of date. Some of their legal arguments were successfully challenged. Some of their most important proposals were rejected, while many others have become law. But as a starting point from which to trace the frame of mind that has come to dominate intellectual property policy online, they are hard to equal.

These documents contained proposals that nowadays would be seen as fairly controversial. Internet service providers were said to be “strictly liable” for copyright violations committed by their subscribers; that is to say, they were legally responsible whether or not they knew about the violation or were at fault in any way. Loading a document into your browser’s transient cache memory while reading it was said to be making a “copy.” There was more: the beginnings of what later became the Digital Millennium Copyright Act,[2] making it illegal to cut through the digital fences which content providers put around their products. The attitude toward fair use was particularly revealing. At one point in the White Paper it was hinted that fair use might be a relic of the inconveniences of the analog age, to be discarded now that we could have automated fractional payments for even the most insignificant use.[3] (It was noted, however, that some disagreed with this conclusion.) At another point, fair use was described as a “tax” on rights holders and a “subsidy” to those who benefited from it, such as educational institutions.[4] The White Paper also suggested that while any potential loss to rights holders caused by the new technology needed to be countered with new rights and new protections, any potential gain to them through the new technology was simply theirs. Potential gain did not offset the need to compensate for potential loss

So what views of intellectual property were we carrying forward into the Internet age? Intellectual property is just like other property. Rights are presumptively absolute. Any limitations on them, such as fair use, are taxes on property owners, subsidies to the society at large. It sounds like a perfect time to administer the Jefferson Warning I sketched out in Chapter 2. After all, Jefferson was specifically warning against each of these errors two hundred years ago. To find them in a student paper would be disappointing—irritating, even. But this document was the blueprint for the intellectual property regime of cyberspace.

But do these mistakes matter? How important is it that we get the rules of intellectual property right? To me, a number of my colleagues, some librarians, and a few software gurus, the White Paper was more than just a bit of bad policy in a technical field—like a poorly drafted statute about the witnessing of wills, say. When you set up the property rules in some new space, you determine much about the history that follows. Property rules have a huge effect on power relationships and bargaining positions. Think of rules setting out water rights or the right to drive cattle over homesteaders’ land in the American West. But they also are part of a larger way of seeing the world; think of the early-twentieth-century rules treating unions as “conspiracies in restraint of trade” or the Supreme Court decisions that dispossessed the American Indians on the theory that they did not comprehend the concept of property and thus did not “own” the land being taken from them.[5] We were at a comparable point in the history of cyberspace. What was being set up here was a vision of economy and culture, a frame of mind about how the world of cultural exchange operates, and eventually a blueprint for our systems of communication. At this stage, the range of possibilities is extremely wide. A lot of different choices could be made, but subsequent changes would be harder and harder as people and companies built their activities around the rules that had been laid down. This was, in short, a tipping point where it was particularly important that we make the right decisions.

Conventional political science told us there were a lot of reasons to fear that we would not make the right decisions. The political process was going to be particularly vulnerable to problems of capture by established industries, many of whom would (rightly) see the Internet as a potential threat to their role as intermediaries between artists and creators on the one hand and the public on the other.

Intellectual property legislation had always been a cozy world in which the content, publishing, and distribution industries were literally asked to draft the rules by which they would live. The law was treated as a kind of contract between the affected industries. Rationally enough, those industries would wish to use the law not merely to protect their legitimate existing property rights, but to make challenges to their basic business plans illegal. (Imagine what would have happened if we had given the lamp-oil sellers the right to define the rules under which the newfangled electric light companies would operate.) There would be no easy counterweight to these pressures, as Jessica Litman points out in a wonderful set of reflections on copyright lawmaking, because the potential competitors to existing titans were just being born and could thus be strangled safely in their cradles.[6] Certainly the public would have little grasp as yet of what was at stake.

In any event, when had the public played a role in intellectual property legislation? That kind of law affected businesses with printing presses or TV towers, not normal citizens. It did not help that the legislators were largely both ignorant and distrustful of the technology of the Internet—which was, at the time, thought to be dominated by foreign hackers, suicidal cults, pirates, and sleazy pornographers. (Terrorists and Nigerian spammers would be added to the mix later.)

Given an area of law that legislators were happy to hand over to the affected industries and a technology that was both unfamiliar and threatening, the prospects for legislative insight were poor. Lawmakers were assured by lobbyists

that this was business as usual, that no dramatic changes were being made by the Green or White papers; or
that the technology presented a terrible menace to the American cultural industries, but that prompt and statesmanlike action would save the day; or
that layers of new property rights, new private enforcers of those rights, and technological control and surveillance measures were all needed in order to benefit consumers, who would now be able to “purchase culture by the sip rather than by the glass” in a pervasively monitored digital environment.

In practice, somewhat confusingly, these three arguments would often be combined. Legislators’ statements seemed to suggest that this was a routine Armageddon in which firm, decisive statesmanship was needed to preserve the digital status quo in a profoundly transformative and proconsumer way. Reading the congressional debates was likely to give one conceptual whiplash.

To make things worse, the press was—in 1995, at least—clueless about these issues. It was not that the newspapers were ignoring the Internet. They were paying attention—obsessive attention in some cases. But as far as the mainstream press was concerned, the story line on the Internet was sex: pornography, online predation, more pornography. The lowbrow press stopped there. To be fair, the highbrow press was also interested in Internet legal issues (the regulation of pornography, the regulation of online predation) and constitutional questions (the First Amendment protection of Internet pornography). Reporters were also asking questions about the social effect of the network (including, among other things, the threats posed by pornography and online predators).

There were certainly important issues within the areas the press was willing to focus on, and I do not mean to trivialize them. I worked with a couple of civil liberties groups in opposing the hapless Communications Decency Act, one of the most poorly drafted pieces of speech regulation ever to come out of Congress.[7] It was a palpably unconstitutional statute, eventually struck down by a unanimous Supreme Court.[8] Its proposals would have burdened the speech of adults while failing to protect the interests of minors. Reporters loved the topic of the Communications Decency Act. It was about sex, technology, and the First Amendment. It foreshadowed the future of online speech regulation. One could write about it while feeling simultaneously prurient, principled, and prescient: the journalistic trifecta. For law professors who worked on digital issues, the Communications Decency Act was an easy topic to get the public to focus on; we had the reporters and editors calling us, pleading for a quote or an opinion piece.

Intellectual property was something quite different. It was occasionally covered in the business pages with the same enthusiasm devoted to changes in derivatives rules. Presented with the proposals in the Green and White Papers, the reporters went looking for opinions from the Software Publishers Association, the Recording Industry Association of America, or the Motion Picture Association of America. This was not bias or laziness—to whom else would they go? Who was on the “other side” of these issues? Remember, all of this occurred before Napster was a gleam in Sean Fanning’s eye. Sean Fanning was in middle school. Amazon.com was a new company and “Google” was not yet a verb.

In this environment, convincing the legislature or the press that fundamental public choices were implicated in the design of intellectual property rights for the digital world was about as easy as convincing them that fundamental public choices were implicated in the rules of tiddlywinks. My own experience is probably representative. I remember trying to pitch an article on the subject to a charming but uncomprehending opinion page editor at the Washington Post. I tried to explain that decisions about property rules would shape the way we thought about the technology. Would the relatively anonymous and decentralized characteristics of the Internet that made it such a powerful tool for global speech and debate come to be seen as a bug rather than a feature, something to be “fixed” to make the Net safe for protected content? The rules would also shape the economic interests that drove future policy. Would we try to build the system around the model of proprietary content dispensed in tightly controlled chunks? Would fair use be made technologically obsolescent? Would we undercut the various nontraditional methods of innovation, such as free software, before they ever managed to establish themselves? What would become of libraries in the digital world, of the ideal that access to books had important differences from access to Twinkies? After I concluded this lengthy and slightly incoherent cri de coeur, there was a long pause; then the editor said politely, “Are you sure you couldn’t make some of these points about a free speech issue, like the Communications Decency Act, maybe?”

I finally placed the piece in the Washington Times,[9] which was best known at the time as the only metropolitan newspaper owned by the Unification Church, familiarly referred to as the Moonies. This hardly counted as a direct line to the popular imagination (though the article’s mild criticisms elicited an extraordinary reaction from the Clinton administration’s lead official on intellectual property policy—throwing me for several weeks into a surreal world of secondhand threats, third-party leaks, and a hilarious back-and-forth in the letters page).[10]

Things were not completely one-sided. An unlikely group of critics had formed: librarians, a few software developers, law professors, some Internet libertarians. Of particular note was the Digital Future Coalition, which grew to represent a broad range of interested groups and industries thanks in part to the prescient analysis and remarkable energy of one of my colleagues, Peter Jaszi.[11] Together with Pamela Samuelson, Jessica Litman, and a number of other distinguished legal scholars, Peter turned his considerable intellectual talents to explaining why writers, telecom companies, scientists, manufacturers of consumer electronics, and a host of other groups should be interested in the rules being debated. There had been a series of official hearings in which complaints were carefully collected and just as carefully ignored. This became harder to do as the critics became more numerous and better organized. Nevertheless, the currents were clearly running against them. It would be nice to say that this was merely because of the clubby history of intellectual property legislation, or the difficulty in getting press attention, or the various issues of industry capture and collective action problems. Yet this would be to miss a vital element of the situation.

Conventional political science showed that there were structural reasons why the legislative process was likely to succumb to industry capture.[12] The reality turned out to be much worse. The real problem was not a political process dominated by cynical power politics, nor an initial absence of critical newspaper coverage, though both of those factors contributed. The real problem was that most of the proponents of the White Paper’s policies believed their own arguments so deeply and sincerely that they saw any criticism of those positions as either godless communism or hippy digital anarchism. (Frequently, in fact, they clung to their arguments even when there was fairly strong evidence that they would actually be harming themselves by putting these policies into effect. I will expand on this point later.) More importantly, they succeeded in getting their story about the threats and promises of the digital future accepted as the basis for all discussion of intellectual property policy. It became the organizing set of principles, the master narrative—call it what you will.

The heart of the story is beguilingly simple. The Internet makes copying cheaper and does so on an unparalleled global scale. Therefore we must meet the greater danger of illicit copying with more expansive rights, harsher penalties, and expanded protections. True, as I pointed out before, some of these expansions may indeed have the practical effect of reducing rights that citizens thought they had, such as fair use, low-level noncommercial sharing among personal friends, resale, and so on. But without an increase in private property rights, cheaper copying will eat the heart out of our creative and cultural industries. I call this story the Internet Threat. It is a powerful argument and it deserves some explanation.

Think back for a moment to the first chapter and the difference between Madame Bovary and the petunia. If the reason for intellectual property rights is the “nonrival” and “nonexcludable” nature of the goods they protect, then surely the lowering of copying and transmission costs implies a corresponding need to increase the strength of intellectual property rights. Imagine a line. At one end sits a monk painstakingly transcribing Aristotle’s Poetics. In the middle lies the Gutenberg printing press. Three-quarters of the way along the line is a photocopying machine. At the far end lies the Internet and the online version of the human genome. At each stage, copying costs are lowered and goods become both less rival and less excludable. My MP3 files are available to anyone in the world running Napster. Songs can be found and copied with ease. The symbolic end of rivalry comes when I am playing the song in Chapel Hill, North Carolina, at the very moment that you are both downloading and listening to it in Kazakhstan—now that is nonrival.

The Logic of Perfect Control

My point is that there is a teleology—a theory about how intellectual property law must develop historically—hidden inside the argument I call the Internet Threat. The argument, which is touted endlessly by the content industries—and not without reason—can be reduced to this: The strength of intellectual property rights must vary inversely with the cost of copying. With high copying costs, one needs weak intellectual property rights if any at all. To deal with the monk-copyist, we need no copyright because physical control of the manuscript is enough. What does it matter if I say I will copy your manuscript, if I must do it by hand? How will this present a threat to you? There is no need to create a legal right to exclude others from copying, no need for a “copy right.” As copying costs fall, however, the need to exclude increases. To deal with the Gutenberg press, we need the Statute of Anne—the first copyright statute—and the long evolution of copyright it ushered in.

But then comes the Internet. To deal with the Internet, we need the Digital Millennium Copyright Act,[13] the No Electronic Theft Act,[14] the Sonny Bono Copyright Term Extension Act,[15] and perhaps even the Collections of Information Antipiracy Act.[16] As copying costs approach zero, intellectual property rights must approach perfect control. We must strengthen the rights, lengthen the term of the rights, increase the penalties, and make noncommercial illicit copying a crime. We must move outside the traditional realm of copyright altogether to regulate the technology around the copyrighted material. Companies are surrounding their digital materials with digital fences. We must make it a violation of the law to cut those digital fences, even if you do so to make a “fair use” of the material on the other side. We must prohibit the making of things that can be used as fence-cutters—a prospect that worries researchers on encryption. In the long run, we must get rid of the troublesome anonymity of the Internet, requiring each computer to have an individual ID. We must make click-wrap contracts enforceable, even on third parties, even when you cannot read them before clicking—so that you never actually buy the software, music, movies, and e-books you download, merely “license” them for a narrowly defined range of uses. We must create interlocking software and hardware systems that monitor and control the material played on those systems—so that songs can be licensed to particular computers at particular times. Uses that the owners wish to forbid will actually be impossible, whether they are legal or not.

In other words, we must make this technology of the Internet, which was hailed as the great “technology of freedom,” into a technology of control and surveillance. The possibility of individuals circulating costless perfect digital copies requires it. It would be facile (if tempting) to say we must remake the Internet to make it safe for Britney Spears. The “Internet Threat” argument is that we must remake the Net if we want digital creativity—whether in music or software or movies or e-texts. And since the strength of the property rights varies inversely with the cost of copying, costless copying means that the remade Net must approach perfect control, both in its legal regime and its technical architecture.

Like any attractive but misleading argument, the Internet Threat has a lot of truth. Ask the software company producing expensive, specialized computer-assisted design programs costing thousands of dollars what happens when the program is made available on a “warez” site or a peer-to-peer file-sharing network. The upstart computer game company pinning its hopes and its capital on a single new game would tell you the same thing. The easy availability of perfect, costless copies is a danger to all kinds of valuable cultural and economic production. The story of the Internet Threat is not wrong, it is simply dramatically incomplete in lots of ways. Here are two of them.

Costless Copying Brings Both Costs and Benefits

The Internet does lower the cost of copying and thus the cost of illicit copying. Of course, it also lowers the costs of production, distribution, and advertising, and dramatically increases the size of the potential market. Is the net result a loss to rights holders such that we need to increase protection and control in order to maintain a constant level of incentives? A large, leaky market may actually provide more revenue than a small one over which one’s control is much stronger. What’s more, the same technologies that allow for cheap copying also allow for swift and encyclopedic search engines—the best devices ever invented for detecting illicit copying. What the Net takes away with one hand, it often gives back with the other. Cheaper copying does not merely mean loss, it also means opportunity. Before strengthening intellectual property rights, we would need to know whether the loss was greater than the gain and whether revised business models and new distribution mechanisms could avoid the losses while capturing more of the gains.

But wait, surely theft is theft? If the new technologies enable more theft of intellectual property, must we not strengthen the laws in order to deal with the problem? If some new technology led to a rash of car thefts, we might increase police resources and prison sentences, perhaps pass new legislation creating new crimes related to car theft. We would do all of this even if the technology in question gave car owners significant benefits elsewhere. Theft is theft, is it not?

The answer in a word is no. Saying “theft is theft” is exactly the error that the Jefferson Warning is supposed to guard against. We should not assume that intellectual property and material property are the same in all regards. The goal of creating the limited monopoly called an intellectual property right is to provide the minimum necessary incentive to encourage the desired level of innovation. Anything extra is deadweight loss. When someone takes your car, they have the car and you do not. When, because of some new technology, someone is able to get access to the MP3 file of your new song, they have the file and so do you. You did not lose the song. What you may have lost is the opportunity to sell the song to that person or to the people with whom they “share” the file. We should not be indifferent to this kind of loss; it is a serious concern. But the fact that a new technology brings economic benefits as well as economic harm to the creation, distribution, and sale of intellectual property products means that we should pause before increasing the level of rights, changing the architecture of our communications networks, creating new crimes, and so on.

Remember, many of the things that the content industries were concerned about on the Internet were already illegal, already subject to suit and prosecution. The question is not whether the Internet should be an intellectual property-free zone; it should not be, is not, and never was. The question is whether, when the content industries come asking for additional or new rights, for new penalties, for the criminalization of certain types of technology, we should take into account the gains that the Internet has brought them, as well as the costs, before we accede to their requests. The answer, of course, is that we should. Sadly, we did not. This does not mean that all of the content industries’ attempts to strengthen the law are wrong and unnecessary. It means that we do not know whether they are or not.

There is a fairly solid tradition in intellectual property policy of what I call “20/20 downside” vision. All of the threats posed by any new technology—the player piano, the jukebox, the photocopier, the VCR, the Internet—are seen with extraordinary clarity. The opportunities, however, particularly those which involve changing a business model or restructuring a market, are dismissed as phantoms. The downside dominates the field, the upside is invisible. The story of video recorders is the best-known example. When video recorders—another technology promising cheaper copying—first appeared, the reaction of movie studios was one of horror. Their business plans relied upon showing movies in theaters and then licensing them to television stations. VCRs and Betamaxes fit nowhere in this plan; they were seen merely as copyright violation devices. Hollywood tried to have them taxed to pay for the losses that would be caused. Their assumption? Cheaper copying demands stronger rights.

Having lost that battle, the movie studios tried to have the manufacturers of the recording devices found liable for contributory copyright infringement; liable, in other words, for assisting the copyright violations that could be carried out by the owners of Sony Betamaxes. This, of course, was exactly the same legal claim that would be made in the Napster case. In the Sony case, however, the movie companies lost. The Supreme Court said that recording of TV programs to “time-shift” them to a more convenient hour was a fair use.[17] The movie studios’ claims were rejected.

Freed from the threat of liability, the price of video recorders continued to fall. They flooded consumers’ houses at a speed unparalleled until the arrival of the World Wide Web. All these boxes sitting by TVs now cried out for content, content that was provided by an emerging video rental market. Until the triumph of DVDs, the videocassette rental market made up more than 50 percent of the movie industry’s revenues.[18] Were losses caused by video recorders? To be sure. Some people who might have gone to see a movie in a theater because the TV schedule was inconvenient could instead record the show and watch it later. Videos could even be shared with friends and families—tattered copies of Disney movies recorded from some cable show could be passed on to siblings whose kids have reached the appropriate age. VCRs were also used for copying that was clearly illicit—large-scale duplication and sale of movies by someone other than the rights holder. A cheaper copying technology definitely caused losses. But it also provided substantial gains, gains that far outweighed the losses. Ironically, had the movie companies “won” in the Sony case, they might now be worse off.

The Sony story provides us with some useful lessons—first, this 20/20 downside vision is a poor guide to copyright policy. Under its sway, some companies will invariably equate greater control with profit and cheaper copying with loss. They will conclude, sometimes rightly, that their very existence is threatened, and, sometimes wrongly, that the threat is to innovation and culture itself rather than to their particular way of delivering it. They will turn to the legislature and the courts for guarantees that they can go on doing business in the old familiar ways. Normally, the marketplace is supposed to provide correctives to this kind of myopia. Upstart companies, not bound by the habits of the last generation, are supposed to move nimbly to harvest the benefits from the new technology and to outcompete the lumbering dinosaurs. In certain situations, though, competition will not work:

if the dinosaurs are a cartel strong enough to squelch competition;
if they have enlisted the state to make the threatening technology illegal, describing it as a predatory encroachment on the “rights” of the old guard rather than aggressive competition;
if ingrained prejudices are simply so strong that the potential business benefits take years to become apparent; or
if the market has “locked in” on a dominant standard—a technology or an operating system, say—to which new market entrants do not have legal access.

In those situations, markets cannot be counted on to self-correct. Unfortunately, and this is a key point, intellectual property policy frequently deals with controversies in which all of these conditions hold true.

Let me repeat this point, because it is one of the most important ones in this book. To a political scientist or market analyst, the conditions I have just described sound like a rarely seen perfect storm of legislative and market dysfunction. To an intellectual property scholar, they sound like business as usual.

In the case of the VCR wars, none of these factors obtained. The state refused to step in to aid the movie companies by criminalizing the new technology. There were equally powerful companies on the other side of the issue (the consumer electronics companies selling VCRs) who saw this new market as a natural extension of a familiar existing market—audio recorders. There was no dominant proprietary technological standard controlled by the threatened industry that could be used to shut down any threats to their business model. The market was allowed to develop and evolve without premature legal intervention or proprietary technological lockout. Thus we know in this case that the movie companies were wrong, that their claims of impending doom from cheap copies were completely mistaken. The public and, ironically, the industry itself benefited as a result. But the Sony case is the exception rather than the rule. That is why it is so important. If competition and change can be forbidden, we will get relatively few cases that disprove the logic that cheaper copying must always mean stronger rights. The “natural experiments” will never be allowed to happen. They will be squelched by those who see only threat in the technologies that allow cheaper copies and who can persuade legislators or judges to see the world their way. The story line I describe here, the Internet Threat, will become the conventional wisdom. In the process, it will make it much less likely that we will have the evidence needed to refute it.

The Holes Matter as Much as the Cheese

The Sony case is important in another way. The Supreme Court’s decision turned on the judgment that it was a “fair use” under U.S. copyright law for consumers to record television programs for time-shifting purposes. Since fair use comes up numerous times in this book, it is worth pausing for a moment to explain what it is.

The content industries like to portray fair use as a narrow and grudging defense against an otherwise valid case for copyright infringement—as if the claim were, “Yes, I trespassed on your land, which was wrong, I admit. But I was starving and looking for food. Please give me a break.” This is simply inaccurate. True, fair use is asserted as “an affirmative defense”; that is the way it is brought up in a copyright case. But in U.S. law, fair uses are stated quite clearly to be limitations on the exclusive rights of the copyright holder—uses that were never within the copyright holder’s power to prohibit. The defense is not “I trespassed on your land, but I was starving.” It is “I did not trespass on your land. I walked on the public road that runs through it, a road you never owned in the first place.” When society hands out the right to the copyright holder, it carves out certain areas of use and refuses to hand over control of them. Again, remember the Jefferson Warning. This is not a presumptively absolute property right. It is a conditional grant of a limited and temporary monopoly. One cannot start from the presumption that the rights holder has absolute rights over all possible uses and therefore that any time a citizen makes use of the work in any way, the rights holder is entitled to get paid or to claim “piracy” if he does not get paid. Under the sway of the story line I called the Internet Threat, legislators have lost sight of this point. So what is “fair use”? When I am asked this question by nonlawyers, I offer to show them the actual provision in the copyright act. They recoil, clearly imagining they are about to be shown something the size and complexity of the tax code. Here is the statutory fair use provision in its entirety:

Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

“But this seems quite sensible,” people often say, as though they had expected both Byzantine complexity and manifest irrationality. (Perhaps they have had some experience with legal matters after all.) The ones who think about it a little longer realize that these factors cannot be mechanically applied. Look at factor 3, for example. Someone who is making a parody frequently needs to take large chunks of the parodied work. That is the nature of a parody, after all. They might then sell the parody, thus also getting into trouble with factor 1. And what about factor 4? Someone might quote big chunks of my book in a devastating review that ruined any chance the book had of selling well. Come to think of it, even a parody might have a negative effect on the “potential market” for the parodied work. But surely those uses would still be “fair”? (In both instances, the Supreme Court agrees that they are fair uses.)

In coming up with these hypothetical problem cases, the copyright novice is probably closer to having a good understanding of the purpose of fair use than many people who have studied it for years. In fact, the novice’s questions shed light on all of the exceptions, limitations, and defenses to proprietary rights—the holes in the cheese of intellectual property. The scholar’s urge is to find one theory that explains all the possible applications of the fair use doctrine, to arrange all of the cases like targets and shoot a single arrow through all of them. Perhaps fair use is designed to reduce the difficulty of clearing rights when it would be uneconomical or impossibly complex to do so: to reduce the paperwork, hassle, delay, ignorance, and aggravation that economists refer to under the sanguine name of “transaction costs.”[19] (Though the idea that fair use is about transaction costs hardly explains some of the types of fair use we care most about—the rights to parody, to criticize, to reverse engineer.) Or perhaps fair use allows the rights of a transformative author to be trumped only by a second transformative author, who is building on the first—the parodist, reviewer, collage artist, or what have you.[20] (Then again, photocopying for classroom use does not sound very “transformative.”) Could fair use be dictated by the Constitution or by international free speech guarantees? In this view, fair use provides a safety valve that allows copyright to coexist with the First Amendment, property rights over speech to coexist with freedom of expression.[21] After all, it is not entirely obvious how it could be constitutional to forbid me, in the name of a federal law, from translating Mein Kampf in order to warn of the dangers of fascism or parodying some piece of art to subversive effect.

Each of these ideas about fair use has much to recommend it, as do the many other grand theories that have been offered to explain the puzzle. And therein lies the problem.

Intellectual property is a brilliant social invention which presents us with great benefits but also with a multitude of dangers:

the danger that the monopoly is unnecessary to produce the innovation, or that it is broader or lasts for longer than is necessary to encourage future production;
that overly broad rights will chill speech, criticism, or scientific progress;
that it will restrict access in ways that discourage “follow-on” innovation;
that it will lead to industry concentration in a way that hurts consumers or citizens while being less subject to antitrust regulation precisely because the monopoly or oligopoly rests on intellectual property rights;
that it will establish strong “network effects” which cause the market to tip over to some inefficient technology; and
that it will give the rights holder control over some technology outside the range of the monopoly but closely linked to it.

The list of dangers goes on and on, and so does the list of exceptions, limitations, and restraints designed to prevent them. We restrict the length of intellectual property rights. (At least, we used to. The framers thought it so important to do so that they put the need to have a limited term in the Constitution itself; nevertheless both Congress and the Supreme Court seem to have given up on that one.) We restrict the scope of intellectual property rights, so that they cannot cover raw facts or general ideas, only the range of innovation and expression in between. (At least, we used to. Developments in database protection, gene patents, and business method patents are clearly eroding those walls.) As with fair use, we impose limitations on the rights when we hand them out in the first place. The exclusive right conferred by copyright does not include the right to prevent criticism, parody, classroom copying, decompilation of computer programs, and so on. (Though as the next chapter shows, a number of recent legal changes mean that the practical ability to exercise fair use rights is seriously threatened.)

These limitations on intellectual property do not fit a single theory, unless that theory is “avoiding the multiple and evolving dangers of intellectual property itself.” Even a single limitation such as fair use clearly responds to many different concerns about the dangers of intellectual property rights. Indeed it will evolve to fit new circumstances. When computer programs were first clearly covered by copyright law, software engineers wondered if this would cripple the industry. Why? Anyone who wishes to compete with a dominant program needs to “decompile” it in order to make their program “interoperable,” or simply better. For example, a new word processing program, no matter how good, would be dead on arrival unless it could read all the files people had created with the old, dominant word processing software. But to do this, the engineers at the upstart company would have to take apart their competitor’s program. In the process they would have to create temporary copies of the old program, even though the final product—the hot new software—would be completely different from the old. Would this be a violation of copyright law?

In a series of remarkable and far-seeing cases involving such issues, the courts said no.[22] “Decompilation” was fair use. The law of fair use had evolved in the context of expressive, nonfunctional, stand-alone works such as books, poems, songs. Now it was being applied to a functional product whose economics depended strongly on “network effects”—many types of programs are useful only if they are widely used. Without interoperability, we could never take our existing documents or spreadsheets or datasets and move to a new program, even if it was better. One program would not be able to read the files created by another. It would be as if language itself had been copyrighted. To have said that the incidental copies created in the process of decompiling software were actually infringements of copyright would have turned the law on its head because of a technological accident (you needed temporarily to “copy” the programs in order to understand how they worked and make yours work with them) and a legal accident (copyright was now being used to regulate functional articles of commerce: “machines” made of binary code). The difference between copying and reading, or copying and understanding, had changed because of the technology. The context had changed because the law was being stretched to cover new types of products, whose economics were very different from those of novels. Rather than let the dominant software companies use copyright to stop others from making interoperable software, the courts used an escape hatch—fair use—to prevent that danger and to uphold the basic goal of copyright: encouraging progress in science and the useful arts.

This long story is told to make a simple point. The variegated and evolving limitations on intellectual property are as important as the rights they constrain, curtail, and define. The holes matter as much as the cheese.

What does this have to do with the Sony case? In that case, remember, the Supreme Court had said that copying TV shows in order to time-shift was fair use. The Court could simply have stopped there. It could have said, “since most of what consumers do is legal, there can be no claim of contributory or vicarious infringement. Sony is not contributing to infringement since consumers are not infringing copyright by copying shows in the first place.” Interestingly, though this is the heart of the ruling, the court went further. It quoted some seemingly unrelated patent law doctrine on contributory infringement: “A finding of contributory infringement does not, of course, remove the article from the market altogether; it does, however, give the patentee effective control over the sale of that item. Indeed, a finding of contributory infringement is normally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee.” Clearly, the Justices were concerned that, by using copyright law, the movie studios could actually get control of a new technology.

The fact that the Court expressed this concern through an analogy to patent law was, at first sight, fairly surprising. Courts do not normally look at copyrights in quite the same way as they look at patents. For one thing, patent rights are stronger, though they are harder to obtain and last for a shorter period of time. For another, while courts often express concern about the dangers of a patent-driven monopoly over a particular technology, it is strange to see that concern in the context of copyright law. An unnecessary monopoly over a plow or a grain elevator may, as Jefferson pointed out, slow technological development. But a monopoly over Snow White or “Ode on a Grecian Urn”? We do not normally think of rights over expression (the realm of copyright) threatening to sweep within their ambit an entire new technological invention (the realm of patent).

But in the Sony case, the Supreme Court quite clearly saw that, in a world where technological developments made copying easier, the idea of contributory infringement in copyright could be used to suppress or control entire technologies that seemed, in the logic of 20/20 downside vision, to pose a threat to the copyright holder. Indeed, in some sense, the logic behind the Internet Threat—“cheaper copying requires greater control”—demands this result, though the Sony case antedates the World Wide Web by a considerable time. If it is cheap copying itself that poses the threat, then the content owners will increasingly move to gain control over the technologies of cheap copying, using copyright as their stalking horse. That is why the Sony Court went beyond the simple ruling on fair use to explain the consequences of the movie companies’ claim. In a footnote (the place where judges often bury their most trenchant asides) the Court was almost snide:

It seems extraordinary to suggest that the Copyright Act confers upon all copyright owners collectively, much less the two respondents in this case, the exclusive right to distribute VTR’s [Video Tape Recorders] simply because they may be used to infringe copyrights. That, however, is the logical implication of their claim. The request for an injunction below indicates that respondents seek, in effect, to declare VTR’s contraband. Their suggestion in this Court that a continuing royalty pursuant to a judicially created compulsory license would be an acceptable remedy merely indicates that respondents, for their part, would be willing to license their claimed monopoly interest in VTR’s to Sony in return for a royalty.[23]

The real heart of the Sony case is not that “time-shifting” of TV programs is fair use. It is an altogether deeper principle with implications for all of the holes in the intellectual property cheese. The Sony Court declared that because video recorders were capable of substantial noninfringing uses, the manufacturers of those devices were not guilty of contributory infringement. If the rights of copyright holders were absolute, if they had the authority to prohibit any activity that appeared to pose a threat to their current business model, then it is quite possible that video recorders would have been guilty of contributory infringement. It is because we have, and need, multiple exceptions and limitations on intellectual property that the Supreme Court was able to resist the claim that copyright itself forbids technologies of cheaper copying. To put it another way, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders.

Thus we have a corollary to the Jefferson Warning—call it the Sony Axiom: cheaper copying makes the limitations on copyright more rather than less important. Without those limitations, copyright law will bloat and metastasize into a claim of monopoly, or at least control, over the very architectures of our communications technology. And that is exactly where the logic of the Internet Threat is taking us today.

From Napster to Grokster

Seventeen years after the Sony decision, another court had to deal with a suit by outraged copyright holders against the creators of a technology that allowed individuals to copy material cheaply and easily. The suit was called A&M Records v. Napster.[24] Napster was a “peer-to-peer” file sharing system. The files were not kept on some huge central server. Instead, there was a central directory—think of a telephone directory—which contained a constantly updated list of the addresses of individual computers and the files they contained. Anyone who had the software could query the central registry to find a file’s location and then establish a direct computer-to-computer connection—anywhere in the world—with the person who had the file they desired. This decentralized design meant the system was extremely “robust,” very fast, and of nearly infinite capacity. Using this technology, tens of millions of people around the world were “sharing” music, an activity which record companies quite understandably viewed as simple theft. In fact, it would be hard to think of a situation that illustrated the Internet Threat better. The case ended up in front of the U.S. Court of Appeals for the Ninth Circuit, which hears cases in an area that includes California and thus has decided a lot of copyright cases over the years.

There was an irony here. When the Supreme Court decided the Sony case, it was on appeal from the Ninth Circuit Court of Appeals. Sony, with its rule about reproductive technologies with substantial noninfringing uses, reversed the appeals court decision. The Supreme Court was, in effect, telling the Ninth Circuit that it was wrong, that its ruling would have required the “extraordinary” (legal shorthand for “stupid”) conclusion that copyright law gave copyright holders a veto on new technology. In the process, the Supreme Court told the Ninth Circuit that it also did not understand the law of fair use, or the freedom that should be given to individuals to make “noncommercial” private copies. The identities of the judges had changed, but now, seventeen years later, the same Circuit Court had another high-profile case on exactly the same issues. In case any of the judges might have missed this irony, it took David Boies, the lawyer for Napster, about ninety seconds to remind them in his oral argument. “This court,” he said, adding as if in afterthought, “in the decision that the Supreme Court ultimately reversed in Sony. . . .”[25] To the laypeople in the audience it probably just seemed like another piece of legal droning. But to the lawyers in the room the message was quite clear. “The last time you got a case about a major new technology of consumer reproduction, you really screwed it up. Hope you can do better this time.” The judges’ mouths quirked—not entirely in pleasure. The point had been registered.

Think for a moment of the dilemma in which the court had been placed. On the one hand, you had tens of millions of people “sharing” music files and Napster was the service that allowed them to do it. If this was not contributory copyright infringement, what was? On the other hand, Napster seemed to fit very nicely under the rule announced in the Sony case.

The argument went like this. Like the VCR, the Napster service had substantial noninfringing uses. It allowed bands to expose their music to the world through the “New Artists” program. It made it easy to share music which was no longer under copyright. These uses clearly do not infringe copyright. There were also the claims that it permitted “space-shifting” by consumers who already owned the music or “sampling” of music by listeners as they decided whether or not to buy. One could argue that space-shifting and sampling were fair use (though in the end the court disagreed). But since we have two clear noninfringing uses, the technology obviously does have substantial uses that do not violate copyright. Thus, Napster cannot be liable as a contributory infringer, just as Sony could not be liable for the Betamax. Supreme Court precedent covers this case. The Ninth Circuit is bound by that precedent. All the judges can do, goes the argument, is to apply the words of the rule laid down in Sony, say that Napster wins, and move on to the next case. If Congress wants to make services like Napster illegal, it is going to have to pass a new law. The boundaries of the Sony rule are clear and Napster fits within them. (Of course, the last point is subject to argument, but the argument for Napster on this issue was a good one. Not overwhelming—there were more noninfringing uses in the Sony case because the normal way consumers used the technology in question was found to be a fair use—but certainly powerful.)

A more daring strategy was to suggest that all the copying done over Napster was fair use, or at least presumptively fair. In Sony, the Supreme Court had said that the law presumes that noncommercial private copying—such as taping a show at home for future viewing—is a fair use. This presumption shifts the burden to the copyright holder to prove that the practice caused harm to them. Copying on Napster was done by private individuals. No money was exchanged. Does this mean we must presume it was fair use and require the music companies and songwriters to show clear evidence of “market harm” if they want to convince us otherwise?

It sounds as though proving market harm would be pretty easy. How could millions of people exchanging hundreds of millions of songs not be causing harm? But it is more complicated. Remember the Jefferson Warning. We are not talking about swiping shoes from a shoe store. There one merely has to show the theft to prove the loss. By contrast, music files are copied without being “taken” from their owner. The record companies would have to show harm to their market—the people downloading who do not purchase music because it is available for free. Those who download, but would not have purchased, do not count. And we have to balance those who are deterred from purchasing against those who purchase a whole CD because they are exposed to new music through Napster. One very interesting empirical study on the subject indicates that the result is a wash, with hardly any measurable effect on sales; the overall drop in CD purchases results from larger macroeconomic issues.[26] This study, however, has been subject to detailed methodological criticism.[27] Another study shows a weak effect on sales, though rather woundingly it seems to suggest that the result is economically efficient—fewer people end up with music they do not like.[28] Other studies, by contrast, support the record company position—suggesting that illicit file sharing does indeed undercut sales of both CDs and authorized digital downloads.[29] Given the complexities of the issue, the record companies did not want to engage in a war of dueling empirical studies.

So, if Napster’s users were not infringing copyright law in the first place—at least until the record companies came up with convincing evidence of market harm—because their copying was noncommercial, then Napster could hardly be guilty of contributory infringement, could it? There would be no infringement at all!

You could see Mr. Boies’s arguments as simple equations between the cases.

Noninfringing uses such as recording public domain films and “time-shifting” programs are equivalent to noninfringing uses such as the New Artists program or sharing public domain music (and maybe “space-shifting” one’s own music?); or
Private noncommercial videotaping is equivalent to private noncommercial file sharing. Both are presumptively fair uses.
Either way, Sony=Napster and Napster wins.

Napster did not win, of course, though when the judges handed down their decision it was clear they had been paying attention to Mr. Boies, at least enough to make them very wary of tampering with Sony. They claimed that they were upholding that case, but that Napster could be liable anyway. How? Because there was enough evidence here to show that the controllers of Napster had “actual knowledge that specific infringing material is available using its system, that it could block access to the system by suppliers of the infringing material, and that it failed to remove the material.” There was indeed evidence that Napster knew how its system was being used—an embarrassing amount of it, including early memos saying that users will want anonymity because they are trading in “pirated music.” Then there were nasty circumstantial details, like the thousands of infringing songs on the hard drive of one particular Napster employee—the compliance officer tasked with enforcing the Digital Millennium Copyright Act! (The recording company lawyers waxed wonderfully sarcastic about that.)

But despite the ludicrously dirty hands of Napster as a company, lawyers could see that the appeals court was making a lot of new law as it struggled to find a way to uphold Sony while still making Napster liable. The court’s ruling sounded reasonable and clear, something that would only strike at bad actors while paying heed to the Sony Axiom and the assurance of safety that the rule in Sony had provided to technology developers for the previous twenty years. But hard cases make bad law. In order to accomplish this piece of legal legerdemain, the court had to alter or reinterpret the law in ways that are disturbing.

The first thing the court did was to reject the argument that the “sharing” was private and noncommercial. As to the idea that it is not private, fair enough. Sharing one’s music with fifty-four million people does not sound that private, even if it is done for private ends, in private spaces. What about noncommercial? Embracing some earlier rulings on the subject, the court said a use was “commercial” if you got for nothing something for which you would otherwise have to pay. On the surface this sounds both clever and reasonable—a way to differentiate home taping from global file sharing—but the argument quickly begins to unravel. True, the Betamax owners could get TV shows for free just by watching at the regular time. But they could not get a copy of the show for free at the moment they wanted to watch it. That was why they taped. One could even argue that Napster users would have access to most songs over the radio for free. But lawyers’ quibbling about which way the rule cuts in this case is not the point. Instead, we need to focus on the change in the definition of “commercial,” because it illustrates a wider shift.

Remember, a finding that a use is “noncommercial” makes it more likely that a court will find it to be legal—to be a fair use. The old test focused mainly on whether the motive for the copying was to make money. (A different stage of the inquiry concerned whether there was harm to the copyright holder’s market.) The Napster court’s test concentrates on whether the person consuming the copy got something for free. Instead of focusing on the fact that the person making the copy is not making money out of it—think of a professor making electronic copies of articles for his students to download—it focuses on the presumptively dirty hands of those who are “getting something for nothing.” But lots of copyright law is about “getting something for nothing.” To put it differently, one central goal of copyright is to limit the monopoly given to the copyright owner so that he or she cannot force citizens to pay for every single type of use. The design of the law itself is supposed to facilitate that. When “getting something for free” comes to equal “commercial” in the analysis of fair use, things are dangerously out of balance. Think back to Jefferson’s analogy. If I light my candle at yours, am I getting fire for free, when otherwise I would have had to pay for matches? Does that make it a “commercial” act?

Having dismissed the claim that this was noncommercial sharing, the court then reinterpreted the Sony decision to allow liability when there was “actual knowledge” of specific copyright violations, an ability to block access by infringers, and a failure to do so. Neither side was entirely happy with this ruling, but the record companies believed—rightly—that it would allow them effectively to shut Napster down. Yet the Napster ruling only postponed the issue. The next set of file sharing services to be sued after Napster were even more decentralized peer-to-peer systems; the Napster court’s reinterpretation of Sony would not be able to reach them.

The peer-to-peer file sharing service called Grokster is a relatively typical example. Unlike Napster, Grokster had no central registry. The system was entirely run by the individual “peer” computers. Because the system was designed this way, the people who made and distributed the software had no knowledge of specific infringing files. The users were doing the searching, indexing, and storing, and Grokster had no ability to control their behavior. For those reasons, a court of appeals held that Grokster was not liable. As in Sony, the system had substantial noninfringing uses. Lots of interesting content was traded on Grokster with the copyright holder’s consent. Other material was in the public domain. Grokster made money by streaming advertisements to the users of its software. The movie companies and record companies saw this as a flagrant, for-profit piracy ring. Grokster’s response was that like the makers of the VCR, it was simply providing a technology. Its financial interest was in people using that technology, not in using it for illicit purposes—though, like the VCR manufacturer, it would profit either way. The court of appeals agreed. True, the majority of the material traded on Grokster was illicitly copied, but the court felt that it could not give the recording or movie companies control over a technology simply because it allowed for easier copying, even if most of that copying was illegal. As I tried to point out in the section on the Sony Axiom, that line of thought leads to copyright holders having a veto over technological development.

It was at this point that the Supreme Court stepped in. In the case of MGM v. Grokster,[30] the Supreme Court followed the line of the Napster court, but went even further. The Court created a new type of contributory copyright infringement—while apparently denying it was doing so. Grokster and its fellow services were liable because of three different kinds of evidence that they had “intended” to induce copyright violation. First, they were trying “to satisfy a known demand for copyright infringement.” This could be shown by the way that they advertised themselves as alternatives to the “notorious file-sharing service, Napster.” Second, the file sharing services did not try to develop filtering software to identify and eliminate copyrighted content—though this alone would not have been enough to make them liable. Finally, their advertising-supported system clearly profited by high-intensity use, which they knew was driven in the most part by illicit copying. This too would not have been enough by itself, the Court added, but had to be seen in the context of the whole record of the case.

Let me be clear. I wept no tears for Napster, Grokster, and their ilk. I see no high-minded principle vindicated by middle-class kids getting access to music they do not want to pay for. It is difficult to take seriously the sanctimonious preening of those who cast each junior downloader of corporate rock as a ChÃ© Guevara, fighting heroically to bring about a new creative landscape in music. (It is almost as hard to take seriously the record industry executives who moralistically denounce the downloading in the name of the poor, suffering artists, when they preside over a system of contracts with those same artists that makes feudal indenture look benign.) The file sharing companies themselves were also pretty unappealing. Many of the services were bloated with adware and spyware. True, some of their software engineers started with a dewy-eyed belief that this was a revolutionary technology that would break the record companies and usher in a new era of musical creativity. Whether one agrees or disagrees with them, it is hard—for me at least—to doubt their sincerity. But even this quality did not last long. For most of the people involved, the words “stock options” worked their normal, morally debilitating magic. In internal company correspondence, attacks on the hypocrisy of the music companies and defenses of a democratic communications structure imperceptibly gave way to discussions of “customer base,” “user experience,” and “saleable demographics.” I care little that Napster and Grokster—as individual companies—lost their specific legal battles. There are few heroes in this story. But if we had to rely on heroes, nothing would ever get done.

I do care about the technology behind Napster and Grokster—about the kind of decentralized system it represents. I also care about the principle I identified as the Sony Axiom—a principle that goes far beyond music, peer-to-peer systems, or the Internet as a whole. The Supreme Court’s decision in Grokster could have been much worse. But it still offers a modest threat both to that technology and to that axiom.

What is so great about peer-to-peer systems? We talk about “cheap speech” on the Internet, but bandwidth is actually expensive. If one is talking about music or video files, and one wishes to speak to many people in a short period of time, one vital way to have cheap speech is over peer-to-peer networks. If many of your viewers or listeners are willing to become broadcasting stations as they watch, you can cheaply reach a million people in a short period of time with your video of abuse in Abu Ghraib or your parody of political leaders. You do not need to rely on a broadcasting station, or even on the continued existence of entities such as YouTube, which face their own legal worries. By making your listeners your distributors, you can quickly reach the same number of ears that the payola-soaked radio waves allow the record companies to reach.

One need not cheer Grokster. Much of what went on there was indeed illicit. But there are two key things to understand about peer-to-peer networks. The first is that they are hard to police. They have multiple nodes. That is why they work. It means they will have both infringing and noninfringing uses, and the noninfringing uses will be centrally connected to our deepest values of free speech and cultural decentralization.

The second feature of peer-to-peer networks is even more basic. They are networks and thus subject to the laws of network economics. In short, they only work well if many people use them. A person who uses a peer-to-peer system that no one else uses is in the position of the person who owns the only fax machine in the world. Peer-to-peer networks provide cheap and unregulable audiovisual or data-heavy “speech” to a mass audience. And if the past is any guide, those networks will also carry large amounts of illicit material, just as photocopying machines (and VCRs) are widely used to violate copyright. The Grokster case makes it harder, but not impossible, to have successful, widely used peer-to-peer systems that are not themselves illicit. If they are widely used, there will be infringing content. If you try to police them and filter them, you will know more about that infringing content and thus might be liable—that was the point of the Napster case. If you do not, you will be failing to take precautions. That was the point of the Grokster case. What is a poor peer-to-peer network to do? Apart from making sure that the last four letters of your service’s name are not “-ster,” I am hard-pressed to advise you.

A decision does not need to make an activity illegal in order to impede it. It only needs to make it uncertain. Already, for example, the free—and so far as I could tell, entirely well-meaning—service “bonpoo,” which allowed you to send large file attachments to many people at once, has shut down all of its capabilities except photo transfer. That is simply one trivial instance of a larger harm. Lots of new communications technologies will remain undeveloped because of the uncertainties left by this ruling.

My colleague Jennifer Jenkins gave one useful hyperbolic illustration, drawing on earlier work by the Electronic Frontier Foundation: if one were launching the iPod today, it is not clear how it would fare under Grokster’s standard. Of course, there is no danger that the iPod will be challenged. It has become respectable and the music companies ended up sanctioning it. But how does it fare if we simply apply the tests laid down in the Grokster case? There is Apple’s “tainted” advertising campaign, urging users to “Rip, Mix, and Burn.” Does this not suggest complicity, or even intent? There is the fact that the iPod does not restrict itself solely to proprietary formats protected by digital rights management. It also allows uncontrolled MP3 files despite the fact that this format is “notoriously” used to transfer files against the wishes of the copyright owner. This, surely, is a “failure to police.” And finally, there is the fact that it would cost about $10,000 to fill an iPod with songs downloaded from iTunes. Clearly Apple must be aware that much of the music that fills iPods is illicitly copied. They are profiting from that fact to drive demand for the product, just as Grokster was profiting from the attractions of illicit traffic to drive people to use their service!

No one is going to sue Apple now, of course. In fact, established players in the marketplace are probably fairly safe (and have better lawyers). But what if a product as good as the iPod were being developed now by some upstart company? What if it were no more and no less likely to be used for infringing purposes? Would the business plan ever see the light of day? Or would it be quietly smothered due to legal uncertainty? I have little sympathy for Grokster the company, but the decision that doomed it is a bad piece of technology policy.

There is a second reason to dislike the Grokster decision. Despite some of the angst-ridden announcements made when the decision was handed down, the Supreme Court has not killed peer-to-peer systems. The concept is far too well entrenched. But the decision will mean that there are fewer of them that are widely used, easy to operate, and made by responsible and reputable people you can trust. This will probably lessen, but not end, illicit copying online. But that effect comes with a price—it makes our communications architecture a little bit more tightly controlled, reducing but not removing the availability of methods of mass distribution that are entirely outside centralized public or private control. It is another—relatively small—step toward an Internet that is more like cable TV or iTunes, a one-way flow of approved content. One might decide that such a price was well worth paying. But where is the limiting principle or end point of the logic that led to it?

There is no provision in U.S. statutory copyright law that imposes liability for contributory or vicarious infringement. None. The patent statute has such a provision; not the Copyright Act. The courts have simply made the scheme up themselves. Then they made up limitations—such as Sony—in order to rein it in. In Grokster, the Supreme Court went further. It made up a new type of “inducement” liability. Fine. As I have tried to indicate here, the decision is not as dreadful as it is reputed to be. But so long as there is any unregulated space in our communications network, some portion of it will have illicitly copied content on it. The more the system is free of central control, the more it is open to use by any citizen, the cheaper it gets—all very desirable characteristics—the more illicit content there will be. That is the premise of the Internet Threat—the belief that control must rise as copying costs fall. I have tried here to suggest an alternative interpretation, the Sony Axiom: without a strong internal set of limitations over copyright, cheaper copying and the logic of the Internet Threat will always drive us toward giving control over our communications architecture to the content industries.

There was one particularly striking moment in the Napster oral argument. The lawyer for the recording companies was arguing that Napster was illegal. The judges interrupted, as they often do, and there was a back-and-forth debate about the likely reach of any ruling that would shut down Napster. “I am not trying to say the Internet is illegal,” said the lawyer. There was a pause as everyone weighed those words carefully.

My response would be “Really? Why not?” The logic of the Internet Threat leads to the position that a network is either controlled or illegal. The better and cheaper the network, the tighter the control needed. The Internet itself could have been designed differently. There could have been more centralized control, filtering of content, a design based on one-way transmission, closed protocols that allow users only a limited number of options. Indeed there were such systems—the national French Minitel system is an example. The Internet represents the opposite set of choices—freedom from centralized control, absence of intervention. In a famous article, Saltzer, Reed, and Clark provided the argument that an “end-to-end” network that is “dumb” and leaves processing to the “ends”—the smart terminals at either end of the wires—will be stable and robust.[31] But it will also be remarkably uncontrolled and it will lower global copying costs close to zero for digital content. It is that principle that has made it successful. To put it tersely: the logic of the Internet Threat runs in exactly the opposite direction to the Internet itself. The logic of control is not the logic of the Net.

Here is one last thought experiment. Apply the same test I suggested for the iPod to the Internet itself.[32] Imagine you knew nothing of the Net. (Those of you who are over twenty-five may actually be able to remember when you knew nothing of the Net.) Imagine that you are sitting in a room somewhere discussing—perhaps with a group of government bureaucrats or some policy analysts from the Commerce Department—whether to develop this particular network. The scientists are enthusiastic. They talk of robustness and dumb networks with smart terminals. They talk of TCP/IP and HTML and decentralized systems that run on open protocols, so that anyone can connect to this network and use it any way they want to. You, of course, know nothing about the truly astounding outburst of creativity and communication that would actually flower on such a system, that would flower precisely because it is so open and no one country or company controls it or the protocols that run it. You do not know that millions of people worldwide will assemble the greatest factual reference work the world has ever seen on this network—often providing their information for free out of some bizarre love of sharing. You do not know about Amazon.com or Hotornot.com or the newspapers of the world online, or search engines, automatic page translation, plug-ins, or browsers. You cannot imagine free or open-source software being assembled by thousands of programmers worldwide. E-mail is only a dimly understood phenomenon to you. Teenagers in your world have never heard of instant messaging—a nostalgic thought.

As the scientists talk, it becomes clear that they are describing a system without centralized direction or policing. Imagine that your decision is framed by the logic of control I have described in this chapter, by the fears that the content industry has had for at least the last thirty years—by the logic of the suit they brought in Sony. Imagine, in other words, that we make the up-or-down decision to develop the Internet based on the values and fears that our copyright policy now exhibits, and that the content industries have exhibited for thirty years. There is no way, no way at all, that a network like it would ever be developed. It would be strangled at birth. You would be told by the lawyers and policy wonks that it would be a haven for piracy and illegality. (And it would be, of course—though it would also be much, much more.) You would be told that the system needed to be designed to be safe for commerce or it would never attract investment, that it would need to be controlled and centralized for it to be reliable, that it would need to be monitored to stop it being a hotbed of crime. With the copyright lawyers in the room, you would end up designing something that looked like cable TV or Minitel. The Internet would never get off the ground.

The Internet is safe now, of course, because it developed so fast that it was a reality before people had time to be afraid of it. But it should give us pause that if we had our current guiding set of policy goals in place, our assumption that cheaper copying means we need greater regulation, we would never have allowed it to flourish. As Jessica Litman points out, we are increasingly making our decisions about technology and communications policy inside copyright law. We are doing so according to the logic of control that I have sketched out in this chapter. But the logic of control is a partial logic. It blinds us to certain possibilities, ones that have huge and proven potential—look at the Internet.

The law has not been entirely one-sided, however. The Sony case drew a line in the sand which promised to halt the inevitable drift toward greater and greater control over communications technology by content owners. It turned out the heavens did not fall. Indeed, the content companies thrived. Perhaps that line was drawn in the wrong place; reasonable people can disagree about that. But Grokster smudges the line without drawing a clear new one. If that new line is drawn according to the logic of control, what technologies will we never see? Could they be technologies that would transform our lives as unimaginably as the Internet has since 1995?

I have described the story line—the cluster of metaphors and images and concerns—that pervades our copyright policy. I labeled it “the Internet Threat.” In the next chapter, I discuss an alternative story line, a different way of understanding our current policies. The subject of that story line is the best-known example of contemporary attempts to control the digital world, the Digital Millennium Copyright Act or DMCA.

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Chapter 4: Further Reading

The first book to read on the history of the tension between copying technologies and the law that regulates them is Paul Goldstein’s effortlessly erudite Copyright’s Highway: From Gutenberg to the Celestial Jukebox, 2nd ed. (Stanford, Calif.: Stanford University Press, 2003). Goldstein and I differ somewhat in our optimism about current regulatory developments but his work is an indispensable beginning for the inquiry and a pleasure to read. One fascinating theme in the book is that the intellectual tension between maximalists and minimalists (or optimists and pessimists as he describes them) is actually a fundamental part of copyright law’s survival strategy—its dialectical method of dealing with technological change. If so, in this book I am struggling gamely to do my part by holding up my side of the dialectic. It does not seem to be winning much recently. Perhaps copyright’s Hegel is asleep.

Much of this chapter concerns itself with copyright’s response to the Internet. No book comes close to laying this out as well as Jessica Litman’s Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001). Litman is a beautiful essayist and this book is both accessible and detailed. Those readers who are interested in the history of that dying technology, the VCR, will find a brilliant account in James Lardner, Fast Forward: Hollywood, the Japanese & the VCR Wars (New York: Norton, 1987). One needs only to scan its pages to pick up the eerie foreshadowing of the Internet Threat. Litman’s article on the Sony case provides a detailed legal history to back up Ladner’s social history. Jessica Litman, “The Sony Paradox,” Case Western Reserve Law Review 55 (2005): 917–962. Pamela Samuelson has a fine article exploring the jurisprudential impact of Sony’s reasoning. Pamela Samuelson, “The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice Stevens,” Fordham Law Review 74 (2006): 1831–1876.

The scholarly literature on Napster, copyright, and peer-to-peer technologies generally is both wide and deep. In addition to Litman’s book, some personal favorites include: Raymond Shih Ray Ku, “The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology,” University of Chicago Law Review 69 (2002): 263–324; Mark A. Lemley and R. Anthony Reese, “Reducing Digital Copyright Infringement Without Restricting Innovation,” Stanford Law Review 56 (2003–2004): 1345–1434; Jane C. Ginsburg, “Separating the Sony Sheep From the Grokster Goats: Reckoning the Future Business Plans of Copyright-Dependent Technology Entrepreneurs,” University of Arizona Law Review 50 (2008): 577–609; Justin Hughes, “On the Logic of Suing One’s Customers and the Dilemma of Infringement-Based Business Models,” Cardozo Arts and Entertainment Law Journal 22 (2005): 725–766; Douglas Lichtman and William Landes, “Indirect Liability for Copyright Infringement: An Economic Perspective,” Harvard Journal of Law and Technology 16 (2003): 395–410; and Glynn S. Lunney, Jr., “Fair Use and Market Failure: Sony Revisited,” Boston University Law Review 82 (2002): 975–1030.

In addition to these articles, a number have focused specifically on alternative methods of encouraging cultural production while maximizing technological and cultural freedom. Two that have profoundly influenced my own thinking are Neil Weinstock Netanel, “Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing,” Harvard Journal of Law and Technology 17 (2003): 1–84; and William Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (Palo Alto, Calif.: Stanford University Press, 2004). Fisher, whose presentations and articles reveal a cathedral-like conceptual structure that would have delighted the Encyclopedists, argues powerfully that a system of levies on broadband technology, distributed in proportion to the popularity of the music downloaded could allow us to permit “free” access to music while still compensating musicians. His responses to the problems of measurement, gaming of the system, privacy, and so on will not convince everyone but they represent by far the most systematic treatment of the subject.

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Chapter 5:

The Farmers’ Tale: An Allegory

Imagine that a bustling group of colonists has just moved into a new area, a huge, unexplored plain. (Again, assume the native inhabitants have conveniently disappeared.) Some of the colonists want to farm just as they always did in the old country. “Good fences make good neighbors” is their motto. Others, inspired by the wide-open spaces around them, declare that this new land needs new ways. They want to let their cattle roam as they will; their slogan is “Protect the open range.” In practice, the eventual result is a mixture of the two regimes. Fields under cultivation can be walled off but there is a right of passage through the farmers’ lands for all who want it, so long as no damage is done. This means travelers do not need to make costly and inefficient detours around each farm. In the long run, these “public roads” actually increase the value of the private property through which they pass. They also let the ranchers move their cattle around from one area of pasture to another. The ranchers become strong proponents of “public, open highways” (though some people muse darkly that they do very well out of that rule). Still, most people want open highways; the system seems to work pretty well, in fact.

Two new technologies are introduced. First, the automobile is developed. Now thieves can drive through the farmers’ fields, stop quickly to grab some corn or a lettuce, and be back on the highway before they can be caught. Of course, the farmers’ costs have also fallen dramatically; now they have tractors to work their fields and trucks to take their products to distant markets. The farmers do not dwell on the benefits of the new technology, however. Understandably, they focus more on the profits they could reap if they could get all the advantages of the technology and none of its costs. They demand new legal protections aimed at producing that result. “What’s good for agriculture is good for the nation,” they say. But now comes the second technological shock—the development of barbed wire. The cost of erecting impassable barriers falls dramatically. The farmers begin to see the possibility of enclosing all of their land, roads and fields alike. This will help them protect their crops from pilfering, but it will also allow them to charge people for opening the gates in their fences—even the gates on public roads. That is a nice extra revenue stream which will, the farmers say, “help encourage agriculture.” After all, more fences mean more money for farmers, and more money for farmers means they can invest in new methods of farming, which will mean everyone is better off, right?

What is to be done? Assume that each side presents its case to the legislature. There are three obvious possibilities:

First, the legislature can simply tell each side to work it out amongst themselves. The law will continue to forbid trespass, but we are neither going to make it a crime to put up a barbed wire fence if it blocks legitimate public rights of way nor to make it a crime to cut a barbed wire fence, unless the fence cutter is also a trespasser. The farmers can attempt to enclose land by putting barbed wire around it. Ranchers and drivers can legally cut those fences when they are blocking public rights of way. Trespass remains trespass, nothing more.

Second, the legislature could heed the ranchers’ fears that barbed wire will permit the farmers not only to protect their own land, but to rob the public of its existing rights of way, turning open highways into toll roads. (The ranchers, of course, are more concerned with the rights of cattle than people, but most drivers agree with them.) As a result, the state could forbid the erection of a barbed wire fence where it might block a public right of way—classing it as a kind of theft, perhaps.

Third, the legislature could take the farmers’ side. Theorizing that this new automobile technology presents “a terrible threat to agriculture, because of rampant crop piracy,” the state could go beyond the existing law of trespass and make it a crime to cut barbed wire fences wherever you find them (even if the fences are enclosing public lands as well as private, or blocking public roads). To back up its command, it could get into the technology regulation business—making the manufacture or possession of wire cutters illegal.

The state picks option three. Wire cutting becomes a crime, wire cutters are classed with lock picks and other “criminals’ tools,” and the people who make wire cutters are told their business is illegal. A storm of protest arises in the rural driving community. The wire cutter manufacturers claim that their products have lots of legitimate uses. All to no avail: the farmers press on. They have two new demands. Cars should be fitted with mandatory radio beacons and highways put under constant state surveillance in order to deter crop theft. In addition, car trunks should be redesigned so they can hold less—just in case the owner plans to load them up with purloined produce. Civil libertarians unite with car manufacturers to attack the plan. The farmers declare that the car manufacturers are only interested in making money from potential thieves and that the civil libertarians are Nervous Nellies: no one has anything to fear except the criminals. “What’s good for agriculture is good for the nation,” they announce again. As the barbed wire gates swing shut across the highways of the region, the legislature heads back into session.

Between Paranoia and Reality: The DMCA

I have argued that confusing intellectual property with physical property is dangerous. I stand by that argument. Yet analogies to physical property are powerful. It is inevitable that we attempt to explain new phenomena by comparing them to material with which we are more familiar. While the content companies’ tales of “theft” and “piracy” are the most prevalent, they are by no means the only such analogy one can make. In this chapter I try to prove that point.

The Farmers’ Tale is my allegorical attempt to explain the struggle over the single most controversial piece of intellectual property legislation in recent years, the Digital Millennium Copyright Act, or DMCA.[1] The DMCA did many things, but for our purposes its crucial provisions are those forbidding the “circumvention of copyright protection systems,” the technological measures that copyright holders can use to deny access to their works or control our behavior once we get access. These measures include encryption, controls on how many times a file can be copied, password protection, and so on. Copyright protection systems are, in other words, the digital equivalent of barbed wire, used to add an additional layer of “physical” protection to the property owner’s existing legal protection. But, unlike barbed wire, they can also control what we do once we get access to the property.

The rules that forbid circumvention of these systems are logically, if not elegantly, referred to as the anticircumvention provisions. They are to be found in Section 1201 of the Copyright Act, an ungainly and lumpily written portion of the law that was inserted in 1998 as part of the complex set of amendments collectively referred to as the DMCA. I will explain the significance of these rules in a moment. My hope is that the analogy to the Farmers’ Tale will make them a little easier to understand—at least for those of you for whom talk of digital rights management, anticircumvention provisions, and network effects is not second nature.

Notice the differences between this allegory and the “Internet Threat” story line I described in the last chapter. There are two sets of bad guys in the Farmers’ Tale. The greedy thieves (who are still thieves in this story—not heroes) and the greedy farmers who use a genuine if indefinite “threat” posed by a new technology to mask a power grab. The Internet Threat is the story of an industry devastated by piracy, in desperate need of help from the state to protect its legitimate property interests. By contrast, the Farmers’ Tale is the story of a self-interested attempt not only to protect property but to cut off recognized rights of public access in a way that will actually make the whole society worse off. The legitimate role of the state in protecting private property has been stretched into an attempt to regulate technology so as to pick winners in the marketplace, enriching the farmers at the expense of consumers and other businesses. In the long run this will not be good for business as a whole. A patchwork of private toll roads is an economic nightmare.

That is not the most worrying part of the story: the farmers’ proposals are moving in the direction of regulating still more technology—the mandatory radio beacons and constantly monitored roads conjure up a police state—and all to protect a bunch of hysterical vegetable growers whose political clout far outweighs their actual economic importance.

Both the Internet Threat and the Farmers’ Tale are, of course, ways to understand what is currently going on in the intellectual property wars. In the digital realm, the part of the farmers is played by the content companies, the recording industry associations, the movie and software trade groups. Pointing to the threat of digital piracy, they demanded and received extra legal protection for their copyrighted content. Unlike earlier expansions—longer copyright terms, more stringent penalties, the shrinking of exceptions and limitations, expansions in copyrightable subject matter—this was not a protection of the work itself; it was a protection of the digital fences wrapped around it, and a regulation of the technology that might threaten those fences.

What is the significance of this? The digital revolution makes it easier to copy copyrighted content. It also makes it easier to protect that content, and to do so in a more granular and precisely calibrated way. Imagine being able to sell a paperback book that could only be read by the original purchaser or a song that could only be listened to by a particular person in a particular room. Digital rights management technology makes it a lot easier to do these things. Suddenly the copyright owners have considerable physical control over their songs, e-books, and software, even after they have sold them. It is as if the recording industry or the publishers had a representative in your living room. They can use that control not merely to prevent illicit copying but to control and limit usage in ways that go far beyond their exclusive rights under copyright. All of this happens without the law or the state doing anything. Like barbed wire, this is a technological protection measure.

Like the farmers, the content companies were not content with their barbed wire alone. They wanted legally protected barbed wire in addition to their existing legal rights under copyright. Under the Digital Millennium Copyright Act, it became illegal to circumvent a technical protection measure such as encryption—the digital barbed wire behind which content companies secrete their work—even if what you did with the content when you got past the barbed wire was a fair use; excerpting a fragment of a film for a school presentation, for example, or making a copy of an encrypted audio file for personal use in another device. In other words, by using digital barbed wire, the content companies could prevent citizens from making the “fair uses” the copyright law allowed. This undermines some of the limitations on their exclusive rights that the Copyright Act explicitly carves out in Section 107, and thus shifts the balance of power that the Copyright Act establishes. Cutting barbed wire became a civil wrong, and perhaps a crime, even if the wire blocked a public road. Under most circumstances, making wire cutters was also now against the law.

The ranchers—whose digital equivalents are communications companies and hardware manufacturers—chafed under these new rules. The most powerful groups managed to get special dispensations. Internet service providers, for example, got a qualified immunity from copyright infringement that occurs over their networks. But ordinary citizens, librarians, and civil libertarians also complained, and they were not as well represented in the legislature. It is true that the new rules may help to prevent illicit copying, but they also strike a blow against the exercise of fair use rights—rights that are important both to free speech and competition. Even if the content companies were absolutely right about the threats from digital piracy, this consequence should make us pause. But critics of the DMCA say that there is little evidence that the content companies are right. They quote some of the empirical studies I mentioned in the last chapter, particularly the ones that show no net negative effect from unauthorized music downloading on CD sales. They claim—and they are on strong ground here—that even if there are some losses from the new copying technologies, there are also benefits. Like the farmers, the critics would argue, the content companies take the benefits of the new technology for granted, but wish the law to step in to ameliorate the harms it also creates. And like the farmers, they are not yet satisfied. Their new proposals go even further—scarily further. Thus runs the critics’ argument.

The critics of the DMCA conjure up a world in which it will be illegal to lend each other books or songs, where it will be impossible for us to copy even small fragments of digital work for criticism or parody, where encryption research will be severely “chilled,” and where large quantities of the public domain will be enclosed together with the copyrighted content that the DMCA is supposed to protect. (The Electronic Frontier Foundation’s “Unintended Consequences” studies give concrete examples.)[2] They think the DMCA undoes the balance at the heart of copyright law, that it can be used to entrench existing businesses and their business methods, that it threatens speech, competition, privacy, and innovation itself. In short, they think the DMCA is the worst intellectual property law Congress has ever passed and view the adoption of similar laws around the world with a reaction little short of horror.

Those who supported the DMCA disagree, of course, and do so honestly. They see rampant piracy as a reality and the threat to fair use as some kind of academic hypothetical rarely encountered in reality. What’s more, many of them do not think fair use is that important economically or culturally. If markets work well, users could be made to pay for the rights that fair use gives—but only if they wanted them. One could buy expensive digital books which one was allowed to share, quote, or copy for classroom use, and cheaper ones which one had to keep to oneself. Remember that for many of the people who supported the DMCA, fair use is something of a “loophole”; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state. (Remember the Sony Axiom from Chapter 4?) They find the analogy of fair use to a public road ludicrous. This film, or book, or song, is mine; anything you do with it, or to it, you do at my sufferance. (Remember the Jefferson Warning from Chapter 2?)

How has the DMCA worked in reality? Which group’s attitudes were vindicated? Two case studies may help us to answer these questions.

Infectious Speech: The DMCA and Freedom of Expression

Jon Johansen, a 16-year-old Norwegian, was the unwitting catalyst for one of the most important cases interpreting the DMCA. He and two anonymous helpers wrote a program called DeCSS. Depending on whom you listen to, DeCSS is described either as a way of allowing people who use Linux or other open source operating systems to play DVDs on their computers, or as a tool for piracy that threatened the entire movie industry and violated the DMCA.

A little background is in order. When you play a commercial DVD, your actions are partly controlled by a simple encryption scheme called CSS, or the Content Scramble System. The DVD Copy Control Association licenses the keys to this encryption system to the manufacturers of DVD players. Without a key, most DVDs could not be played. The manufacturer then embeds this key in its hardware design in such a way that it is easy for your player to decode and play the movie but hard, at least for a person of average technical competence, to copy the decoded “stream.”

Because the DVD Copy Control Association will only license keys to manufacturers whose DVD players conform exactly to their specifications, the CSS scheme can also be used to control viewers in other ways. For example, DVD players are required to have one of six “region codes,” depending on where in the world they are sold. Region 1 is the United States and Canada. Region 2 is Japan, Europe, South Africa, the Middle East, and—bizarrely—Greenland. Region 3 is South Korea, Taiwan, and Hong Kong; and so on. The CSS scheme can be used to restrict a movie to a player with the appropriate region code. If you try to play a movie coded for region 6 (China) in a DVD player from region 1, it will not play. This allows filmmakers to distribute different versions of films to different regions at different times based on sequential release in cinemas, or simply to distribute DVDs with different prices to different regions without worrying about whether the cheaper DVDs will “leak” into the more lucrative markets. CSS and the hardware scheme that unlocks it can also be used to prevent you from fast-forwarding through the commercials at the beginning of the movie if the copyright owner does not want you to, or from skipping the FBI notice. The machine will not do it. In fact, it is deliberately built so that it cannot do it.

What we have here is a digital fence that is partly used to prevent copying. Movie studios are understandably worried about the worldwide circulation of perfect digital copies of their movies. CSS was supposed to help to prevent that, or at least make it much harder. But because almost all movies are encrypted with CSS and access to the keys comes with conditions, CSS also allows a more fine-grained control over consumers. Manufacturers are not allowed to make players which can view movies from all region codes or skip portions of the DVD that the owners do not want you to skip. The licensing body puts it this way on its Web site: “Q. Under the terms of the CSS licensing agreement, is it legal for a licensed manufacturer to produce and sell a product which allows a user to disable any CSS protections? A. No. Such products are not allowed under the terms of the CSS license. They are illegal.”[3] A technology introduced to protect intellectual property rights allows control in ways that those rights alone do not.

Before the DMCA, the movie companies could have done exactly this. They could have wrapped their movies in a digital fence. The consumer electronics companies that wanted to could license a key and be allowed to use a trademark that indicated that they were approved by the DVD Copy Control Association. But what if a manufacturer of DVD players felt that American consumers wanted to be able to play their Japanese anime movies without buying another DVD player to do so? Or what if they thought people were antsy and did not want to watch the FBI notice before every film? The manufacturer could have tried to “reverse engineer” the CSS system, to figure out how it worked. If they succeeded, they could make a player that was free of the restrictions that the CSS licensing authority imposed.

Of course there were some legal limitations even before the DMCA. Our hypothetical manufacturer could not break into the safe where the CSS code was being held or bribe an employee to provide it. (That would be a trespass or a violation of trade secret law.) It could not violate copyright laws over the various types of software that controlled DVD players. It could not use the trademarks of any of the entities involved, including any seal of approval granted by the DVD Copy Control Association. But it could—at least in the United States—try to reverse engineer the product so as to make a competing product with features that the customers liked more. It would be no more illegal than a company making a cheaper generic razor cartridge that fits my expensive Gillette Mach 3 razor, a generic printer cartridge to replace the expensive one in my Lexmark printer, or, for that matter, a generic remote control for my garage door opener. In each case, of course, the original manufacturer would prefer that I use their products rather than the unlicensed ones. They can design their product to make it hard to use a generic replacement or even tell me that my warranty will be void if I use one. But they cannot say that the unlicensed product is illegal. We are back in option one of the Farmers’ Tale, before the legislature acted. The farmers can put up their wire, and even use it to block passage that would be otherwise legal, but it is not a crime to figure out a way through the fence unless the fence cutter is also a trespasser. The DMCA, however, might have changed all of that.

Let us return to Mr. Johansen, the 16-year-old Norwegian. He and his two anonymous collaborators claimed that they were affected by another limitation imposed by the CSS licensing body. At that time, there was no way to play DVDs on a computer running Linux, or any other free or open source operating system. (I will talk more about free and open source software later.) Let’s say you buy a laptop. A Sony Vaio running Windows, for example. It has a slot in the side for DVDs to slide in and software that comes along with it which allows the DVD reader to decode and play the disk. The people who wrote the software have been licensed by the DVD Copy Control Association and provided with a CSS key. But at the time Mr. Johansen set out to create DeCSS, the licensing body had not licensed keys to any free or open source software developers. Say Mr. Johansen buys the Sony Vaio, but with the Linux operating system on it instead of Windows. The computer is the same. The little slot is still there. Writing an open source program to control the DVD player is trivial. But without the CSS key, there is no way for the player to decode and play the movie. (The licensing authority later did license an open source player, perhaps because they realized its unavailability gave Mr. Johansen a strong defense, perhaps because they feared an antitrust suit, or perhaps because they just got around to it.)

Mr. Johansen and his supporters claimed strenuously that DeCSS was not in fact an aid to illicit copying. In fact, they argued that CSS was not really designed to protect DVDs against illicit copying. Commercial DVD “pirates” do not need to crack the CSS encryption. Quite the contrary: they produce exact copies of the DVD, CSS encryption and all, and the buyer’s player dutifully decodes it and plays it. Mr. Johansen claimed that his goals were very different from those of the pirates.

The motivation was being able to play DVDs the way we want to. I don’t like being forced to use a specific operating system or a specific player to watch movies (or listen to music). Nor do I like being forced to watch commercials. When your DVD player tells you “This operation is not allowed” when you try to skip commercials, it becomes pretty clear that DRM really stands for Digital Restrictions Management.[4]

In Mr. Johansen’s view, CSS was simply an attempt to control consumers, an attempt which should be a valid target for legal reverse engineering. He has a point. There were indeed other ways to copy DVDs which did not require DeCSS and which gave you files of more manageable size. CSS was indeed more than a simple anticopying device. The entire scheme—the keys, the licenses, the hardware requirements—was designed to give movie studios greater control over their movies in a number of ways, some of them unrelated to copying. On the other hand, he overstated the point. One function of CSS was indeed to make it harder for the average person playing a DVD on a computer to copy the file from the DVD to her hard disk and give it to a friend. It is very easy for the average 14-year-old to take a commercial music CD, change the songs into smaller files in the MP3 format, and share them with a friend. It is not as easy to do the same thing to a DVD—not impossible, just harder—and CSS is one of the reasons why.

Mr. Johansen’s program, DeCSS, was quickly made available worldwide. Mirror sites provided copies of the program and lists of such locations were easy to find using standard search tools. One such list was provided by the online site run by a magazine called 2600: The Hacker Quarterly. The magazine features everything from pictures of pay phones from around the world to tips on how to hack into computer or telephone systems. Its publisher is one Eric Corley, who goes by the name Emmanuel Goldstein—the resistance leader in George Orwell’s 1984.

In 1999, Universal City Studios brought suit against a number of individuals for distributing DeCSS. The case was called Universal City Studios v. Reimerdes et al. Corley was among the defendants. The suit prominently included a claim that the defendants were violating the DMCA. It was in this case that the DMCA received its first major legal challenge.

Depending on the characterization of the facts, the case seems to be about very different things. It could seem a classic First Amendment fight. (“Plucky magazine publisher told copyright law forbids him from linking to other sites on the Internet!”) Or it could seem the very essence of illegal activity. (“Shadowy site which unashamedly caters to computer ‘hackers’ tries to spread access to the burglar’s tools of cyberspace!”)

Of course, most lawsuits involve conflicts over facts. Much of what lawyers do is put the same facts into different conceptual boxes. But here, merely describing what Corley does, what hackers are, or what 2600 magazine is all about involves one in a profound culture clash. The best way to capture the clash may be to quote from an early entry about Corley in Wikipedia, the remarkable online encyclopedia.

The encyclopedia first quotes the description of 2600 magazine from Judge Lewis A. Kaplan, the federal district court judge who decided the Reimerdes case.

“2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, how to write more secure ASP code, access other people’s e-mail, secure your Linux box, intercept cellular phone calls, how to put Linux on an Xbox, how to remove spyware, and break into the computer systems at Costco stores and Federal Express. One issue contains a guide to the federal criminal justice system for readers charged with computer hacking. In addition, 2600 operates a web site located at 2600.com (http://www.2600.com), which is managed primarily by Mr. Corley and has been in existence since 1995.”

The Wikipedia article then continues as follows:

While the judge’s tone is clearly disapproving, others would point out that bookstores, movies and television channels are filled with material on how to commit murder . . . and that without the efforts of the hacker community, however ill-intentioned, computer insecurity would be even more of a problem than it already is.[5]

In fact, Judge Kaplan was not entirely disapproving. He mentions articles in 2600 that cover laudable or innocuous tasks, as well as others about tasks that most readers would find objectionable and rightly think to be illegal. But the anonymous volunteer who wrote this version of Corley’s Wikipedia entry clearly saw the issue differently. Wikipedia does not portray the hacker community as universally benevolent (“however ill-intentioned”), but that community is also seen as providing a useful service rather than merely a set of how-to guides for would-be digital burglars.

To most people, pointing out vulnerabilities in computer security systems seemed, at least in 1999, like telling the world that your neighbor has forgotten to lock his door and all his possessions are there for the taking. But to the online community, it is by no means so clear. From the perspective of those who are knowledgeable in the field, there is a moral continuum. There is clearly legitimate computer security and cryptography research, which includes attempts to break into computer systems to test their defenses—that is how one finds out they are secure, after all. Then there are “hackers.” This term could be used to describe those who merely like to program. Richard Stallman, for example, the originator of the free software movement, describes himself thus. But the term could also be used for those who are interested in security or interoperability—making two systems work together. That was Mr. Johansen’s declared goal, after all. But some self-described hackers go further. They believe that exploring and disclosing the weaknesses of supposedly secure systems is intellectually fulfilling, practically important, and protected by the First Amendment. They disclaim both moral and legal responsibility for the consequences of their disclosures. (Or at least the negative consequences; they frequently take credit for the positive consequences, such as improved security.) Finally, there are “crackers,” whose interest in gaining entry to computer systems is malicious or for financial gain. At what point on this continuum does the activity become legally, or morally, unacceptable? As the Reimerdes trial went on, it became clear that the answer the DMCA gave might not be the same as the one given even by undeniably legitimate computer scientists.

A large number of legal arguments were involved in the Reimerdes case, but for our purposes here the most important ones dealt with the relationship between copyright and the First Amendment. What is that relationship?

In one obvious sense copyright actually aids free speech. By providing an incentive to create works, copyright “add[s] the fuel of interest to the fire of genius,”[6] and thus helps to create the system of decentralized creative production and distribution I described in Chapter 1. But copyright also restrains speech. At its base, it allows an individual to call upon the state to prevent someone from speaking or expressing themselves in a particular way. This may involve a simple refusal to let the speaker use some text, picture, verse, or story in their message, or it may involve a refusal to let them transform it in some way.

Neither copyright law nor the American Constitution is blind to these dangers. Copyright has a number of built-in safeguards. The most important of these is that copyright only covers “original expression”—both the ideas and facts in this book can be used by anyone without my permission. Thus, goes the theory, the speaker’s freedom of expression is never truly restrained. The only thing I am barred from is using your words, your exact plot, your photograph, your music—not your facts, your ideas, your genre, the events you describe.

That is not always enough, of course. Sometimes the problem is that the speaker cannot paraphrase around the restraints posed by copyright. He needs to use the particular text or image in question to convey his message. The ideas, the facts, or a mere paraphrase of the expression would not be enough. In cases like that copyright’s answer is “fair use.” A politician could not prevent journalists who disagree with him from quoting his autobiography in discussing his life. If an African-American author wishes to tell the story of Gone With the Wind from the slaves’ perspective, she may do so in the face of the copyright holders’ attempts to stop her. Even fair use, though, may not cover every concern about free expression. Before World War II, Alan Cranston—later a U.S. Senator—wanted to convince American readers that the version of Hitler’s Mein Kampf published in the United States was distorted. He believed it to be slanted toward American sensibilities, downplaying both anti-Semitism and German expansionism. His solution? To publish his own English translation, taken direct and uncut from the German edition. He wanted to prove, with Hitler’s own words, that the United States had a dangerously distorted version of the German leader. But this is the kind of thing copyright law forbids and it is not clear that fair use allows. (In the end he did it anyway.)[7]

For the moment though, it is enough to realize that copyright law is not immune from the First Amendment or from free speech concerns more generally. If we do not notice that most of the time, it is because the internal limitations of copyright—fair use, the idea-expression distinction, and so on—generally take care of the First Amendment issue, not because the issue was never there.

So what First Amendment issues did the DMCA present? Most obviously, the DMCA gave a new right to copyright owners. By using a few simple technological measures, they could distribute a work in a particular format and yet, because of their new intellectual property right, they could make illegal an otherwise lawful process of gaining access for the purposes of making fair use. Of course, the First Amendment allows me to make fair use factually impossible. I can do that without raising any constitutional issues by hiding my manuscript and never letting you see it or just by using unbreakable encryption on my digital products. It allows me to use existing conventional property rights to make fair use illegal. If I own the only copy of the book and it is inside my house, it would be trespass for you to enter. No First Amendment problem there. But in passing the DMCA, Congress had created a new intellectual property right inside copyright law itself, a law aimed directly at expression, that made it illegal to get access for the purpose of making fair use even when you legally bought the physical book, or the physical DVD, and now wish to quote it or parody it. Even that is not the problem. It is that Congress cannot grant the exclusive rights of copyright without simultaneously accompanying them by the limitations of fair use.[8] Regardless of what physical constraints and tangible property rights might do to limit my ability to make fair uses, Congress had now, by law, allowed a copyright owner to distribute a particular work with the exclusive rights but without some of those limitations.

Imagine that Congress had passed the following law instead of the DMCA: “Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circumvent the red dot even if, but for the dot, the use would have been fair.” That would be clearly unconstitutional. It gives copyright owners a new intellectual property right to “turn off fair use” in copyrighted works distributed to the mass market. Is the DMCA not the same thing?

This was the issue in Reimerdes. True, if I cut through the digital fence on a DVD in order to excerpt a small portion in a critical documentary, I would not be violating your copyright, but I would be violating the anticircumvention provisions. And DeCSS seemed to be a tool for doing what the DMCA forbids. By providing links to it, Mr. Corley and 2600 were “trafficking” in a technology that allows others to circumvent a technological protection measure. DeCSS could, of course, be used for purposes that did not violate copyright—to make the DVD play on a computer running Linux, for example. It enabled various noninfringing fair uses. It could also be used to aid illicit copying. But the alleged violation of the DMCA had nothing to do with that. The alleged violation of the DMCA was making the digital wire cutters available in the first place. So one First Amendment problem with the DMCA can be stated quite simply. It appeared to make it illegal to exercise at least some of the limitations and exceptions copyright law needs in order to pass First Amendment scrutiny. Or did it just make it very, very difficult to exercise those rights legally? I could, after all, make a videotape of the DVD playing on my television, and use that grainy, blurry image in my documentary criticizing the filmmaker. The DMCA would not be violated, though my movie might be painful to watch.

The other possible First Amendment problem with the DMCA was that in regulating programs such as DeCSS, the DMCA was actually regulating “speech.” The first challenge to the DMCA was that, by making tools like DeCSS illegal, the DMCA took away a constitutionally necessary escape hatch to copyright, thus making copyright law as a whole violate the First Amendment’s guarantee of freedom of speech. The second challenge was different. The problem was that the program itself was speech and the DMCA was regulating it illicitly.

The reasoning went like this. A computer program is a form of expression and communication. The source code can even be read by human beings. True, it is an abstract form of communication—like musical notation and mathematical algorithms. But those are clearly protected by the First Amendment. Congress could not make Schoenberg’s twelve-tone scale illegal or punish mathematicians for physics equations that seemed to support a theory of the universe’s origin other than the creationism that is currently so popular. True, the source code is a description of a method of doing something, and the code can, if run on a computer, produce a result—but one could argue that those attributes do not affect the First Amendment’s protection. Neither a recipe for hash brownies nor a player piano roll for the Nazi “Horst Wessel” song could constitutionally be prohibited, even though actually to make the hash brownies would be illegal, and even though the piano roll is functional (it “makes” the player piano play the tune). True, most people cannot read computer code, but speech does not need to be common or accessible to be protected. In fact, the courts have even held that the choice to communicate in a particular language is constitutionally protected in some settings.

On the other hand, software code is undeniably functional. Lots of functional articles can be said to have some expressive content—a gun, an airbag, a crash helmet, a set of burglar’s tools, a computer virus. And many actions have expressive content: a terrorist bombing, for example. Surely these could be regulated by Congress? To the defendants, DeCSS looked like a physics equation, a musical score, or a recipe. To the movie studios, DeCSS had all the First Amendment significance of a crowbar, lock pick, or, for that matter, a car bombing. The same argument was repeated over the hyperlinks that Corley and others provided to sites which carried the DeCSS program. Speech or function? To the defendants, forbidding 2600 to link to these sites was like preventing the Washington Post from describing the availability of drugs on certain blocks of 16th Street. To the movie companies, the hyperlinks were the equivalent of loading potential buyers into a van, taking them down there, and giving them enough money to make the purchase.

Which of the two First Amendment arguments is more convincing? That the DMCA is a congressionally created off-switch for fair use? Or that software code is speech and the DMCA restricts it? Like a lot of scholars, before Reimerdes went to trial, I thought that the first argument was by far the more powerful. I still do. I thought the odds of the court buying the “code is speech” argument were low. About that I was wrong, though it turned out not to matter.

A number of the reports noted that after some initial skepticism, Judge Kaplan had been impressed by the defendants’ expert witnesses, particularly those who had testified that code was speech. When the ruling came out, this impression was confirmed. Judge Kaplan agreed that code was a form of speech or expression. But celebration was premature. Having done so, he disagreed with the defendants’ claim that it could not be regulated.

Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin’s action. In an era in which the transmission of computer viruses—which, like DeCSS, are simply computer code and thus to some degree expressive—can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination of code in appropriate circumstances. The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact.[9]

Judge Kaplan is right in saying that there cannot be a bright-line rule immunizing computer code from regulation merely because it has expressive elements. The First Amendment does not protect computer viruses. But the defendants were not arguing that computer code was constitutionally inviolable, only that any law that regulated it had to be subject to First Amendment scrutiny. After all, the government makes the description of how to make a nuclear weapon classified information. That is clearly “speech,” but its regulation is also constitutional. The First Amendment is not, and never was, an absolute guarantee of freedom of speech. Instead, the question is whether the law is within the realm of “the freedom of speech” guarantee, which in turn depends on what kind of a law it is. Where does it fit in the “levels of scrutiny” that courts have constructed to discriminate between types of legislation affecting speech? Is the DMCA a “content-based” regulation, such as a law forbidding labor picketing but allowing other kinds of demonstrations? Content-based regulations are given the highest and most demanding level of scrutiny. Alternatively, is it a “content-neutral” regulation, such as a law that forbids talking—about any subject—in a library? To Judge Kaplan, the answer was clear, and grounds for sarcasm.

The reason that Congress enacted the anti-trafficking provision of the DMCA had nothing to do with suppressing particular ideas of computer programmers and everything to do with functionality—with preventing people from circumventing technological access control measures—just as laws prohibiting the possession of burglar tools have nothing to do with preventing people from expressing themselves by accumulating what to them may be attractive assortments of implements and everything to do with preventing burglaries.

I agree, though it is worth noting that the burglar tool analogy is a disputed one. Johansen claimed DeCSS was more like a screwdriver—something with both licit and illicit uses.

So the DMCA was content-neutral regulation. That means it still has to pass a fairly daunting legal threshold. It will only be upheld if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”[10] Judge Kaplan felt that the DMCA satisfied that standard. I am not so sure. Yes, the governmental interest in protecting copyright holders’ rights is important. And yes, I must disagree with some of my friends in the civil liberties world and say that the government’s interest is unrelated to the suppression of free expression. But is “the incidental restriction of First Amendment freedoms no greater than is essential to the furtherance of that interest”? In other words, could the DMCA have achieved its goals without imposing as great a limitation on the expression of people like Mr. Johansen and Mr. Corley?

Congress could have passed many laws less restrictive than the DMCA. It could have only penalized the use of programs such as DeCSS for an illicit purpose. If it wished to reach those who create the tools as well as use them, it could have required proof that the creator intended them to be used for illegal purposes. Just as we look at the government’s intention in creating the law, we could make the intent of the software writer critical for the purposes of assessing whether or not his actions are illegal. If I write a novel detailing a clever way to kill someone and you use it to carry out a real murder, the First Amendment does not allow the state to punish me. If I write a manual on how to be a hit man and sell it to you, it may. First Amendment law is generally skeptical of statutes that impose “strict liability” without a requirement of intent. But Judge Kaplan believed that the DMCA made the motives of Mr. Johansen irrelevant, except insofar as they were relevant to the narrowly tailored exceptions of the DMCA, such as encryption research. In other words, even if Mr. Johansen made DeCSS so that he and his friends could watch DVDs they purchased legally on computers running Linux, they could still be liable for breaking the DMCA.

The DMCA’s breadth goes further than its treatment of intent. The statute could have only made it illegal to provide a program yourself. But Judge Kaplan interpreted it to prohibit even linking to a site where the program is to be found. No requirement of intent. No requirement that you actually supply the infringing program. That is a pretty broad interpretation and one which he admits restricts expression. How could he conclude that restrictions this broad were “no greater than essential”? From his rhetoric, the answer is clear. Judge Kaplan believes the story of the Internet Threat I discussed in Chapter 4. He sees DeCSS as a poison. In fact, he thinks it is worse than a poison because it may spread to infect others. It is a disease, a virus. The DMCA is the stern and harsh quarantine required to control it—a digital public health measure. His reasoning is worth quoting at length.

There was a time when copyright infringement could be dealt with quite adequately by focusing on the infringing act. . . . The copyright holder . . . usually was able to trace the copies up the chain of distribution, find and prosecute the infringer, and shut off the infringement at the source. In principle, the digital world is very different. Once a decryption program like DeCSS is written, it quickly can be sent all over the world. Every recipient is capable not only of decrypting and perfectly copying plaintiffs’ copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling every recipient to do the same. . . . The process potentially is exponential rather than linear. Indeed, the difference is illustrated by comparison of two epidemiological models describing the spread of different kinds of disease. In a common source epidemic, as where members of a population contract a non-contagious disease from a poisoned well, the disease spreads only by exposure to the common source. If one eliminates the source, or closes the contaminated well, the epidemic is stopped. In a propagated outbreak epidemic, on the other hand, the disease spreads from person to person. Hence, finding the initial source of infection accomplishes little, as the disease continues to spread even if the initial source is eliminated.[11]

This is a very good point, and one that the critics of the DMCA sometimes gloss over too quickly. The structure of digital replication is indeed different from the old centralized model of copying and distribution. Instead of tracing all illicit copies back to a single infringing printing press, we face the fear that the machinery of piracy can be copied just as fast as the copies it allows us to make.

It is here that the defendants lose the battle of the metaphors. Yes, code is speech, it conveys information. But viruses are codes and they convey information too. Judge Kaplan explicitly invokes this comparison several times. Biological viruses are tools for the replication of genetic information. They subvert their hosts’ cellular programming to make copies of themselves, just as a computer virus hijacks an infected computer and causes it to send out more copies of the virus. True, DeCSS requires human intervention to download the program and use it. Yet from Judge Kaplan’s language it is evident that he sees the program not as an act of expression but as a virus spreading like wildfire. Seen this way, the individual “choices” to download or redistribute are simply the program’s method of spreading itself, like the irritation produced by the cold virus that encourages sneezes and coughs, thereby transmitting the illness to others. Just as in an epidemic, the harshest measures are called for. There is no poisoned well here, no pirate with a printing press we can shut down. Anyone is potentially an infringer. Individuals cannot be presumed to be healthy. We cannot give their immune systems, or their motives, the benefit of the doubt. Instead we must see them as potential carriers. The healthy must be quarantined as well as the sick. Facing such a danger, Judge Kaplan agrees that Congress needed to be draconian. We cannot wait for illegal copying. We must strike preemptively at the technology that might enable it. There is no place for inquiries into “intent” here; no way that we can restrict liability to those who actually provide the program. Thus, though “code is speech” and the DMCA does incidentally restrict expression, Judge Kaplan concludes that its restraints are no greater than is necessary.

There are three questions here. The first is whether Congress was right. The second is whether, in the context of the movie industry, we can see evidence of the evil it needed to combat. The third question is very different: whether the DMCA is constitutional. In my opinion, the answer to questions one and two is no, for the reasons outlined in Chapter 4’s analysis of the Internet Threat. Yes, cheaper copying can increase the rate of illicit copying, but it also lowers advertising costs and offers new business models—Netflix, downloads on demand, viral distribution of trailers, and so on. The technology helps as well as hurts. It does not help the movie industry as much as it might help the music industry, which can more easily distribute its products over the Internet. But the Internet also does not pose as much danger to movies as it does to music. The movie industry’s doomsaying aside, there is no exact movie equivalent of Napster and there is unlikely to be one in the near future.[12]

This is not just because movies are longer and harder to download than songs. It is because most people only watch a film once. Most people do not want a library of two thousand films to play again and again. Music is a repeated experience good in a way that movies simply are not, and that social fact profoundly affects the likelihood of downloading as opposed to rental. The transient song on a radio or an Internet stream is not an adequate substitute for possessing the song permanently—something which costs a lot more. Apart from kids’ movies, which can be used to induce catatonia in one’s progeny time and again, and a few classic favorites, most people do not want to own movies. Watching the film on television or renting it for a night is perfectly satisfactory. Both of these involve little hassle or cost. The content industries are fond of saying “you cannot compete with free.” But this is simply not true. Cheap and easily acquired goods of certified quality compete very well with free goods of uncertain quality whose acquisition involves some difficulty. This is one of the main reasons the movie companies were wrong in the Sony case.

Thus while Judge Kaplan’s discussion of the looming digital Black Death is nicely apocalyptic, it does not seem very accurate. How many of your friends download movies illicitly over the Internet, let alone movies that were ripped from DVDs? Yes, it can be done. But the actual descriptions of the process in the Reimerdes case smack more of bathos than terror.

Although the process is computationally intensive, plaintiffs’ expert decrypted a store-bought copy of Sleepless in Seattle in 20 to 45 minutes. . . . The decryption of a CSS-protected DVD is only the beginning of the tale, as the decrypted file is very large. . . . One solution to this problem, however, is DivX, a compression utility available on the Internet that is promoted as a means of compressing decrypted motion picture files to manageable size. . . . While the compressed sound and graphic files then must be synchronized, a tedious process that took plaintiffs’ expert between 10 and 20 hours, the task is entirely feasible. . . . At trial, defendants repeated, as if it were a mantra, the refrain that plaintiffs, as they stipulated, have no direct evidence of a specific occasion on which any person decrypted a copyrighted motion picture with DeCSS and transmitted it over the Internet. But that is unpersuasive. Plaintiffs’ expert expended very little effort to find someone in an IRC chat room who exchanged a compressed, decrypted copy of The Matrix, one of plaintiffs’ copyrighted motion pictures, for a copy of Sleepless in Seattle. While the simultaneous electronic exchange of the two movies took approximately six hours, the computers required little operator attention during the interim.

So the epidemic threat that hangs over the movie industry consists of the danger that someone will spend fifteen minutes decrypting and ten to twenty hours tediously synchronizing a movie that is then available for a speedy six-hour download?

Admittedly, someone only needs to do the synchronizing once. There are newer tools that make the task easier. And we could improve the download time. But even so, would you bother? Faced with the colossal expense and hassle of renting the same movie at Blockbuster for $3, some consumers might prefer this process, I suppose. But I would not sell my shares in movie studios quite yet. In fact, the real threat to movie studios is the large-scale criminal distribution of illicitly copied DVDs—copied bit for bit from the original. The distributors of those do not need to use programs like DeCSS. A more distant threat comes from legal recordings from television made on TiVo’s and ReplayTVs—where consumers’ actions are legal and CSS is not an issue. So far as we can tell, there is no measurable effect of illicit digital downloads on sales or rentals of DVDs. We could go through the process Judge Kaplan describes, I suppose, just as when the VCR was invented we could have taped movies from television and swapped them with our friends. But as the movie studios discovered after the Sony case, most of us would rather just rent the movie. Because something is possible does not mean it will happen.

So in my view, Congress generally overestimated the threat posed by the digital world and underestimated the benefits. In addition, the movie industry is a weak place to make the case for the necessity of the DMCA. Fine, but that is not the legal issue here. The constitutionality of the DMCA does not turn on whether the DMCA was a good idea. That is not the court’s decision to make. The question is not even whether the particular industry involved is, in reality, facing much of a threat from digital downloading. The law, after all, exists for all digital works, not just the ones at issue here. The question is whether the restriction on speech imposed by the DMCA was “no greater than is essential.” And that is a harder question.

I still disagree with Judge Kaplan. A more narrowly tailored statute could have accomplished the DMCA’s legitimate goals without impinging as greatly on expression. I think that the rhetoric of the Internet Threat blinded Judge Kaplan to some important issues and led him to overestimate the danger and thus the severity of the measures necessary to combat it. Thus, even under the “code is speech” part of the analysis, I think the DMCA fails First Amendment scrutiny. But if we are confining ourselves to the expression inherent in the software itself, I acknowledge that it is a close call.

Sadly, Judge Kaplan spent much less time on the other First Amendment argument against the DMCA—that it is unconstitutional because it gives copyright holders a new intellectual property entitlement, created by Congress under the Copyright Clause, a legal power to deprive users of a constitutionally required limitation on copyright’s exclusive rights. In my view, he also framed the argument wrongly when he did discuss it. To be fair, these problems can partly be traced to the fact that the defendants spent most of their energy on the argument that code was expression, paying less attention to everything else. As Judge Kaplan explained it, the claim was that the DMCA might have the effect of restricting an alleged fair use right of access to copyrighted material. Predictably enough, he responded that there was no such right of access. Copyright holders could always lock up the book or restrict entrance to the gallery. In any event, while fair use of DVDs might be curtailed, he argued that most movies are also available on videotape. Even if the film were only available on DVD, the prospective fair user could write down the words and quote them, or record the sound from the screen. Finally, Judge Kaplan pointed out that even if the DMCA might allow a significant erosion of fair use to develop over time, such a problem was not present here. Those making First Amendment claims are sometimes allowed by courts to show that, even if the law as it applied to them were constitutional, it would restrict the First Amendment rights of others. Judge Kaplan declined to apply that doctrine here. In effect, he said “come back when there is a problem.”

On appeal, the case was decided by a panel led by Judge Jon Newman. Here the fair use argument received more attention but the result was the same: “Come back when there is a problem.” Significantly, both courts pointed out another concern. The DMCA could effectively make copyright perpetual because even though the copyright term would expire, the legally protected encryption would continue, and tools such as DeCSS, which would have allowed access to the public domain work, would be illegal.[13] This is a major issue because it appears to violate both the First Amendment and the Copyright Clause’s requirement of a limited time. The defendants did not spend adequate time on this argument, however, and the courts again left it for later consideration.

The court of appeals saw the defendants’ argument in just the same way as Judge Kaplan had seen it: a claim that there was a fair use right of actual access to the finest version of every work in every medium, on which the DMCA put a practical limitation. Such a claim was easy to dismiss. There was no such right of guaranteed practical access. Copyright owners could restrict the practical ability to exercise fair use in many ways without the Constitution being involved. In addition, in a world where copyrighted content is frequently available in both analog and digital form, the actual effects of the DMCA might be trivial and were, in any event, constitutionally acceptable. Judge Newman repeated Judge Kaplan’s point that one could always make fair use of the work in a way the DMCA did not reach, such as by videotaping a picture of the screen.

The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.

Once the issue is framed this way, the case has been lost. I would argue that there are three baseline errors here: a focus on “affirmative rights of access” as opposed to limits on Congress’s power in handing out exclusive rights over expression without their constitutionally necessary limitations, a focus on practical effects of the provisions rather than on formal constitutional limitations on the copyright system over all classes of works, and a confusion between intellectual property rights and physical property rights that goes to the heart of the Jefferson Warning discussed in Chapter 2. The question is not whether users have a constitutionally protected right of practical access to a preferred version of a work. The question is whether it violates the First Amendment for Congress to give to copyright holders an intellectual property right to exempt their copyrighted works in some formats from fair use and other provisions that are necessary for copyright law in general to be constitutional.

Remember my earlier example. What if Congress amended Section 1201 to say “Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circumvent the red dot even if, but for the dot, the use would have been fair”? This statute, I think, is clearly unconstitutional. It would be no answer to say that some owners will not use the red dot, and even for those that do, there will be older, dotless versions still available. It is irrelevant that I might be able to copy down the crucial lines of the book over your shoulder while you read it and thus claim that I, personally, had not circumvented the dot. The unconstitutionality of the statute does not turn on whether the dots might fall off because of bad adhesive, or whether there are many secondhand bookstores in the area, in which undotted volumes can be found. Even if the red dot rule were only to be applied to hardback books, or graphic novels, or cassette tapes, it would still be unconstitutional. Nor do we have to wait until the entire marketplace is dominated by red-dotted products before considering the issue. It is no answer to say that even before the red dot rule, copyright holders could always have hidden their works, or locked them in safes, or even negotiated individual contracts with the purchasers that have the effect of limiting fair use. That way of framing it just misunderstands the issue on a fundamental level. The claim is not about the happenstance of practical access or the way that a copyright holder can use physical control of an object or existing tangible property rights to undercut fair use.

The point is that Congress violates the First Amendment when, with respect to any work, it gives me an intellectual property right to prohibit copying and distribution of an expressive work sold in the marketplace and an additional legal power to opt out of the limitations contained in Section 107 over that work. The bundle of rights conveyed by the DMCA does exactly that. It is not the DMCA alone that we must analyze. The question is whether Congress can give the exclusive rights contained in Section 106 of the Copyright Act over a particular class of works (say digital works), if it also gives a new right to prohibit citizens from gaining access to those works for the purposes of making a fair use. If Judge Kaplan and Judge Newman are correct, then the DMCA gives an entirely new intellectual property right (technically, a legal power) to the copyright holders to do exactly that. To put it the other way around, the DMCA subtracts from the citizen’s bundle of entitlements under federal copyright law, the right (technically, lawyers would call it a privilege) to gain access to a work legally in his possession for the purpose of making a fair use. It is that rule change that is unconstitutional, I would argue, and the way Judge Kaplan and Judge Newman frame that issue makes them miss the point.

Framing is important. The confusions that I have talked about in this book all make an appearance. It starts with the whole controversy being framed by the Internet Threat story line from Chapter 4. Because Judge Kaplan is convinced that every citizen is now a potential infringer, a potentially infectious virus carrier, he is ill disposed to listen to claims about fair use. Civil liberties claims do not do very well in epidemics. It is only right for him to defer to Congress’s perception of the problem and the solution, of course. But he buys so deeply into the magnitude of the threat, the extent of the potential piracy pandemic, that it is very hard for him to take seriously the idea that even here there is a legitimate constitutional fair use claim.

The Sony Axiom from Chapter 4 is also ignored, or at least undervalued. As I pointed out there, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders. The DMCA continues that logic; its drafters concluded that the right to get access to digital works for purposes of making a fair use must be taken from the bundle of rights possessed by citizens, while the right to enjoin both access and the technologies of access is added to those of copyright holders. Never mind the correctness of such a conclusion as a matter of policy. Are there constitutional limitations on Congress taking such an action? Kaplan and Newman in effect tell us, “not yet.”

More important than the perception of the threat is the understanding of what intellectual property is all about. In Chapter 2, Jefferson warned us that intellectual property rights are not like physical property rights. In analyzing the DMCA, where do we turn for analogies? To physical property, violence, and theft. The cases analyzing the DMCA are full of analogies to trespass, to breaking and entering, to burglars’ tools, and to safecrackers. Private property carries a lot of baggage with it, but we know it well—it is the place we naturally turn for insight. Even I, in order to point out some of the difficulties with those analogies, had to turn to farmers and barbed wire and public rights-of-way along highways. There is nothing wrong with analogies. They help us understand things that are new by comparing them to things we think we understand better. Analogies are only bad when they ignore the key difference between the two things being analyzed. That is what happens here.

Jefferson reminded us that intellectual property rights are clearly artifacts of state creation, monopolies whose internal limitations in scope, duration, and so on are just as important as the rights themselves. Jefferson doubts whether even property rights over land can be understood as natural and absolute—copyrights and patents, which cover subject matter that can be infinitely reproduced without diminishing its substance, clearly cannot. They frequently involve a claim to control purchasers’ behavior with respect to some aspect of an artifact after it has been sold to them in the marketplace, making simpleminded analogies to “breaking and entering” inappropriate—the extent of the property in question is precisely the issue in dispute. (When Johansen was tried in Norway under the national computer crime law, the court laconically observed that he had bought the DVDs, and one cannot break into one’s own property—effectively turning the analogy on its head.) Jefferson starts from the baseline that monopoly is the exception and freedom is the rule—any limitations on that freedom have to be justified. That is why he always discusses the right and the limitations on the right as an inseparable pair. One cannot discuss them in isolation.

Kaplan and Newman are fine, thoughtful judges. They do not altogether ignore those points. But look how the analysis is set up. At several points in the discussion, there seems to be the assumption that copyright owners have entitlements to total control as of right and that fair use is a mere lucky loophole which, because it can be negated by the happenstance of whether one can get physical access, can hardly have major First Amendment status. They keep pointing out that physical control and tangible property rights frequently allow copyright holders to make fair use impracticable. “And so what?” Jefferson might have responded. This is a classic non sequitur. The question is whether the Congress has the power to add a new right of access-denial to the intellectual property monopoly it is constructing, undermining—as to some works and some fair uses—the balance that the law sets up. The citizen is not pleading for a new right of access, trumping all physical restraint and tangible property rights. The citizen is claiming that Congress has no power to give exclusive rights to restrain copying of digital content while simultaneously taking away the citizen’s existing right to get access to that content for the purposes of fair use—at least in those cases where access is physically possible and violates no other property right, real or intellectual.

The Constitution does not require the United States to break into President Nixon’s desk to get me his tapes, buy me a tape recorder, or give me a right to 18.5 minutes on the broadcast airwaves to play them. But if I can get access to the tapes legally, it does forbid the government from giving President Nixon the power to put a red dot on those tapes and thus claim an intellectual property right to stop me playing them on TV or digitizing them to make the sounds clearer. The restraints imposed by physical happenstance and tangible property rights are different from those imposed by copyright—a congressionally created monopoly over expression. We cannot assume because one is constitutionally acceptable that the others are too. Jefferson understood that, and his analysis can help us even in a constitutional conflict over a technology he could hardly have dreamt of. (Though perhaps with Jefferson, this is a bad bet.)

The same point comes up in a different way when the court disconnects the fair use discussion from the exclusive rights discussion. The question is not “Do I have a constitutionally protected right of physical access to a preferred version of a movie, so as to make my task easy?” That gets the court caught up in questions of when a majority of movies will only be available on DVD, or how poor a substitute the analog version would be, or how many fair uses will require actually cutting a digital fence. But all of these inquiries miss the point. The question is “Can Congress hand out the exclusive rights of copyright over digital works if it does not accompany those rights with the suite of limitations that the court has repeatedly said “saves” copyright from violating the First Amendment?” The proportion of digital works to the total number of works produced in other formats is irrelevant. As to these works, the rule is unconstitutional. But what about the number or proportion of types of fair uses affected? That is more relevant but still not dispositive in the way Kaplan and Newman imagined. True, not every trivial statutory modification of fair use makes copyright unconstitutional. But this is not a trivial modification: over an entire class of works, copyright owners are given a legal power to deprive users of their privilege to gain otherwise lawful access for the purposes of fair use. If you give the digital filmmaker the exclusive rights of copyright but forbid the film professor from going through the otherwise lawful process of parodying or quoting, that rule is unconstitutional, no matter how many other fair uses are unaffected. If the copyright law were amended to forbid journalists playing, on a Friday, excerpts of legally acquired red-dotted tapes made by presidents whose last name begins with N, it would still be unconstitutional.

The legal implementation of this conclusion would be simple. It would be unconstitutional to punish an individual for gaining access in order to make a fair use. However, if they cut down the digital fence to make illicit copies, both the cutting and the copying would be illegal. But what about the prohibition of trafficking in digital wire cutters, technologies such as DeCSS? There the constitutional question is harder. I would argue that the First Amendment requires an interpretation of the antitrafficking provisions that comes closer to the ruling in the Sony case. If Mr. Johansen did indeed make DeCSS to play DVDs on his Linux computer, and if that were indeed a substantial noninfringing use, then it cannot be illegal for him to develop the technology. But I accept that this is a harder line to draw constitutionally. About my first conclusion, though, I think the argument is both strong and clear.

Ironically, there is some support for my claim and it comes from an even higher, if not uniformly more thoughtful, set of judges than Newman and Kaplan. In the depressing case of Eldred v. Ashcroft, the Supreme Court upheld retrospective copyright term extensions against a variety of constitutional challenges. (Full disclosure: I assisted in the preparation of an amicus curiae brief in the case.) One of those challenges was based on the First Amendment. The fairly reasonable claim was that Congress could not retroactively lock up an entire twenty-year swathe of culture that had already been produced. Such a law would be all restraint of expression, performance, republication, adaption, and so on, with no incentive benefits. The Court was unconvinced. But it did say:

To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D.C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” . . . But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.[14]

The DMCA, of course, does exactly this. As to digital works it alters the “traditional contours of copyright protection” in a way that affects “copyright’s built-in free speech safeguards.” That is what the Farmers’ Tale was all about. Perhaps one day, in a case not involving a Norwegian teenager, a hacker magazine run by a long-haired editor with an Orwellian nom de plume, and an obscure technology that is accused of posing apocalyptic threats to the American film industry, that point will come out more clearly.

But the issue of speech regulation is only half of the story. Intellectual property rights over digital technologies affect not only speech, but the framework of competition and markets as well, as the next example makes clear.

The Apple of Forbidden Knowledge:
The DMCA and Competition

You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Californian Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA and other laws.”[15]

What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it. So why all the outrage? It turns out that like the story of DeCSS, this little controversy has a lot to teach us about the landscape of intellectual property disputes, about the mental topography of the high-tech economy. But where the DeCSS case was a war of metaphors around the boundaries of freedom of expression, the iPod story is about ways in which intellectual property marks the limits of competition.

Apple iPods can be used to store all kinds of material, from word processing documents to MP3 files. If you want to use these popular digital music players to download copy-protected music, though, you have only one source: Apple’s iTunes service, which offers songs at 99 cents a pop in the United States, 79 pence in the United Kingdom. If you try to download copy-protected material from any other service, the iPod will refuse to play it. Or at least, that had been the case until Real managed to make their Harmony service compatible.

Real’s actions meant that consumers had two sources of copy-protected music for their iPods. Presumably all the virtues of competition, including improved variety and lowered prices, would follow. The iPod owners would be happy. But Apple was not. The first lesson of the story is how strangely people use the metaphors of tangible property in new-economy disputes. How exactly had Real “broken into” the iPod? It had not broken into my iPod, which is after all my iPod. If I want to use Real’s service to download music to my own device, where’s the breaking and entering?

What Real had done was make the iPod “interoperable” with another format. If Boyle’s word processing program can convert Microsoft Word files into Boyle’s format, allowing Word users to switch programs, am I “breaking into Word”? Well, Microsoft might think so, but most of us do not. So leaving aside the legal claim for a moment, where is the ethical foul?

Apple was saying (and apparently believed) that Real had broken into something different from my iPod or your iPod. They had broken into the idea of an iPod. (I imagine a small, platonic white rectangle, presumably imbued with the spirit of Steve Jobs.) Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, does figuring out how things work, in order to compete with the original manufacturer, count as breaking and entering? In the strange netherworld between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt.” It is true manufacturers want to make lots of money and would rather not have competitors. Bob Young of Red Hat claims “every business person wakes up in the morning and says ‘how can I become a monopolist?’ ” Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn’t your iPod, it’s Apple’s iPod.

Yet even if they believe this, we don’t have to agree. In the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. To say this is somehow immoral seems laughable. Is the conclusion changed when the information about compatibility is inscribed in binary code and silicon circuits, rather than the molded plastic of a razor cartridge? What if ensuring the “fit” between the two products is not a matter of making sure the new blades snugly connect to the razor but of making sure the software embedded in my generic product sends the right code to the original product in order to be recognized? Our moral intuitions are a little less confident here. All kinds of bad policy can flourish in that area of moral uncertainty.

This leads us to the law. Surely Apple’s suggestion that the DMCA might prohibit what Real had done is as baseless as their moral argument? In the United States, the answer is “probably,” at least if the courts continue in the direction they are currently taking, but it is a closer call than you would think. Internationally, the answer is even less certain. That is where the iPod war provides its second new-economy lesson. Think for a moment about the way that the law shapes the business choices in this dispute.

In a competitive market, Apple would choose whether to make the iPod an open platform, able to work with everyone’s music service, or to try to keep it closed, hoping to extract more money by using consumers’ loyalty to the hardware to drive them to the tied music service. If they attempted to keep it closed, competitors would try to make compatible products, acting like the manufacturers of generic razor blades or printer cartridges.

The war would be fought out on the hardware (and software) level, with the manufacturer of the platform constantly seeking to make the competing products incompatible, to bad-mouth their quality, and to use fear, uncertainty, and doubt to stop consumers from switching. (Apple’s actual words were: “When we update our iPod software from time to time, it is highly likely that Real’s Harmony technology will cease to work with current and future iPods.”) Meanwhile the competitors would race to untangle the knots as fast as the platform manufacturer could tie them. If the consumers got irritated enough they could give up their sunk costs and switch to another product altogether.

All of this seems fine, even if it represents the kind of socially wasteful arms race that led critics of capitalism to prophesy its inevitable doom. Competition is good and competition will often require interoperability. But what do we mean by competition? Is it competition if I assassinate your employees or poison the food in your restaurant? If I trespass on your land in order to sell a competing product? If I break into your safe to steal your trade secrets, use my monopoly position in the market to impose resale price agreements, or violate your patent? It is the law that draws the line between competition and theft, between virtuous competitive imitation and illicit “piracy.”

Sometimes we need to give innovators property rights that allow them to prevent second-comers from free riding on their efforts. We have to do so because it is necessary to encourage future innovation. On the other hand, sometimes we not only allow the second-comer to free ride, we positively encourage it, believing that this is an integral part of competition and that there are adequate incentives to encourage innovation without the state stepping in. Intellectual property policy, indeed a large part of the policy behind all property rights, is about drawing the line between the two situations. Too far in one direction and innovation suffers because potential investors realize good ideas will immediately be copied. Too far in the other direction and monopolies hurt both competition and future innovation.

Imagine you are the first person to invest in getting the public to eat burritos for breakfast, or to place a petrol station at a certain crossroads, or to clip papers together with a folded bit of wire. In each case we give you some property rights. The fast-food vendor may own a trademarked phrase or jingle that the public learns to associate with his product. Since the patent office issued a patent for the sealed and crimped “peanut butter and jelly” sandwich I described at the beginning of the book, even a patent is not out of the question if your disgusting concoction is sufficiently novel and nonobvious. But we should not allow you to have a patent over all burritos, or burritos for breakfast, still less over the idea of fast food. As for the paper clip maker, there might be a trademark over the particular paper clip, but the idea of folding wire to secure paper stays in the public domain. The owner of the petrol station gets physical ownership of the land, but cannot stop a second-comer from setting up shop across the road, even if the first-comer’s labor, capital, and effort proved that the location is a good one. We positively encourage follow-on imitation in those cases.

Now how about the case in point? What does Apple get in the way of property rights? Think back to my description of the intellectual property system in Chapter 1. They can get patents over those aspects of the iPod—both hardware and software—that are sufficiently innovative. Patents are what we use to protect inventions. They also get a copyright over the various pieces of software involved. That protects them only against someone who copies their code, not someone who writes new software to do the same thing. Copyrights are what we use to protect original expression. They get rights under trademark law over the name and perhaps parts of the design of the product—maybe the distinctive look of the iPod—though that is a bit more complex. All of these rights, plus being the first to break into the market in a big way, the brilliance of the design, and the tight integration between the hardware and the service, produce a formidable competitive advantage. The iPod is a very good product.

Now if a competitor infringes any of Apple’s rights, for example by making a literal copy of the code, using their trademark in a way the law does not allow, or infringing on one of their patents, then Apple can shut them down and extract hefty damages. Quite right, too. But should they be able to prevent someone from making an interoperable product, provided they do not violate any of these existing rights in the process? Laws like the DMCA make that question more complicated.

Nowadays, there is software in many, many more products than you would imagine. Your watch, your phone, your printer, your thermostat, your garage door opener, your refrigerator, your microwave, your television—the odds are that if you bought them in the last ten years, they have some software component. In the 1970s the courts and Congress had concluded that software could be copyrighted as original expression, like a song or a novel, as well as being patented when it was novel, nonobvious, and useful. Frequently, different aspects of the same program will be covered by copyright and by patent. But software is a machine made of words, the machine of the digital age. That fact already causes some problems for our competition policy. Will the exceptions and limitations designed to deal with a copyright over a novel work adequately when they are applied to Microsoft Windows? That issue was already unclear. With the DMCA, we have added another crucial problem. Where there is copyrighted software there can be digital fences around it. If the copyright owner can forbid people to cut these fences to gain access to the software, then it can effectively enlarge its monopoly, capture tied services, and prohibit generic competition.

It was just this line of thought that led some other companies to do more than merely make threatening noises about the DMCA. Lexmark makes printers. But it also makes lots of money off the replacement ink or toner cartridges for those printers. In some cases, in fact, that is where printer companies make the majority of their profits. As a result, they are not exactly keen on generic replacements. Chamberlain makes garage door opener systems. But they also sell replacements for the controllers—the little devices that you use to trigger the door. Lawyers from both of those firms looked at the DMCA and saw a chance to do something most companies would love to do; to make generic competition illegal. Lexmark designed their printer program so that it would not accept a toner cartridge unless it received the correct “checksum” or validation number. So far, this looks no different from the razor manufacturer trying to make it difficult to manufacture a compatible replacement blade. Generic competitors now had to embed chips in their printer cartridges which would produce the correct code, otherwise they would not work in Lexmark printers.

Static Control Components is a North Carolina company that manufactures chips whose main function is to send the correct code to the printer program. With this chip implanted in them, generic cartridges would work in Lexmark printers. Lexmark’s response could have been to change their program, rendering the chip obsolete, just as Apple could change the iTunes software to lock out Real Music’s Rhapsody. Doing so would have been quite within their rights. Indeed it is a standard part of the interoperability wars. Instead, Lexmark sued Static Controls, claiming, among other things, a violation of the DMCA.[16] Like Apple in the press release I quoted earlier, Lexmark clearly saw this as a kind of digital breaking and entering. This was their printer, their printer program, their market for replacement cartridges. Static was just helping a bunch of cheats camouflage their generic cartridges as authentic Lexmark cartridges. Translated into the legal language of the DMCA the claim is a little different, but still recognizable. Static was “trafficking” in a device that allowed the “circumvention of a technical protection measure” used to prevent “access to a copyrighted work”—namely the computer program inside the printer. That is behavior that the DMCA forbids.

The garage door company, Chamberlain—who also claimed to be concerned about the security of their garage doors—made a similar argument. In order to get the garage door to open, the generic replacement opener had to provide the right code to the program in the actual motor system. That program is copyrighted. The code controls “access” to it. Suddenly, the manufacturers of generic printer cartridges and garage door openers start to look rather like Jon Johansen.

Surely the courts did not accept this argument? Bizarrely enough, some of them did—at least at first. But perhaps it was not so bizarre. The DMCA was indeed a radical new law. It did shift the boundaries of power between intellectual property owners and others. And intellectual property rights are always about restraining competition, defining what is legitimate and what is not—that is what they do. There was a respectable argument that these devices did in fact violate the DMCA. In fact, it was respectable enough to convince a federal judge. The district court judge in the Lexmark case concluded that Lexmark was likely to win on both the DMCA claim and on a more traditional copyright claim and issued an injunction against Static Control. In Skylink, the case involving garage door openers, by contrast, the district court held that the universal garage door opener did not violate the DMCA. Both cases were appealed and both appeals courts sided with the generic manufacturers, saying that the DMCA did not prohibit this kind of access—merely making a computer program work the way it was supposed to.

The U.S. Court of Appeals for the Federal Circuit (CAFC) heard the Skylink appeal. In a remarkably far-reaching decision, the court effectively took many of the positions that Mr. Corley’s lawyers had argued for in the DeCSS case, but they did so not to protect speech, but to protect competition. In fact, they implied that taking Chamberlain’s side in the case would silently overrule the antitrust statutes. They also interpreted the new right created by the DMCA so as to add an implicit limitation. In their construction, merely gaining access is not illegal; only gaining access for the purpose of violating the copyright holders’ rights violates the statute. The Reimerdes court had been willing to accept that the new access right allows a copyright holder to prohibit “fair uses as well as foul.” When Chamberlain made the same argument as to their garage door opener program, the CAFC was incredulous.

Such an entitlement [as the one Chamberlain claims] would go far beyond the idea that the DMCA allows copyright owner to prohibit “fair uses . . . as well as foul.” Reimerdes, 111 F. Supp. 2d at 304. Chamberlain’s proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use. It would, therefore, allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work—or even selected copies of that copyrighted work.[17]

There are multiple ironies here. The CAFC rarely meets an intellectual property right it does not like. It has presided over a twenty-year expansion of American patent law that many scholars find indefensible. But when (for dubious jurisdictional reasons) it sorties beyond its traditional ambit of patent law, it is stunned by the potential expansiveness of the DMCA. Then there is the comparison with the Reimerdes case. How interesting that the First Amendment and concerns about free expression have comparatively little bite when applied to the DMCA, but antitrust and concerns about competition require that we curtail it. After all, the heart of Mr. Johansen’s argument was that he had to write the DeCSS program in order to play his own DVDs on his own computer—to get access to his own DVDs, just as the purchaser of a replacement garage door control is getting access to the program that operates his own garage door. Indeed, Mr. Johansen’s criticism of CSS was that it allowed the movie companies, “through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work.” Mr. Corley echoed those claims.

Of course, the situations are not identical. The key limitation in Skylink is that the court saw no threat of “foul use.” The Reimerdes court could see little else. On the other hand, the rulings are not easily reconciled. The Skylink court cannot imagine that Congress would want to give the copyright holder a new “property” right to prevent access unconnected to any underlying copyright violation.

As we have seen, Congress chose to create new causes of action for circumvention and for trafficking in circumvention devices. Congress did not choose to create new property rights. . . . Were we to interpret Congress’s words in a way that eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized.

Yet, arguably, that is exactly what the Reimerdes decision does, precisely because it focuses on enabling access alone, not access for the purpose of violating one of the rights of the copyright holder. The Reimerdes court saw a violation of the law just in cutting the wire or making a wire cutter. The Skylink court focused on whether the person cutting the wire was going to trespass once the cutting was done. In effect, the two courts disagree on which of the options offered to the legislature in the Farmers’ Tale was actually enacted by Congress. Which court is correct? The Skylink decision strikes me as sensible. It also makes the statute constitutionally much more defensible—something that the Skylink court does not consider. But in the process, it has to rewrite the DMCA substantially. One should not presume that it will be this interpretation that will triumph.

Summing Up: Exaggerations, Half-Truths, and Bipolar Disorders in Technology Policy

Let me return to the question with which I began the chapter. For many critics of contemporary intellectual property law, the DMCA is the very embodiment of all that is wrong. (I still cherish a friend’s account of British protesters outside the American Embassy in London singing “D-M-C-A” to the tune of the Village People’s “YMCA” and holding up signs calling for the law’s repeal—to the great confusion of the diplomatic personnel.) The critics conjure up a digital apocalypse—a world of perfect control achieved through legally backed digital fences, in which both speech and competition suffer, and where citizens lose privacy, the privilege of fair use, and the right to criticize popular culture rather than simply consume it. In their view, the legal disaster is only exacerbated by bumbling judges who do not understand the technology and who are easily fooled by the doom-laden rhetoric of the content companies. The DMCA’s supporters, on the other hand, think criticisms of the DMCA are overblown, that the dark tales of digital control are either paranoid delusions or tendentious exaggerations, and that far from being excessive, the DMCA’s provisions are not sufficient to control an epidemic of illicit copying. More draconian intervention is needed. As for fair use, as I pointed out before, many of the DMCA’s supporters do not think fair use is that important economically or culturally speaking. At best it is a “loophole” that copyright owners should have the right to close; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state.

Who is right? Obviously, I disagree profoundly with the DMCA’s supporters. I wrote this book partly to explain—using Jefferson and Macaulay and the Sony case—what was wrong with their logic. It would be both convenient and predictable for me to claim that the DMCA is the intellectual property incarnation of the Antichrist. But it would not be true. In fact, I would not even put the DMCA in the top three of bad intellectual property initiatives worldwide. And many of the fears conjured up about it are indeed overblown.

Of course, the critics have a point. The DMCA is a very badly drafted law. As I have tried to show here, its key provisions were probably unnecessary and are, in my view, unconstitutional. If coupled with a number of other legal “innovations” favored by the content industry, the DMCA could play a very destructive role. In general, in fact, the Farmers’ Tale is fairly accurate in describing both the origins of and the threats posed by the DMCA. Yet the single largest of those threats—the idea that the DMCA could be used to fence off large portions of the public domain and to make the fair use provisions of the Copyright Act essentially irrelevant—is still largely a threat rather than a reality. In some cases, fair use rights are curtailed. But for most citizens and for the majority of media, the DMCA has had relatively little effect. Digital rights management (DRM) certainly exists; indeed it is all around us. You can see that every time you try to play a DVD bought in another part of the world, open an Adobe eBook, or copy a song you have downloaded from iTunes. But so far, the world of legally backed digital rights management has not brought about the worst of the dystopian consequences that some people, including me, feared might result.

In many cases, citizens simply reject digital rights management. They will not buy products that use it. Attempts to introduce it into music CDs, for example, have been a resounding failure. In other cases, DRM has not been used in ways that the critics feared. There are genuine scandals, of course—cryptography research has been chilled, the DMCA has been turned to anticompetitive ends, and so on. It is also troubling to see federal judges issuing injunctions not only against banned material but also against those who link to the banned material. Somehow the blithe reassurance that this is consistent with the First Amendment fails to comfort one. But many of the evils prophesied for the DMCA remain as just that: prophecies.

There are also entries on the positive side of the ledger. The “safe-harbors” that the DMCA gave Internet service providers and search services have been a vital and positive force in the development of the Internet. It may even be true that in some cases, such as iTunes, the DMCA did what its backers claimed it would—encourage new provision of digital content by reassuring the record companies that they could put their music online surrounded by legally backed digital rights management. (Notably, however, the trend is now going the other way. Companies are coming to realize that many consumers prefer, and will pay more for, unprotected MP3 files.)

Of course, depending on your view of the music industry, that might seem like a mixed blessing. One might also wonder if the same consumer benefits might have been produced with a much less restrictive law. But with the exception of a few important areas—such as cryptography research, where its effects are reported to be severe—I would have to say that the criticisms focus too much on the DMCA, to the exclusion of the rest of the intellectual property landscape. Yes, the DMCA offers enormous potential for abuse, particularly in conjunction with some other developments in intellectual property that I will discuss later, but much of the abuse has not yet happened. Yet even if it never did happen, the DMCA has important lessons to teach us.

In this section I have tried to show how legal rules—particularly intellectual property rules—define the boundaries of legitimate competition. We used to assume that this was principally the function of patent and trademark law, less so of copyright. Of course, copyright would affect competition in publishing and in the TV and movie industries, but it hardly seemed central to competition policy in general. But once courts and legislatures accepted that software is copyrightable, that assessment changed. The levers and cogs of the machines of the modern economy are forged out of ones and zeros instead of steel and brass. In that situation, copyright is central to the competition policy of a high-tech economy.

As the Apple case shows, our moral intuitions about competition are going to be cloudier in the world of digital content and cyberspace. The same is true of the law. Even in the material world it can be hard to draw the line between the legitimate and ruthless pursuit of commercial advantage and various forms of unfair competition, antitrust violations, and so on. But in the immaterial world, the boundaries are even harder to draw. Is this the digital equivalent of trespass or legitimate passage on a public road that runs through your property? As I pointed out earlier, the constant analogies to physical property are likely to conceal as much as they reveal. Is this virtuous competitive imitation or illicit copying? We have strong, and by no means coherent, moral and legal intuitions about the answers to such questions. And our legal structure often gives us the raw material to make a very good case for both sides of the argument.

Into this already troubled situation, with a set of rules designed for original expression in novels and poems being applied to machines made of computer code, we add the DMCA and its new rights of uncertain extent. Copyright had a well-developed set of exceptions to deal with anticompetitive behavior. Where the existing exceptions did not function, courts tended to turn to fair use as the universal method for patching the system up—the duct tape of the copyright system. Without an evolving idea of fair use, copyright would overshoot its bounds as it was applied to new technologies and new economic conditions. Indeed that was the point of the Sony Axiom. The DMCA threw this system into disarray, into a war of competing metaphors.

The Skylink court sees monopolists being handed carte blanche to abolish the restraints on their monopolies. Competition policy demands that we construe the DMCA narrowly. The Reimerdes court sees a virus masquerading as speech, a digital pandemic that must be stopped at all costs by a draconian program of electronic public health. Each proceeds to construe the statute around the reality they have created. It is by no means certain which metaphor will win the day, still less which resolution will triumph in other countries that have passed versions of the DMCA. International attitudes toward speech, competition, and the necessary exceptions in a copyright system vary widely. Yet backed by the story of the Internet Threat, the content companies are already saying that we need to go further both nationally and internationally—introducing more technology mandates, requiring computers to have hardware that will only play approved copyrighted versions, allowing content companies to hack into private computers in search of material they think is theirs, and so on. Remember the suggestion from the beginning of the chapter, that all cars be assumed to be getaway vehicles for the felonious filchers of vegetables, and thus that they should be fitted with radio beacons, have the size of their cargo space reduced, and so on? The Farmers’ Tale continues to evolve.

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Chapter 5: Further Reading

This chapter focuses primarily on the Digital Millennium Copyright Act (“DMCA”), one of the most controversial recent pieces of intellectual property legislation and the subject of extensive scholarship and commentary.

The DMCA and DRM

Once again Jessica Litman’s Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001) is an indispensable introduction. David Nimmer offered one of the early, and prescient, analyses of the conceptual problems in the statute. David Nimmer, “A Riff on Fair Use in the Digital Millennium Copyright Act,” University of Pennsylvania Law Review 148 (2000): 673–742. His anthology, Copyright: Sacred Text, Technology, and the DMCA (The Hague: Kluwer Law International, 2003), is also worthy reading for those who wish to pursue the legal issues further. Tarleton Gillespie’s book Wired Shut: Copyright and the Shape of Digital Culture (Cambridge, Mass.: MIT Press, 2007), is an accessible but thorough introduction to the economic, political, and cultural consequences of so-called “digital rights management” or DRM. Legal scholars have been assiduous in pointing out the problems that legally backed DRM brings to science, culture, policy, and economic competition. Pamela Samuelson’s “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised,” Berkeley Technology Law Journal 14 (1999): 519–566, is an early critique that proved to be particularly accurate in its predictions. Jerome Reichman, Graeme Dinwoodie, and Pamela Samuelson, “A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works,” Berkeley Technology Law Journal 22 (2007): 981–1060, provides a fascinating recent proposal for a method to solve some of those problems. Dan Burk’s “Anticircumvention Misuse,” UCLA Law Review 50 (2003): 1095–1140, offers a similar piece of conceptual judo, looking at the way in which copyright’s traditional concerns with anticompetitive and predatory misuse of intellectual property rights could be turned on the new legally backed digital fences of cyberspace. Julie Cohen sets the debate in the wider perspective of political theory in a way that has been influential on my own thinking. In “Lochner in Cyberspace: The New Economic Orthodoxy of ‘Rights Management,’ ” Michigan Law Review 97 (1998): 462–563, and her subsequent work, she describes the ways in which digital rights management presents fascinating echoes of the ideology of socially untrammeled property rights that dominated the first twenty years of the twentieth century in the United States and was eventually countered with the ideals of the New Deal. Finally, Jane Ginsburg, “Copyright and Control over New Technologies of Dissemination,” Columbia Law Review 101 (2001): 1613–1647, provides a more positive account, arguing that on balance—given the dangers of illicit digital copying—the DMCA’s benefits outweigh its costs.

The DMCA and Freedom of Expression

Those who are interested in the tensions between copyright law and free expression are the beneficiaries of an explosion of scholarship. I cannot begin to cite it all here. Melville Nimmer’s article from 1970, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?” UCLA Law Review 17 (1970): 1180–1204, is a required starting place though its full impact was not to be felt for some time. Lawrence Lessig, “Copyright’s First Amendment,” UCLA Law Review 48 (2001): 1057–1074, provides a lovely reflection of the impact of Nimmer’s arguments more than 30 years on. Neil Netanel’s book Copyright’s Paradox (Oxford: Oxford University Press, 2008), is the single most comprehensive work in the field and a fascinating read. Netanel’s arguments, and those of Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354–446, and Jed Rubenfeld, “The Freedom of Imagination: Copyright’s Constitutionality,” Yale Law Journal 112 (2002): 1–60, have been influential on my own thinking in many areas. Bernt Hugenholtz has demonstrated that the concern about a tension between copyright law and freedom of expression is by no means limited to the United States. P. Bernt Hugenholtz, “Copyright and Freedom of Expression in Europe” in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Information Society, ed. Rochelle Dreyfuss, Diane Zimmerman, and Harry First (Oxford: Oxford University Press, 2001), at 341. (This entire volume is superb, it should be noted.) L. Ray Patterson—an inspiration to the current generation of copyright scholars—summed up the intellectual current well when he compared the DMCA to the methods of censorship imposed by the seventeenth century Licensing Act. L. Ray Patterson, “The DMCA: A Modern Version of the Licensing Act of 1662,” Journal of Intellectual Property Law 10 (2002): 33–58.

Last, but by no means least, is the new book by my brilliant colleagues, David Lange and H. Jefferson Powell: No Law: Intellectual Property in the Image of an Absolute First Amendment (Stanford, Calif.: Stanford University Press, forthcoming 2008). No Law offers a fascinating thought experiment: what would a First Amendment jurisprudence look like that took seriously the premise that “no law” is allowed to restrict ‘the freedom of speech’ protected by the First Amendment and then turned its eyes on copyright? It is the answer to the question “and what exactly does ‘the freedom of speech’ permit?” that is most intriguing. Interestingly, though Lange and Powell find many copyright doctrines problematic, they are inclined to view the DMCA more charitably. I disagree for the reasons given in this chapter.

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Chapter 6:

I Got a Mashup

So far, I have talked about the root ideas of intellectual property. I have talked about its history, about the way it influences and is influenced by technology. I have talked about its effects on free speech and on competition. Until now, however, I have not described the way that it actually affects culture. This chapter aims to rectify the omission, looking at the way copyright law handles one specific form of cultural creation—music. It turns out that some of the problems identified in Chapters 4 and 5 are not simply the result of a mismatch between old law and new technology, or the difficulties posed in applying copyright to software, to machines made of words. The same issues appear at the heart of a much older cultural tradition.

This is the story of a song and of that song’s history. But it is also a story about property and race and art, about the way copyright law has shaped, encouraged, and prohibited music over the last hundred years, about the lines it draws, the boundaries it sets, and the art it forbids.

Music is hard for copyright law to handle. If one had to represent the image of creativity around which copyright law and patent law, respectively, are built, patent law’s model of creativity would be a pyramid and copyright law’s a fountain, or even an explosion.

In patent law, the assumption is that technological development converges. Two engineers from two different countries tend to produce similar ways of catching mice or harnessing the power of steam. There are a limited number of good ways of accomplishing a technical task. In addition, technological progress is assumed to be incremental. Each development builds on the ones behind it. Based on this image, patent law makes a series of decisions about what gets covered by property rights, for how long, how to handle “subsequent improvements,” and so on. Patent rights last for a short time, not only to lower costs to consumers, but because we want to build on the technology inventors have created as soon as possible, without getting their permission. Even during the patent term, subsequent “improvers” get their own rights and can bargain with the original patent holder to share the profits.

Copyright’s assumptions are different. Copyright began with texts, with creative expression. Here the assumption is (generally) that there are infinite possibilities, that two writers will not converge on the same words, and that the next generation of storytellers does not need to take the actual “stuff” that copyright covers in order to make the next play or novel. (It may be because of this image that so few policy makers seem to worry that copyright now lasts for a very long time.) Subsequent “improvements” of copyrighted material are called derivative works, and without the rights holder’s permission, they are illegal. Again, the assumption seems to be that you can just write your own book. Do not claim you need to build on mine.

Of course, each of these pictures is a caricature. The reality is more complex. Copyright can make this assumption more easily because it does not cover ideas or facts—just their expression. “Boy meets girl, falls in love, girl dies” is not supposed to be owned. The novel Love Story is. It is assumed that I do not need Erich Segal’s copyrighted expression to write my own love story. Even if literary creativity does converge around standard genres, plots, and archetypes, it is assumed that those are in the public domain, leaving future creators free to build their own work without using material that is subject to copyright. We could debate the truth of that matter for literature: the expansion of copyright’s ambit to cover plotlines and characters makes it more questionable. Certainly many recognized forms of creativity, such as the pastiche, the collage, the literary biography, and the parody need extensive access to prior copyrighted work. But regardless of how well we think the image of individual creativity fits literature, it fits very poorly in music where so much creativity is recognizably more collective and additive, and where much of the raw material used by subsequent creators is potentially covered by copyright.

So how does the accretive process of musical creativity fare in the modern law and culture of copyright? How would the great musical traditions of the twentieth century—jazz, soul, blues, rock—have developed under today’s copyright regime? Would they have developed at all? How does the law apply to the new musicians, remixers, and samplers who offer their work on the Internet? Do the lines it draws fit with our ethics, our traditions of free speech and commentary, our aesthetic judgments? It would take a shelf of books to answer such questions definitively. In this chapter, all I can do is suggest some possibilities—using the history of a single song as my case study.

On August 29th, 2005, a hurricane made landfall in Louisiana. The forecasters called it “Hurricane Katrina,” quickly shortened to “Katrina” as its story took over the news. The New Orleans levees failed. Soon the United States and then most of the world was watching pictures of a flooded New Orleans, seeing pleading citizens—mainly African-American—and a Keystone Cops response by the Federal Emergency Management Agency. The stories from New Orleans became more and more frightening. There were tales not only of natural disaster—drownings, elderly patients trapped in hospitals—but of a collapse of civilization: looting, murder and rape, stores being broken into with impunity, rescue helicopters fired upon, women and children sexually assaulted in the convention center where many of the refugees huddled. Later, it would turn out that many, perhaps most, of these reports were untrue, but one would not have guessed that from the news coverage.

The television played certain images over and over again. People—again, mainly African-Americans—were portrayed breaking into stores, pleading from rooftops, or later, when help still had not arrived, angrily gesturing and shouting obscenities at the camera.

As the disaster unfolded in slow motion, celebrities began appearing in televised appeals to raise money for those who had been affected by the storm. Kanye West, the hip hop musician, was one of them. Appearing on NBC on September 2, with the comedian Mike Myers, West started out seeming quietly upset. Finally, he exploded.

I hate the way they portray us in the media. You see a black family, it says, “They’re looting.” You see a white family, it says, “They’re looking for food.” And, you know, it’s been five days [waiting for federal help] because most of the people are black. . . . So anybody out there that wants to do anything that we can help—with the way America is set up to help the poor, the black people, the less well-off, as slow as possible. I mean, the Red Cross is doing everything they can. We already realize a lot of people that could help are at war right now, fighting another way—and they’ve given them permission to go down and shoot us!

Myers, who, according to the Washington Post, “looked like a guy who stopped on the tarmac to tie his shoe and got hit in the back with the 8:30 to LaGuardia,” filled in with some comments about the possible effect of the storm on the willingness of Louisiana citizens to live in the area in the future. Then he turned back to West, who uttered the line that came to epitomize Katrina for many people around the world, and to infuriate a large number of others. “George Bush doesn’t care about black people!” Myers, the Post wrote, “now look[ed] like the 8:30 to LaGuardia turned around and caught him square between the eyes.”[1] In truth, he did appear even more stunned than before, something I would not have thought possible.

In Houston, Micah Nickerson and Damien Randle were volunteering to help New Orleans evacuees at the Astrodome and Houston Convention Center during the weekend of September 3. They, too, were incensed both by the slowness of the federal response to the disaster and by the portrayal of the evacuees in the media. But Mr. Nickerson and Mr. Randle were not just volunteers, they were also a hip-hop duo called “The Legendary K.O.” What better way to express their outrage than through their art? An article in the New York Times described their response.

“When they got to Houston, people were just seeing for the first time how they were portrayed in the media,” said Damien Randle, 31, a financial adviser and one half of the Legendary K.O. “It was so upsetting for them to be up on a roof for two days, with their kids in soiled diapers, and then see themselves portrayed as looters.” In response, Mr. Randle and his partner, Micah Nickerson, wrote a rap based on the stories of the people they were helping. On Sept. 6, Mr. Nickerson sent Mr. Randle an instant message containing a music file and one verse, recorded on his home computer. Mr. Randle recorded an additional verse and sent it back, and 15 minutes later it was up on their Web site: www.k-otix.com.[2]

The song was called “George Bush Doesn’t Care About Black People” (also referred to as “George Bush Doesn’t Like Black People”). Appropriately, given that Mr. West was the one to come up with the phrase, the song was built around Mr. West’s “Gold Digger.” Much of the melody was sampled directly from the recording of that song. Yet the words were very different. Where “Gold Digger” is about a predatory, sensual, and materialist woman who “take[s] my money when I’m in need” and is a “triflin’ friend indeed,” The Legendary K.O.’s song is a lyrical and profane condemnation of the response to Katrina by both the government and the media. Here is a sample:

Five days in this motherf__ attic
Can’t use the cellphone I keep getting static
Dying ’cause they lying instead of telling us the truth
Other day the helicopters got my neighbors off the roof
Screwed ’cause they say they coming back for us too
That was three days ago, I don’t see no rescue
See a man’s gotta do what a man’s gotta do
Since God made the path that I’m trying to walk through
Swam to the store, tryin’ to look for food
Corner store’s kinda flooded so I broke my way through
I got what I could but before I got through
News say the police shot a black man trying to loot
(Who!?) Don’t like black people
George Bush don’t like black people
George Bush don’t like black people

This chapter is the story of that song. “George Bush Doesn’t Care About Black People” is the end (for the moment) of a line of musical borrowing. That borrowing extends far beyond Kanye West’s song “Gold Digger.” “Gold Digger” is memorable largely because it in turn borrows from an even older song, a very famous one written half a century before and hailed by many as the birth of soul music. It is in the origins of that song that we will start the trail.

I Got A Woman

In 1955, Ray Charles Robinson, better known as Ray Charles, released a song called “I Got a Woman.” It was a defining moment in Charles’s musical development. Early in his career he had unashamedly modeled himself on Nat King Cole.

I knew back then that Nat Cole was bigger than ever. Whites could relate to him because he dealt with material they understood, and he did so with great feeling. Funny thing, but during all these years I was imitating Nat Cole, I never thought twice about it, never felt bad about copying the cat’s licks. To me it was practically a science. I worked at it, I enjoyed it, I was proud of it, and I loved doing it. He was a guy everyone admired, and it just made sense to me, musical and commercial sense, to study his technique. It was something like when a young lawyer—just out of school—respects an older lawyer. He tries to get inside his mind, he studies to see how he writes up all his cases, and he’s going to sound a whole lot like the older man—at least till he figures out how to get his own shit together. Today I hear some singers who I think sound like me. Joe Cocker, for instance. Man, I know that cat must sleep with my records. But I don’t mind. I’m flattered; I understand. After all, I did the same thing.[3]

In the early 50s Charles decided that he needed to move away from Cole’s style and find his own sound, “sink, swim or die.” But as with any musician, “his own sound” was the product of a number of musical traditions—blues and gospel particularly. It is out of those traditions that “I Got a Woman” emerged; indeed it is that combination that causes it to be identified as one of the birthplaces of soul music.

According to the overwhelming majority of sources, “I Got a Woman” stems from a fairly overt piece of musical borrowing—Charles reworded the hymn “Jesus Is All the World to Me”—sometimes referred to as “My Jesus Is All the World to Me.”

Musically, soul denotes styles performed by and for black audiences according to past musical practices reinterpreted and redefined. During its development, three performers played significant roles in shaping its sound, messages, and performance practice: Ray Charles, James Brown, and Aretha Franklin. If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded “My Jesus Is All the World to Me,” changing its text to “I Got A Woman.”[4]

That story is repeated in the biography on Charles’s Web site. “Charles reworded the gospel tune ‘Jesus Is All the World to Me’ adding deep church inflections to the secular rhythms of the nightclubs, and the world was never the same.”[5] Michael Lydon, Charles’s most impressive biographer, simply reports that “Jesus Is All the World to Me” is described as the song’s origin in another published source,[6] and this origin is cited repeatedly elsewhere in books, newspaper articles, and online,[7] though the most detailed accounts also mention Renald Richard, Charles’s trumpeter, who is credited with co-writing the song.[8]

To secular ears, “Jesus Is All the World to Me” is a plodding piece of music with a mechanical, up-and-down melodic structure. It conjures up a bored (and white) church audience, trudging through the verses, a semitone flat, while thinking about Sunday lunch rather than salvation. It is about as far removed as one could be from the syncopated beat and amorous subject matter of “I Got a Woman.” The hymn was the product of Will Lamartine Thompson—a severe-looking fellow with a faint resemblance to an elderly Doc Holliday—who died in 1909 and is buried in the same place he was born, East Liverpool, Ohio. But the words have an earnestness to them that gives life to the otherwise uninspired verse.

Jesus is all the world to me, my life, my joy, my all;
He is my strength from day to day, without Him I would fall.
When I am sad, to Him I go, no other one can cheer me so;
When I am sad, He makes me glad, He’s my Friend.

Reading those words, one can understand the sincerity that made Mr. Thompson spurn commercial publishers for his devotional music, instead founding his own publishing house (also in East Liverpool) to make sure that his hymns reached the people. I can quote as much of the song as I want without worrying about legal consequences because the copyright on Mr. Thompson’s lyrics has expired. So has the copyright over the music. The song was published in 1904. Copyright had only been extended to musical compositions in 1881. Like all copyrights back then, copyright over music lasted for only twenty-eight years, with a possible extension for another fourteen. If Ray Charles did indeed reword it fifty years later, he was doing nothing illegal. It had been in the public domain for at least eight years, and probably for twenty. Now maybe Charles’s genius was to hear in this hymn, or in a syncopated gospel version of this hymn, the possibility of a fusion of traditions which would itself become a new tradition—soul. Or perhaps his genius was in knowing a good idea—Richard’s—when he heard it, and turning that idea into the beginnings of its own musical genre.

Soul is a fusion of gospel on the one hand and rhythm and blues on the other. From gospel, soul takes the call-and-response pattern of preacher and congregation and the wailing vocals of someone “testifying” to their faith. From rhythm and blues it takes the choice of instruments, some of the upbeat tempo, and the distinctly worldly and secular attitude to the (inevitable) troubles of life. Musicologists delight in parsing the patterns of influence further; R&B itself had roots in “jump music” and the vocal style of the “blues shouters” who performed with the big bands. It also has links to jazz. Gospel reaches back to spirituals and so on.

As with all music, those musical traditions can be traced back or forward in time, the net of influence and borrowing widening as one goes in either direction. In each, one can point to distinctive musical motifs—the chords of the twelve-bar blues, or the flattened fifth in bebop. But musical traditions are also defined by performance styles and characteristic sounds: the warm guitar that came out of the valve amplifiers of early funk, the thrashing (and poorly miked) drums of ’80s punk, or the tinny piano of honky-tonk. Finally, styles are often built around “standards”—classic songs of the genre to which an almost obligatory reference is made. My colleague, the talented composer Anthony Kelley, uses Henry Louis Gates’s term “signifyin’ ” to describe the process of showing you are embedded in your musical tradition by referring back to its classics in your playing. In jazz, for example, one demonstrates one’s rootedness in the tradition by quoting a standard, but also one’s virtuosity in being able to trim it into a particular eight-bar solo, beginning and ending on the right note for the current moment in the chord progression. “I Got Rhythm” and “Round Midnight” are such songs for jazz. (The chord changes of “I Got Rhythm” are so standard, they are referred to as “the rhythm changes”—a standard basis for improvisation.) And to stretch the connections further, as Kelley points out, the haunting introduction to “Round Midnight” is itself remarkably similar to Sibelius’s Fifth Symphony.

Through all these layers of musical borrowing and reference, at least in the twentieth century in the United States, runs the seam of race. When white musicians “borrowed” from soul to make “blue-eyed soul,” when Elvis took songs and styles from rhythm and blues and turned them into rockabilly, a process of racial cleansing went on. Styles were adapted but were cleansed of those elements thought inappropriate for a larger white audience. Generally, this involved cutting some of the rawer sensuality, removing racially specific verbal and musical references, and, for much of the century, cutting the African-American artists out of the profits in the process.

There is another irony here. Styles formed by patterns of gleeful borrowing, formed as part of a musical commons—the blues of the Mississippi Delta, for example—were eventually commercialized and “frozen” into a particular form by white artists. Sometimes those styles were covered with intellectual property rights which denied the ability of the original community to “borrow back.” In the last thirty or forty years of the century, African-American artists got into the picture too, understandably embracing with considerable zeal the commercial opportunities and property rights that had previously been denied to them. But aside from the issue of racial injustice, one has to consider the question of sustainability.

In other work, I have tried to show how a vision of intellectual property rights built around a notion of the romantic author can sometimes operate as a one-way valve vis-Ã -vis traditional and collective creative work.[9] There is a danger that copyright will treat collectively created musical traditions as unowned raw material, but will then prevent the commercialized versions of those traditions—now associated with an individual artist—from continuing to act as the basis for the next cycle of musical adaptation and development. One wonders whether jazz, blues, R&B, gospel, and soul would even have been possible as musical styles if, from their inception, they had been covered by the strong property rights we apply today. That is a question I want to return to at the end of this chapter.

Musical styles change over time and so do their techniques of appropriation. Sometimes musical generations find their successors are engaging in different types of borrowing than they themselves engaged in. They do not always find it congenial. It is striking how often musicians condemn a younger generation’s practice of musical appropriation as theft, while viewing their own musical development and indebtedness as benign and organic. James Brown attacked the use of his guitar licks or the drum patterns from his songs by hip-hop samplers, for example, but celebrated the process of borrowing from gospel standards and from rhythm and blues that created the “Hardest Working Man in Show Business”—both the song and the musical persona. To be sure, there are differences between the two practices. Samplers take a three-second segment off the actual recording of “Funky Drummer,” manipulate it, and turn it into a repeating rhythm loop for a hip-hop song. This is a different kind of borrowing than the adaptation of a chord pattern from a gospel standard to make an R&B hit. But which way does the difference cut as a matter of ethics, aesthetics, or law?

Charles himself came in for considerable criticism for his fusion of gospel intonations and melodic structures with the nightclub sound of rhythm and blues, but not because it was viewed as piracy. It was viewed as sacrilegious.

Charles totally removed himself from the polite music he had made in the past. There was an unrestrained exuberance to the new Ray Charles, a fierce earthiness that, while it would not have been unfamiliar to any follower of gospel music, was almost revolutionary in the world of pop. Big Bill Broonzy was outraged: “He’s crying, sanctified. He’s mixing the blues with the spirituals. He should be singing in a church.”[10]

Charles disagreed. “You can’t run away from yourself. . . . What you are inside is what you are inside. I was raised in the church and was around blues and would hear all these musicians on the jukeboxes and then I would go to revival meetings on Sunday morning. So I would get both sides of music. A lot of people at the time thought it was sacrilegious but all I was doing was singing the way I felt.”[11] Why the charge of sacrilege? Because beyond the breach of stylistic barriers, the relationships Charles described did not seem to belong in church.

“I Got a Woman” tells of a woman, “way over town,” who is good to the singer—very good, in fact. She gives him money when he is in need, is a “kind of friend indeed,” even saves her “early morning loving” just for him (and it is tender loving at that). In the third verse we learn she does not grumble, fuss, or run in the streets, “knows a woman’s place is right there now in the home,” and in general is a paragon of femininity. Gender roles aside, it is a fabulous song, from the elongated “We-e-ell . . .” in Charles’s distinctive tones, to the momentary hesitation that heightens the tension, all the way through the driving beat of the main verses and the sense that a gospel choir would have fit right in on the choruses, testifying ecstatically to the virtues of Charles’s lady friend. Charles liked women—a lot of women, according to his biographers—and a lot of women liked him right back. That feeling comes through very clearly from this song.

I would like to quote the song lyrics for you, just as I did the words of the hymn, but that requires a little more thought. Charles’s song was released in 1955. By that time, the copyright term for a musical composition was twenty-eight years, renewable for another twenty-eight if the author wished. (Later, the twenty-eight-year second term would be increased to forty-seven years. Still later, the copyright term would be extended to life plus seventy years, or ninety-five years for a “work for hire.” Sound recordings themselves would not be protected by federal law until the early 1970s.) Anyone who wrote or distributed a song under the “28+28” system was, in effect, saying “this is a long enough protection for me,” enough incentive to create. Thus, we could have assumed that “I Got a Woman” would enter the public domain in either 1983 or, if renewed, 2011. Unfortunately for us, and for a latter-day Ray Charles, the copyright term has been extended several times since then, and each time it was also extended retrospectively. Artists, musicians, novelists, and filmmakers who had created their works on the understanding that they had twenty-eight or fifty-six or seventy-five years of protection now have considerably more. This was the point raised in Chapter 1. Most of the culture of the twentieth century, produced under a perfectly well-functioning system with much shorter copyright terms, is still locked up and will be for many years to come.

In the case of “I Got a Woman,” it is now about fifty years since the song’s release—the same length of time as between Thompson’s hymn and Charles’s alleged “rewording.” If the words and music were properly copyrighted at the time of its publication, and renewed when appropriate, the copyright still has forty-five years to run. No one will be able to “reword” “I Got a Woman” and use it to found a new genre, or take substantial portions of its melody, until the year 2050. The freedoms Ray Charles says he used to create his song are denied to his successors until nearly a century after the song’s release. (As we will see in a moment, this put certain constraints on Kanye West.)

Would it truly be a violation of copyright for me to quote the middle stanza in a nonfiction book on copyright policy? Not at all. It is a classic “fair use.” In a moment I will do so. But it is something that the publisher may well fuss over, because copyright holders are extremely aggressive in asking for payments for the slightest little segment. Copyright holders in music and song lyrics are among the most aggressive of the lot. Year after year academics, critics, and historians pay fairly substantial fees (by our standards) to license tiny fragments of songs even though their incorporation is almost certainly fair use. Many of them do not know the law. Others do, but want to avoid the hassle, the threats, the nasty letters. It is simpler just to pay.

Unfortunately, these individual actions have a collective impact. One of the factors used to consider whether something is a fair use is whether or not there is a market for this particular use of a work. If there is, it is less likely to be a fair use to quote or incorporate such a fragment. As several courts have pointed out, there is a powerful element of circularity here. You claim you have a right to stop me from doing x—quoting two lines of your three-verse song in an academic book, say. I say you have no such right and it is a fair use. You say it is not a fair use because it interferes with your market—the market for selling licenses for two-sentence fragments. But when do you have such a market? When you have a right to stop me quoting the two-sentence fragment unless I pay you. Do you have such a right? But that is exactly what we are trying to decide! Is it a fair use or not? The existence of the market depends on it not being a fair use for me to quote it without permission. To say “I would have a market if I could stop you doing it, so it cannot be a fair use, so I can stop you” is perfectly circular.

How do we get out of the circle? Often the court will look to customs and patterns in the world outside. Do people accept this as a market? Do they traditionally pay such fees? Thus, if a lot of people choose to pay for quotes that actually should have been fair use, the “market” for short quotes will begin to emerge. That will, in turn, affect the boundaries of fair use for the worse. Slowly, fair use will constrict, will atrophy. The hypertrophied permissions culture starts as myth, but it can become reality.

In any event, Ray Charles had no need of fair use to make “I Got a Woman” because the hymn his biography claims it is based on was in the public domain. But is that the real source? I can hear little resemblance. As I researched the origins of “I Got a Woman,” I found claims that there was a different source, a mysterious song by the Bailey Gospel Singers, or the Harold Bailey Gospel Singers, called “I’ve Got a Savior.”[12] The Columbia Records gospel catalogue even provided a catalogue number.[13] There was such a song, or so it seemed. But there the research stalled. The exemplary librarians at Duke University Music Library could find no trace. Catalogues of published records showed nothing. Inquiries to various music librarian listservs also produced no answer. There was a man called Harold Bailey, who sang with a group of gospel singers, but though several Internet postings suggested he was connected to the song, his biography revealed he would have been only thirteen at the time. The Library of Congress did not have it. Eventually, Jordi Weinstock—a great research assistant who demonstrated willingness to pester anyone in the world who might conceivably have access to the recording—hit gold. The Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts had a copy—a 78 rpm vinyl record by the Bailey Gospel Singers with “Jesus Is the Searchlight” on the B-side. Our library was able to obtain a copy on interlibrary loan from the helpful curator, Don McCormick.

It sounds like the same song. Not the same words, of course: the introduction is different and the Bailey Gospel Singers lack the boom-chicky-boom backing of Charles’s version, but the central melody is almost exactly the same. When the Bailey Gospel Singers sing “Keeps me up / Keeps me strong / Teach me right / When I doing wrong / Well, I’ve got a savior / Oh what a savior / yes I have,” the melody, and even the intonation, parallel Charles singing the equivalent lines: “She gimme money / when I’m in need / Yeah she’s a kind of / friend indeed / I’ve got a woman / way over town / who’s good to me.”

True, some of the lyrical and rhythmic patterns of “I’ve Got a Savior” are older still. They come from a spiritual called “Ain’t That Good News,” dating from 1940, which rehearses all the things the singer will have in the Kingdom of Heaven—a harp, a robe, slippers (!), and, finally, a savior. The author of “I’ve Got a Savior” was, like all the artists discussed here, taking a great deal from a prior musical tradition. Nevertheless, Charles’s borrowing is particularly overt and direct. The term “rewording” is appropriate. So far as I can see, whether or not he also relied on a fifty-year-old hymn, Ray Charles appears to have taken both the melody and lyrical pattern of his most famous hit from a song that was made a mere three or four years earlier.

Like many 78 rpm records, this one was sold without liner notes. The center of the record provides the only details. It gives the name of the track and the band and a single word under the song title, “Ward”—presumably the composer. “Ward” might be Clara Ward of the Ward Singers, a talented gospel singer and songwriter who became Aretha Franklin’s mentor and who had her own music publishing company.

There is a particular reason to think that she might have written the song: Ray Charles clearly liked to adapt her music to secular ends. We know that he “reworked” Ward’s gospel classic “This Little Light of Mine” into “This Little Girl of Mine.” Ward reportedly was irritated by the practice. So far as we know, the copying of the music did not annoy her because she viewed it as theft, but because she viewed it as an offense against gospel music.

Charles is now starting to get criticism from some gospel music performers for secularizing gospel music and presenting it in usual R&B venues. Most adamant in her misgivings is Clara Ward who complains about “This Little Girl Of Mine” being a reworking of “This Little Light Of Mine” (which it is), as a slap against the gospel field.[14]

This stage of Charles’s career is described, rightly, as the moment when his originality bursts forth, where he stops imitating the smooth sounds of Nat King Cole and instead produces the earthy and sensual style that becomes his trademark—his own sound. That is true enough; there had been nothing quite like this before. Yet it was hardly original creation out of nothing. Both Charles himself and the musicological literature point out that “his own sound,” “his style,” is in reality a fusion of two prior genres—rhythm and blues and gospel. But looking at the actual songs that created soul as a genre shows us that the fusion goes far beyond merely a stylistic one. Charles makes some of his most famous songs by taking existing gospel classics and reworking or simply rewording them. “I’ve Got a Savior” becomes “I Got a Woman.” “This Little Light of Mine” becomes “This Little Girl of Mine.”

The connection is striking: two very recent gospel songs, probably by the same author, from which Charles copies the melody, structure, pattern of verses, even most of the title—in each case substituting a beloved sensual woman for the beloved deity. Many others have noticed just how closely Charles based his songs on gospel tunes, although the prevalence of the story that “I Got a Woman” is derived from an early-twentieth-century hymn caused most to see only the second transposition, not the first.[15] Borrowing from a fifty-year-old hymn and changing it substantially in the process seems a little different from the repeated process of “search and replace” musical collage that Charles performed on the contemporary works of Clara Ward.

If I am right, Charles’s “merger” of gospel and blues relied on a very direct process of transposition. The transposition was not just of themes: passion for woman substituted for passion for God. That is a familiar aspect of soul.[16] It is what allows it to draw so easily from gospel’s fieriness and yet coat the religion with a distinctly more worldly passion. Sex, sin, and syncopation—what more could one ask? But Charles’s genius was to take particular songs that had already proved themselves in the church and on the radio, and to grab large chunks of the melody and structure. He was not just copying themes, or merging genres, he was copying the melodies and words from recent songs.

Was this mere musical plagiarism, then? Should we think less of Ray Charles’s genius because we find just how closely two of the canonical songs in the creation of soul were based on the work of his contemporaries? Hardly. “I Got a Woman” and “This Little Girl of Mine” are simply brilliant. Charles does in fact span the worlds of the nightclub at 3 a.m. on Sunday morning and the church later that day, of ecstatic testimony and good old-fashioned sexual infatuation. But the way he does so is a lot more like welding, or bricolage, than it is like designing out of nothing or creating anew while distantly tugged by mysterious musical forces called “themes” or “genres.” Charles takes bits that have been proven to work and combines them to make something new. When I tell engineers or software engineers this story, they nod. Of course that is how creation works. One does not reinvent the wheel, or the method of debugging, so why should one reinvent the hook, the riff, or the melody? And yet Charles’s creation does not have the degraded artistic quality that is associated with “mere” cut-and-paste or collage techniques. The combination is greater than the sum of its parts. If Charles’s songs do not fit our model of innovative artistic creativity, perhaps we need to revise the model—at least for music—rather than devaluing his work.

When I began this study, it seemed to me that the greatest challenge to copyright law in dealing with music was preventing rights from “creeping,” expanding from coverage of a single song or melody to cover essential elements of genre, style, and theme. In effect, we needed to apply the Jefferson Warning to music, to defeat the constant tendency to confuse intellectual property with real property, and to reject the attempts to make the right holder’s control total. My assumption was that all we needed to do was to keep open the “common space” of genre and style, and let new artists create their new compositions out of the material in that commons and gain protection over them. In many ways, Charles’s work lies at the very core of the stuff copyright wishes to promote. It is not merely innovative and expressive itself, it also helped form a whole new genre in which other artists could express themselves. But to create this work, Charles needed to make use of a lot more than just genres and styles created by others. He needed their actual songs. If the reactions of Clara Ward and Big Bill Broonzy are anything to go by, they would not have given him permission. To them, soul was a stylistic violation, a mingling of the sacred with the profane. If given a copyright veto over his work, and a culture that accepts its use, Ward might well have exercised it. Like the disapproving heirs that Macaulay talked about, she could have denied us a vital part of the cultural record. Control has a price.

Did Ray Charles commit copyright infringement? Perhaps. We would have to find if the songs are substantially similar, once we had excluded standard forms, public domain elements, and so on. I would say that they are substantially similar, but was the material used copyright-protected expression?

The Copyright Office database shows no entry for “I’ve Got a Savior.” This is not conclusive, but it seems to indicate that no copyright was ever registered in the work. In fact, it is quite possible that the song was first written without a copyright notice. Nowadays that omission would be irrelevant. Works are copyrighted as soon as they are fixed in material form, regardless of whether any copyright notice is attached. In 1951, however, a notice was required when the work was published, and if one was not put on the work, it passed immediately into the public domain. However, later legislation decreed that the relevant publication was not of the record, but of the notation. If the record were pressed and sold without a copyright notice, the error could be corrected. If a lead sheet or a sheet music version of “I’ve Got a Savior” had been published without notice or registration, it would enter the public domain. It is possible that this happened. Intellectual property rights simply played a lesser role in the 1950s music business than they do today, both for better and for worse. Large areas of creativity operated as copyright-free zones. Even where copyrights were properly registered, permission fees were not demanded for tiny samples. While bootlegged recordings or direct note-for-note copies might well draw legal action, borrowing and transformation were apparently viewed as a normal part of the creative process. In some cases, artists simply did not use copyright. They made money from performances. Their records might receive some kind of protection from state law. These protections sufficed.

But the lack of protection also had a less attractive and more racially skewed side. African-American artists were less likely to have the resources and knowledge necessary to navigate the system of copyright. For both black and white artists, whatever rights there were moved quickly away from the actual creators toward the agents, record companies, and distributors. They still do. But African-American musicians got an even worse deal than their white counterparts. True, the copyright system was only an infinitesimal part of that process. A much larger part was the economic consequences of segregation and racial apartheid. But copyright was one of the many levers of power that were more easily pulled by white hands. This is an important point because the need to end that palpable racial injustice is sometimes used to justify every aspect of our current highly legalized musical culture. About that conclusion, I am less convinced.

In any event, it is possible that the musical composition for “I’ve Got a Savior” went immediately into the public domain. If that were the case, Ray Charles could draw on it, could change it, could refine it without permission or fee. Certainly there is no mention of seeking permission or paying fees in any of the histories of “I Got a Woman.” Indeed, the only question of rectitude Charles was focused on was the stylistic one. Was it appropriate to mix gospel and R&B, devotional music and secular desire? Charles and Richard seemed to see the process of rewording and adapting as just a standard part of the musician’s creative process. The only question was whether these two styles were aesthetically or morally suited, not whether the borrowing itself was illegal or unethical. So, whether they drew on a hymn that had fallen into the public domain after the expiration of its copyright term, or a gospel song for which copyright had never been sought, or whether they simply took a copyrighted song and did to it something that no one at the time thought was legally inappropriate, Renald Richard and Ray Charles were able to create “I Got a Woman” and play a significant role in founding a new musical genre—soul.

One thing is clear. Much of what Charles and Richard did in creating their song would be illegal today. Copyright terms are longer. Copyright protection itself is automatic. Copyright policing is much more aggressive. The musical culture has changed into one in which every fragment must be licensed and paid for. The combination is fatal to the particular pattern of borrowing that created these seminal songs of soul.

That should give us pause. I return to the ideas of the Jefferson Warning from Chapter 2 and the Sony Axiom from Chapter 4. Copyright is not an end in itself. It has a goal: to promote the progress of cultural and scientific creativity. That goal requires rights that are less than absolute. As Jessica Litman points out, building in the intellectual space is different from building in the physical space. We do not normally dismantle old houses to make new ones. This point is not confined to music. Earlier I quoted Northrop Frye: “Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the assimilation of literature to private enterprise.”[17] The question is, how big are the holes we need to leave in the private rights? How large a commons do we need to offer to future creators?

Ray Charles’s creation of “I Got a Woman” is only one case. By itself, it proves nothing. Yet, if we find that the seminal, genre-creating artworks of yesteryear would be illegal under the law and culture of today, we have to ask ourselves “is this really what we want?” What will the music of the future look like if the Clara Wards and Will Lamartine Thompsons of today can simply refuse to license on aesthetic grounds or demand payment for every tiny fragment? Tracing the line further back, it is fascinating to wonder whether gospel, blues, and jazz would have developed if musical motifs had been jealously guarded as private property rather than developed as a kind of melodic and rhythmic commons. Like most counterfactuals, that one has no clear answer, but there is substantial cause for skepticism. If copyright is supposed to be promoting innovation and development in culture, is it doing its job?

An Industry of Gold Diggers

Fifty years after “I Got a Woman” was written, Kanye West released “Gold Digger” on the album Late Registration. Mr. West is an interesting figure in rap. At first he was shunned because his clean-cut looks and preppy clothing ran against the gangster image that often dominates the music. It is just hard imagining Mr. West delivering a line like Rakim’s “I used to be a stick-up kid, so I think of all the devious things I did” with a straight face. (Still less “Stop smiling, ain’t nothin’ funny, nothing moves but the money.”) Perhaps partly as a result, his lyrics are oddly bipolar in their views about exaggerated masculinity and the misogyny that sometimes accompanies it.

For the song, Mr. West recruited Jamie Foxx, who had played Ray Charles in the movie Ray. Showing an impressive expanse of oiled chest, Mr. Foxx imitates Charles’s style and the melody of “I Got a Woman” to provide the lyrical chorus to “Gold Digger.” “I Got a Woman” anchors West’s song. It provides its melodic hook. It breaks up the rap with a burst of musical nostalgia. But Mr. West’s gold digger is very different from Ray Charles’s woman friend. This woman does not give money when the singer is in need. She takes his money when he is in need and is a “triflin’ friend indeed.” Mr. Charles had a friend who gave him tender morning loving. Jamie Foxx sings of a mercenary gold digger who digs on him. When Mr. West adds the rap verses to the song, we get a perfect caricature of such a person, uninterested in any man who is broke, dragging around four kids and an entourage, insisting all of them be entertained at her boyfriend’s expense, and wielding unfounded paternity suits like a proprietary business method. Mr. West’s repeated disclaimer “I ain’t sayin’ she’s a gold digger” is unconvincing, because both the words of the introduction and the implicit message of the rap tell us she is. We even get the absurd image of a man who is playing on the winning side in the Super Bowl but driving a Hyundai, so financially demanding is his girlfriend. At several points the song descends into ludicrous—and perhaps conscious—self-mockery, as it explores the concerns of the rich African-American celebrity male. My favorite line is “If you ain’t no punk, holler ‘We want prenup!!’ ” The audience obliges. It sounds like assertiveness training for show business millionaires.

It would be hard to get a feminist role model out of either “I Got a Woman” or “Gold Digger.” One offers the feminine virtues of modesty and fidelity, but magically combines them with wantonness where the singer is concerned and an open checkbook. The other is a parody of the self-assertive economic actor, as rapacious as any multinational, who uses her sexuality for profit. Put them together and you have bookends—male fantasy and male nightmare. Was that Mr. West’s point? Perhaps. The song itself takes several sly turns. The gold digger dogging Mr. West is used as part of a homily to black women on how to treat their (noncelebrity) black men. They should stick with their man because his ambition is going to take him from mopping floors to the fryers, from a Datsun to a Benz. It seems that Mr. West is getting a little preachy, while slamming the actual social mobility available to black men. Moving from floor cleaning to frying chicken is not actually going to provide a Mercedes. But he immediately undercuts that tone twice, once by acknowledging the boyfriend’s likely infidelity and again by saying that even if the black woman follows his homily, “once you get on, he leave yo’ ass for a white girl.”

Mr. West has a tendency to make sudden turns like this in his lyrics—ironically upsetting the theme he has just set up. So it is not hard to imagine that he deliberately used a fragment of Charles’s song, not just because it sounded good but to contrast the image of the fantasy woman from Charles’s 1950s soul, who is faithful, sensual, and always willing to offer a loan, with an image from today’s rap—sexually predatory and emasculating women who are uninterested in men except as a source of money. Even the retro cover of the single, with its 1950s-style pinup drawing of a white model, seems to draw the connection. Did he use Charles’s song precisely because of these clashing cultural snapshots? Perhaps, or perhaps he just liked the tune. In any event, the contrast is striking. When it was released, Charles’s song was seen as a sacrilegious depiction of sensuality and the woman was decried as a harlot. Compared to the woman in Mr. West’s song, she sounds like a Girl Scout. It is also a little depressing. Ray Charles was neither an egalitarian metrosexual nor a Prince Charming where women were concerned—anything but. But as I said before, you do get a sense that he liked women—however unrealistic or two-dimensional their portrayal. It is hard to get that sense from “Gold Digger.”

Was Mr. West legally required to ask permission—and pay, if necessary—to use a fragment of “I Got a Woman” for his chorus? The longest single piece of borrowing occurs in the introduction: twenty-six words and their accompanying music. “She takes my money, when I’m in need, oh she’s a triflin’ friend indeed. Oh she’s a gold digger, way over town, who digs on me.” As I pointed out, the lyrics from Charles’s song present a very different story. “She gimme money / when I’m in need / Yeah she’s a kind of / friend indeed / I’ve got a woman / way over town / who’s good to me.” But even if the message is the opposite, the musical borrowing is direct. It is also extensive. During Mr. West’s rap, the entire background melody is a loop of Jamie Foxx singing the Ray Charles-inspired melody in the background. During the song, Mr. Foxx returns to words that are closer to Charles’s original: “She gimme money, when I’m in need,” a refrain that is conspicuously at odds with the woman being described by Mr. West. That eight-bar loop of a Ray Charles melody runs throughout Kanye West’s song.

Mr. West is very successful, so the fragment of the song was “cleared”—payment was made to Charles’s estate. It is fascinating to think of what might have happened if Charles’s heirs had refused. After all, one could see West’s song as a crude desecration of Charles’s earlier work, rather than a good-humored homage. Since this is not a “cover version” of the song—one which does not change its nature and thus operates under the statutory licensing scheme—Charles’s heirs would have the right to refuse a licensing request. Unlike Clara Ward, it is clear that Charles’s heirs have the legal power to say no, to prevent reuse of which they disapprove.

Was West legally required to license? Would all this amount to a copyright violation? It is worth running through the analysis because it gives a beautiful snapshot of the rules with which current law surrounds musical creation.

Today, a song is generally covered by at least two copyrights. One covers the musical composition—the sheet music and the lyrics—and the other the particular sound recording of that composition. Just as there are two kinds of copyrights, so there are at least two kinds of borrowings that copyright might be concerned with. First, one musical composition might infringe another. Thus, for example, a court found that George Harrison “subconsciously” based his song “My Sweet Lord” on the melody of “He’s So Fine” by the Chiffons.

How much does it take to infringe? That is a difficult question. The law’s standard is “substantial similarity,” but not every kind of similarity counts. Minimal or de minimis copying of tiny fragments is ignored. Certain styles or forms have become standards; for example, the basic chord structure of the twelve-bar blues or the habit of introducing instruments one at a time, from quietest to loudest. There are only so many notes—and so many ways to rearrange them; inevitably any song will be similar to some other. Yet that cannot mean that all songs infringe copyright. Finally, even where there is substantial similarity of a kind that copyright is concerned with, the second artist may claim “fair use”—for parody or criticism, say. Copyright law, in other words, has tried to solve the problem with which I began the chapter. Because much of musical creativity is organic and collective and additive, because it does use prior musical expression, some copyright decisions have tried to carve out a realm of freedom for that creativity, using doctrines with names such as scènes à faire, merger, and fair use. This is yet another example of judges trying to achieve the balance that this book is all about—between the realm of the protected and the public domain—recognizing that it is the balance, not the property side alone, that allows for new creativity.

The second type of potential infringement comes when someone uses a fragment of the earlier recording as part of the later one, actually copying a portion of the recording itself and using it in a new song. One might imagine the same rules would be applied—de minimis copying irrelevant, certain standard forms unprotected, and so on. And one would be wrong. In a case called Bridgeport Music, which I will discuss in a moment, the Court of Appeals ruled that taking even two notes of a musical recording counts as potentially actionable copying. Where recordings are concerned, in other words, there is almost no class of copying so minimal that the law would ignore it. This is a terrible decision, at least in my opinion, likely to be rejected by other Circuits and perhaps even eventually by the Supreme Court. But for the moment, it is a case that samplers have to deal with.

How does Kanye West fare under these rules? He may sample from the actual recording of Mr. Charles’s song. It is hard to tell. He certainly copies portions of the melody. That means we have to look at the copyright in the musical composition—the words and the music of “I Got a Woman.” For a copyright infringement, one needs a valid copyright and evidence of copying, the amount copied needs to be more than an insignificant fragment, substantial similarity is required, and the similarity has to be between the new work and the elements of the original that are actually protected by copyright. Elements taken from the public domain, standard introductions, musical clichÃ©s, and so forth, do not get included in the calculation of similarity. Finally, the copier can claim “fair use”—that his borrowing is legally privileged because it is commentary, criticism, parody, and so on.

Does Charles, or his record company, have a valid copyright in the musical composition? One huge problem in copyright law is that it is remarkably hard to find this out. Even with the best will in the world, it is hard for an artist, musician, or teacher to know what is covered by copyright and what is not. Nowadays, all works are copyrighted as soon as they are fixed, but at the time “I Got a Woman” was written one had to include a copyright notice or the song went immediately into the public domain. The Copyright Office database shows no copyright over the words and music of “I Got a Woman.” There are copyrights over a variety of recordings of the song. If Mr. West is using a fragment of the recording, these would affect him. But the melody? It is possible that the underlying musical composition is in the public domain. Finding out whether it is or is not would probably cost one a lot of money.

Suppose that Mr. Charles has complied with all the formalities. The words and music were published with a copyright notice. A copyright registration was filed and renewed. Does Mr. West infringe this copyright? That is where the discovery of the Bailey Gospel Singers recording is potentially so important. Charles only gets a copyright in his original creation. Those elements taken from the public domain (if “I’ve Got a Savior” was indeed in the public domain) or from other copyrighted songs do not count. The irony here is that the elements that Kanye West borrows from Ray Charles are almost exactly the same ones Ray Charles borrows from the Bailey Gospel Singers. “I’ve got a savior, Oh what a savior” becomes “I got a woman, way over town” becomes “There’s a Gold Digger, way over town.” And of course, the music behind those words is even more similar. When The Legendary K.O. reached for Kanye West’s song in order to criticize Mr. Bush, they found themselves sampling Jamie Foxx, who was copying Ray Charles, who was copying the Bailey Gospel Singers, who themselves may have borrowed their theme from an older spiritual.

George Bush Doesn’t Care . . .

Five damn days, five long days
And at the end of the fifth he walking in like “Hey!”
Chilling on his vacation, sitting patiently
Them black folks gotta hope, gotta wait and see
If FEMA really comes through in an emergency
But nobody seem to have a sense of urgency
Now the mayor’s been reduced to crying
I guess Bush said, “N———’s been used to dying!”
He said, “I know it looks bad, just have to wait”
Forgetting folks was too broke to evacuate
N———’s starving and they dying of thirst
I bet he had to go and check on them refineries first
Making a killing off the price of gas
He would have been up in Connecticut twice as fast . . .
After all that we’ve been through nothing’s changed
You can call Red Cross but the fact remains that . . .
George Bush ain’t a gold digger,
but he ain’t f——ing with no broke n———s
“George Bush Doesn’t Care About Black People,” The Legendary K.O.

The song “George Bush Doesn’t Care About Black People” was an immediate sensation. Hundreds of thousands of people downloaded it. Within days two different video versions had been made, one by Franklin Lopez and another by a filmmaker called “The Black Lantern.” Both synchronized the lyrics of the song with news clips of the disaster and unsympathetic footage of President Bush apparently ignoring what was going on. The effect was both hilarious and tragic. The videos were even more popular than the song alone. The blogosphere was fascinated—entries were posted, e-mails circulated to friends with the usual “you have to see this!” taglines. In fact, the song was so popular that it received the ultimate recognition of an Internet fad: the New York Times wrote a story on it, setting the practice in historical context.

In the 18th century, songwriters responded to current events by writing new lyrics to existing melodies. “Benjamin Franklin used to write broadside ballads every time a disaster struck,” said Elijah Wald, a music historian, and sell the printed lyrics in the street that afternoon. This tradition of responding culturally to terrible events had almost been forgotten, Mr. Wald said, but in the wake of Hurricane Katrina, it may be making a comeback, with the obvious difference that, where Franklin would have sold a few song sheets to his fellow Philadelphians, the Internet allows artists today to reach the whole world.[18]

Mr. Nickerson’s and Mr. Randle’s song started with Kanye West’s words—taken from the fundraiser with Mike Myers. “George Bush doesn’t care about black people.” From there it launched into the song. The background melody comes almost entirely from a looped, or infinitely repeated, version of the hook that Kanye West and Jamie Foxx had in turn taken from Ray Charles: “She gimme money, when I’m in need. I gotta leave.” Against that background, The Legendary K.O. provide their profane and angry commentary, part of which is excerpted above, with a chorus of “George Bush don’t like black people,” in case anyone had missed the point.

The videos differ in the issues they stress. Franklin Lopez’s movie is, rather pointedly given its theme, just black and white. He uses ornate captions pages, reminiscent of silent film from the 1920s, to make political points against the background of the song and the news footage. As the captions read “Katrina Rapidly Approaches,” we cut to a shot of the hurricane. “The President Ponders on What to Do.” We have a shot of Mr. Bush playing golf. “I Think I’ll Ride This One Out.” Mr. Bush is shown relaxing on a golf cart, juxtaposed against pictures of African-Americans wading through the floods. The captions add, as an afterthought, “And Keep Dealing with the Brown People.” (Pictures of soldiers shooting.) When FEMA’s Michael Brown is shown—at the moment when Bush said “Brownie, you are doing a hell of a job”—the captions comment mockingly, “The Horse Judge to the Rescue.”

Mr. Lopez’s video obviously tries to use The Legendary K.O.’s song to make larger political arguments about the country. For example, it asserts that “in 2004 Bush diverted most of the funds for the levees to the war in Iraq.” Scenes reminiscent of a Michael Moore documentary are shown. There are pictures of the Iraq war, Halliburton signs, and shots of the president with a member of the Saudi royal family. The captions accuse the president of showing insensitivity and disdain to racial minorities. One summarizes the general theme: “Since he was elected president, George Bush’s policies have been less than kind toward Africans and Hispanics.” Issues ranging from the response to the Darfur massacres, No Child Left Behind, and the attempted privatization of Social Security also make their appearance. The video concludes by giving the donation information for the Red Cross and saying that we are “onto” Bush. A picture of a Klansman removing his hood is shown, with the image manipulated so that the face revealed is Mr. Bush’s.

The Black Lantern’s video is just as angry, and it uses some of the same footage, but the themes it picks up are different. It starts with a logo that parodies the FBI copyright warning shown at the beginning of movies: “WARNING: Artist supports filesharing. Please distribute freely.” That dissolves into a picture of Kanye West and Mike Myers. West is speaking, somewhat awkwardly as he goes “off script,” and at first Mr. Myers is nodding, though he starts to look increasingly worried. West says, “I hate the way they portray us in the media. You see a black family it says they are looting. You see a white family, it says they are looking for food.” Finally, West says “George Bush doesn’t care about black people” and the camera catches Myers’s mute, appalled reaction. Then the song begins. The film cuts repeatedly between a music video of Mr. Foxx as he sang the lines for “Gold Digger” and the news coverage of the debacle in New Orleans. At one point the music pauses and a news anchor says, “You simply get chills when you look at these people. They are so poor. And so black.” The song resumes. Here the message is simpler. The media coverage is biased and governmental attention slowed because of negative racial stereotypes and lack of concern about black people.

Some readers will find that this song and these videos capture their own political perspectives perfectly. They will love the bitterly ironic and obscene outrage at the government’s failure, the double standards of the press, and the disproportionate and callously disregarded impact on the poor and black. Others will find both song and films to be stupid, insulting, and reductionist—an attempt to find racial prejudice in a situation that, at worst, was an example of good old-fashioned governmental incompetence. Still others will find the language just too off-putting to even think about the message. Whatever your feelings about the content, I urge you to set them aside for a moment. For better or worse, Mr. Bush just happened to be president at the moment when the Internet was coming into its own as a method of distributing digitally remixed political commentary, which itself has recently become something that amateurs can do for pennies rather than an expensive activity reserved to professionals. The point is that whatever rules we apply to deal with “George Bush Doesn’t Care About Black People” will also apply to the next video that alleges corruption in a Democratic administration or that attacks the sacred cows of the left rather than the right. How should we think about this kind of activity, this taking the songs and films and photos of others and remixing them to express political, satirical, parodic, or simply funny points of view?

Sampling

Let us begin with the music. Unlike the other songs I have discussed here, with the possible exception of Mr. West’s, “George Bush Doesn’t Care About Black People” makes use of digital samples of the work of others. In other words, this is not merely about copying the tune or the lyrics. The reason that Mr. Nickerson and Mr. Randle could make and distribute this song so fast (and so cheaply) is that they took fragments from the recording of “Gold Digger” and looped them to form the background to their own rap. That was also part of the reason for the positive public reaction. Kanye West (and Ray Charles and Clara Ward) are very talented musicians. West’s song was already all over the airwaves. The Legendary K.O. capitalized on that, just as Benjamin Franklin capitalized on the familiarity of the songs he reworded. But where Franklin could only take the tune, The Legendary K.O. could take the actual ones and zeros of the digital sound file.

As I mentioned earlier, there are two types of copyright protection over music. There is the copyright over the musical composition and, a much more recent phenomenon, the copyright over the actual recording. This song potentially infringes both of them.

Readers who came of age in the 1980s might remember the music of Public Enemy and N.W.A.—a dense wall of sound on which rap lyrics were overlaid. That wall of sound was in fact made up of samples, sometimes hundreds of tiny samples in a single track. Rap and hip-hop musicians proceeded under the assumption that taking a fragment of someone else’s recording was as acceptable legally (and aesthetically) as a jazz musician quoting a fragment of another tune during a solo. In both cases, the use of “quotation” is a defining part of the genre, a harmless or even complimentary homage. Or so they thought.

In a 1991 case called Grand Upright, that idea was squashed.[19] The rap artist Biz Markie had extensively sampled Gilbert O’Sullivan’s song “Alone Again (Naturally)” for his own song “Alone Again.” The court could have applied the rules described earlier in this chapter, decided whether or not this was a large enough usage to make the second song substantially similar to the original, discussed whether or not it counted as a fair use, whether Markie’s use was transformative or parodic, whether it was going to have a negative impact on the market for the original, weighed the issues, and ruled either way. In doing so, there would have been some nice points to discuss about whether or not the breadth of fair use depends in part on the practice in the relevant artistic community, how to understand parodic reference, or the relevant markets for the work. (Biz Markie’s lawyers had asked for permission to use the sample, but the Supreme Court has made clear that seeking permission does not weigh against a defense of fair use.) There were also some tricky issues about the breadth of legal rights over recordings—the right was of relatively recent creation and had some interesting limitations. Underlying it all was a more fundamental question: how do we interpret the rules of copyright so as to encourage musical creativity? After all, as this chapter has shown, borrowing and reference are a fundamental part of musical practice. We ought to think twice before concluding they are illegal. Are we to criminalize jazz? Condemn Charles Ives? And if not, what is the carefully crafted line we draw that allows some of those uses but condemns this one?

Judge Duffy, however, was uninterested in any of these subtleties.

“Thou shalt not steal” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.[20]

If this were a law school exam, it would get a “D.” (Maybe a C given grade inflation.) Duffy makes all of the errors Jefferson warned us against. Tangible property is the same as intellectual property. Songs are the same as sheep and the same rules can apply to both. Theft is theft. The prior injunctions of the framers and the courts notwithstanding, we do not need to think carefully about the precise boundaries of intellectual property rights or worry that interpreting them too broadly is as bad as making them too narrow. So far as Judge Duffy is concerned, the tablets on Mount Sinai were inscribed with an absolute injunction against digital sampling. (The font must have been small.) But to say all this is merely to scratch the surface of how regrettable a decision it is. In the narrowest and most formalistic legal terms it is also very poor.

Judge Duffy gives not a single citation to the provisions of the Copyright Act. He ignores issues of de minimis copying, substantial similarity, fair use, and the differences between the right over the recording and that over the composition. In fact, he quotes the Bible more, and more accurately, than he does Title 17 of the U.S. Code—the Copyright Act. The one mention he makes of actual copyright law is at the end of the opinion, when he refers the case for criminal prosecution! When I first read this case, I seriously wondered for a moment if it were a crude parody of a legal opinion written by someone who had never been to law school.

Is the result in this case wrong? Personally, I do not think so. It is possible, even probable, that a conscientious judge who bothered to read the law could go through a careful analysis and find that Markie’s use went beyond de minimis copying, that it was neither creative, parodic, nor short enough to count as a fair use. The judge might have presumed a negative effect on the market for Mr. O’Sullivan’s song and thus could have ruled that it was a copyright infringement. In doing so, the judge would have to give some guidance to future courts about digital sampling. The most likely guidance would be “the sample here is so extensive and so unchanged, that this case says little about the wider musical practice of sampling.” Judge Duffy’s opinion was poor not because of the result he reached, but because he reached it in an overly broad and judicially inappropriate way that became a guideline for future cultural creation. Worse still, the industry listened to him.

In excellent books on this issue, Kembrew McLeod and Siva Vaidhyanathan each argue that Grand Upright was a disaster for rap music.[21] The industry’s practice turned full circle almost overnight. Now every sample, no matter how tiny, had to be “cleared”—licensed from the owners of the recording. As they tell the story, this “legal” change caused an aesthetic change. The number of samples in an average song dropped precipitously. The engaging complexity of the Public Enemy “wall of sound” gave way to the simplistic thumping beat and unimaginative synthesizer lines of modern rap. I must admit to sharing McLeod’s and Vaidhyanathan’s musical prejudices. The causal claim is harder to substantiate, but industry lawyers and musicians both agree that changes in the industry’s understanding of the law had a major role in transforming the practice of sampling.

If we disregard the Jefferson Warning and assume the recording artist has absolute property rights over his work, then we could ignore the idea that forcing people to pay for stuff they take might have a negative effect on future art and culture. Theft is theft. I might be able to make art much more easily if I did not have to pay for the paint and canvas, but that is not commonly held to excuse shoplifting from art stores. But if we take the Jefferson Warning seriously, then intellectual property’s job is to balance the need to provide incentives for production and distribution with the need to leave future creators free to build upon the past. Reasonable minds will differ on where this line is to be drawn, but the process of drawing it is very different from the process Judge Duffy had in mind.

For fifteen years, critics of the decision waited for an appeals court to fix the law in this area. When the case of Bridgeport Music, Inc. v. Dimension Films came up, they thought they had what they wanted. The band NWA had used a tiny fragment (less than two seconds) consisting of three notes of a guitar solo from the George Clinton song “Get Off Your Ass and Jam.” The fragment was an arpeggiated chord, which simply means that you strike the notes of the chord individually and in sequence. It was, in fact, a pretty standard “deedly” sound, familiar from many guitar solos. NWA then heavily distorted this fragment and looped it so that it played in the background of one part of the song—so faintly that it is almost impossible to hear and completely impossible to recognize. (With the distortion it sounds like a very faint and distant police siren.) A company called Bridgeport Music owned the sound recording copyright over the Clinton song. They sued. NWA’s response was predictable—this was classic de minimis copying, which the law did not touch. One did not even have to get to the issue of fair use (though this surely would be one).

The appeals court did not waste any time attempting to dignify Judge Duffy’s decision in Grand Upright.

Although Grand Upright applied a bright-line test in a sampling case, we have not cited it as precedent for several reasons. First, it is a district court opinion and as such has no binding precedential value. Second, although it appears to have involved claims for both sound recording and musical composition copyright infringement, the trial judge does not distinguish which he is talking about in his ruling, and appears to be addressing primarily the musical composition copyright. Third, and perhaps most important, there is no analysis set forth to indicate how the judge arrived at his ruling, which has resulted in the case being criticized by commentators.[22]

They did like one thing about the decision, however: its bright-line rule, “Thou Shalt Not Steal.” (Lawyers use the term “bright-line rule” to refer to a rule that is very easy to apply to the facts. A 55 mph speed limit is a bright-line rule.) The Bridgeport court rejected the idea that sound recording copyrights and music composition copyrights should be analyzed in the same way. They wanted to set a clear rule defining how much of a sound recording one could use without permission. How much? Nothing. To be precise, the court suggests in a footnote that taking a single note might be acceptable since the copyright protection only covers a “series.” Anything more, however, is clearly off limits.

Though they come to a conclusion that, if anything, is more stringent than Judge Duffy’s, they do so very differently. In their words, “Get a license or do not sample.” Effectively, the court concludes that the sound recording copyright is different enough from the composition copyright that a court could reasonably conclude that a different analysis is required. The judges are fully aware that copyright must balance encouraging current creators and leaving raw material to future creators—the Jefferson Warning holds no novelty for them. But they conclude that a clear “one-note rule” will do, because if the costs of licenses are too high, samplers can simply recreate the riff themselves, and this will tend to keep prices reasonable.

This is an interesting idea. Why does this not happen more often? Why do samplers not simply recreate James Brown’s drumbeat from “Funky Drummer,” or George Clinton’s solo from “Get Off Your Ass and Jam”? Musicians offer lots of different answers. They do not understand the distinction the court is drawing, so the market never develops. The samples themselves cannot be replicated, because the music has all kinds of overtones from the historical equipment used and even the methods of recording. Fundamentally, though, the answer seems to be one of authenticity, ironically enough. The original beats have a totemic significance—like the great standard chord sequences in jazz. One cannot substitute replicas for James Brown’s funkiness. It just would not be the same. As Walter Benjamin pointed out long ago in “The Work of Art in the Age of Mechanical Reproduction,” cheap copying actually increases the demand for authenticity.[23] The court’s economic analysis—which imagines a world of fungible beats produced for music as a consumer good—deals poorly with such motivations.

When the court first released its decision, it was greeted with concern even by recording industry representatives who might have been expected to favor it, because it appeared to do away with not only the de minimis limitation on copyright (some portions are just too small to count as “copying”) but the fair use provisions as well. The court took the very unusual step of rehearing the case and amending the opinion, changing it in a number of places and adding a paragraph that stated that when the case went back to the district court, the judge there was free to consider the fair use defense. Of course, if one takes this seriously—and, for the constitutional reasons given in Chapter 5, I agree that the court has no power to write fair use out of the statute—it undermines the supposedly clear rule. If the factors of fair use are seriously applied, how can a three-note excerpt ever fail to be fair use? And if we always have to do a conventional fair use analysis, then the apparent clarity of the one-note rule is an illusion.

The Bridgeport decision is a bad one, I believe. Among other things, it fails to take seriously the constitutional limitations on copyright—including the originality requirement and the First Amendment. (A three-note sample is not original enough to be protected under copyright law, in my view. There are also more speech-related issues in sampling than the court seems to realize.) The competitive licensing market the court imagines seems more like economic fantasy than reality. I think the ruling sets unnecessary barriers on musical creation and ends up with a rule that is just as blurry as the one it criticizes. I think the court’s reading of the statute and legislative history is wrong—though I have not bored you with the full details of that argument. But I want to be clear that it is a very different kind of bad decision from Judge Duffy’s.

The court in Bridgeport does see copyright as a balance. It does understand the need for future creators to build on the past, but it also shows that a simple willingness to look upon intellectual property protections in a utilitarian way does not solve all problems. It certainly does not proceed from Jefferson’s presumption that intellectual property protections should be interpreted narrowly. Though it claims to have a “literal” reading of the statute, the real driving force in the analysis is an unconsummated desire for bright-line rules and a belief that the market will solve these problems by itself. The court also suggests that “[i]f this is not what Congress intended or is not what they would intend now, it is easy enough for the record industry, as they have done in the past, to go back to Congress for a clarification or change in the law.” Note the assumption that “the record industry” is the most reliable guide to Congress’s intentions or that it is the only entity affected by such a rule. This is truly the image of copyright law as a contract among affected industries. Of course, digital artists such as The Legendary K.O. hardly fit within such a model.

Under the rule in Bridgeport—“Get a license or do not sample”—Mr. Randle and Mr. Nickerson appear to be breaking the law. They did not get a license and they most definitely did sample. What about fair use? Under fair use, copyright allows a very specific (and possibly lengthy) use of another’s material when the purpose is parody of that prior work itself. The Supreme Court gave parody a unique status in the Acuff-Rose case. The (extremely profane) rap group 2 Live Crew had asked for permission to produce a version of Roy Orbison’s “Pretty Woman.” But where Orbison sang about the pretty woman walking down the street whom he would like to meet, 2 Live Crew wrote about a “big hairy woman” (“with hair that ain’t legit, ’cause you look like Cousin It”). They sang about a “bald headed” woman with a “teeny weeny afro.” They sang about group sex with both women. Finally, they told a “two timin’ woman,” “now I know the baby ain’t mine.” Justice Souter showed the characteristic sangfroid of a Supreme Court justice faced with raunchy rap music.

While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivetÃ© of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.[24] [emphasis added]

Truly, the law can confront and master all cultural forms. The heart of parody as the Supreme Court described it is that one is taking aim at the original. Because 2 Live Crew could be seen as directing their song at Orbison’s original, rather than using Orbison’s song to make some other political or social point, the court was willing to give it the favorable consideration that parody receives as a fair use.

Does “George Bush Doesn’t Care About Black People” fit that model? The Legendary K.O. were not “taking aim” at “Gold Digger.” True, they quoted West’s actual words from the television broadcast (also copyrighted). They even used them as their title. But they were not taking aim at his song. (Ironically, Kanye West has a better claim that he was taking aim at Ray Charles’s picture of womanhood, in just the way described in the 2 Live Crew case.) Rather, The Legendary K.O. were using the sample of the song as the backing to an entirely different rap that expressed, in familiar and popular musical form, a more expansive version of his condemnation of both press and president. That does not end the inquiry. Parody is not the only form of protected criticism or commentary. But it makes it much harder for them to succeed, particularly in light of the hostility toward sampling betrayed by both Grand Upright and Bridgeport.

The videos made by The Black Lantern and Franklin Lopez present an even more complex set of questions. On top of the music copyright issues, we also have fair use claims for the extensive news footage and footage of Mr. Foxx. The Black Lantern also used some fragments of a popular video by JibJab, which had a cartoon Bush and Kerry singing dueling parodied versions of Woody Guthrie’s “This Land.” When JibJab’s video first came out, the Guthrie estate claimed copyright infringement over the song. Assisted by a number of public interest legal groups, JibJab claimed fair use. (It eventually came out that the copyright over the song was no longer valid.) What did Jib- Jab do when The Black Lantern sampled them in their turn? In a move that both wins the prize for hypocrisy and serves to sum up the intersection of law and culture I have been describing, they sent him a cease and desist letter. The video was taken down for a week and he was eventually forced to remove the segment of their video from his work. Fair use for me, but not for thee.

Conclusion

The Legendary K.O. samples Kanye West, who uses a fragment from Ray Charles, who may have taken material from Will Lamartine Thompson or, more likely, from Clara Ward (who herself borrowed from a gospel standard). The chain of borrowing I describe here has one end in the hymns and spirituals of the early 1900s and the other in the twenty-first century’s chaotic stew of digital sampling, remix, and mashup. Along the way, we have the synthesis of old and the invention of new musical genres—often against the wishes of those whose work is serving as the raw material. One way of viewing this story is that each of these musicians (except for some imaginary original artist, the musical source of the Nile) is a plagiarist and a pirate. If they are licensing their material or getting it from the public domain, then they may not be lawbreakers but they are still unoriginal slavish imitators. If one’s image of creativity is that of the romantic, iconoclastic creator who invents the world anew with each creation, those conclusions seem entirely appropriate. The borrowing here is rampant. Far from building everything anew, these musicians seem quite deliberately to base their work on fragments taken from others.

It is important to remember that copyright does not subscribe completely to the idea of romantic creation where music is concerned. As I pointed out earlier, musical genres develop out of other genres: soul from gospel and rhythm and blues; gospel from spirituals; rhythm and blues from jazz, jump music, and Delta blues; and so on. When it comes to genres, we can play the game of musicological “six degrees of separation” all day long. Copyright is supposed to leave “holes” in its coverage so that the genre is not covered, only the specific form of creativity within the genre. I mentioned before the need to keep the lines of genre and form open, to keep them free from private property rights in order to allow musicians to develop the form by using them as common property, the “highways” of musical progress. So, for example, the twelve-bar blues uses the first, fourth, and fifth chords in a scale. That sequence cannot be owned, unless blues is to become impossible or illegal. Bebop is characterized by copious use of the flattened fifth—a sound which was jarring to audiences when it was first introduced and which marked the break with the more accessible jazz of swing and the big bands. The flattened fifth is not owned. These characteristic genre-creating sequences or sounds are supposed to be left in the public domain, though increasingly some scholars—including me—are coming to believe that we have managed to make the copyright holder’s control so complete and so granular as to close those common areas and impede the development of future musical forms. The Bridgeport court might extend its logic and imagine that the entire musical commons could be licensed, of course. The presence of other chord sequences would keep the price down! But up to now, we have not gone that far. In theory at least, copyright is not supposed to stop the next Ray Charles, the person who wants to fuse two older forms of music to create a third.

Yet the chain of borrowing that links The Legendary K.O., Kanye West, Ray Charles, and the Bailey Gospel Singers is of a different kind. This borrowing involves taking chunks of prior musicians’ melodies, their words, their lyrical patterns. This is not just copying the genre. It is copying the lines of the song within the genre. This is the kind of stuff copyright is supposed to regulate even when it is working well. And yet, listening to the sequence, it is hard to deny that at each stage something artistic and innovative, something remarkable, has been created. In fact, the story of this song is the striking ability of each set of artists to impose their own sound, temperament, spirituality, humor, vision of women, or, in the case of The Legendary K.O., their intense and profane political anger, onto the musical phrases they have in common.

The postmodern conclusion here is “there is nothing new under the sun”—that all creation is re-creation, that there is no such thing as originality, merely endless imitation. If this is meant to be a comment about how things get created, at least in music, I think there is some truth to it. But if it is a claim about aesthetic worth, a denial that there are more and less creative individuals in the arts, I find it as facile and unconvincing as its romantic authorial opposite.

What is fascinating about the artists I describe here is that, while they do not fit neatly into either the aesthetic ideal of independent creation or the legal model for how creative expression gets made, they each have a remarkable, palpable creativity. Each leaves us with something new, even if formed partly from the fragments of the past. One could describe Ray Charles as the merest plagiarist—making “search and replace” songs by substituting a woman for the deity in already-established hits. But if that is our conclusion, it merely proves that our theories of aesthetics are poorer than the creativity they seek to describe. So much the worse for the theories.

As Jefferson pointed out, the lines surrounding intellectual property are hard to draw—something the Bridgeport court got right. When we draw them, whether legally or as a matter of aesthetic morality, we do so partly with standard instances in mind. “Well, that can’t be wrong,” we think to ourselves, and reason by analogy accordingly. Yet the process of analogy fails us sometimes, because the types of borrowing change over time.

Ray Charles was frank about the way he copied the style and licks of Nat King Cole like an apprentice learning from a lawyer. But he and his estate assiduously guarded his copyrights against more modern borrowing they found to be inappropriate. Judge Duffy thunderously denounces Biz Markie. It is harder to imagine him leveling the same condemnation at Dizzy Gillespie, Charles Ives, Oscar Peterson, or, for that matter, Beethoven, though all of them made copious use of the works of others in their own. It is bizarre to imagine a Bridgeport-like rule being extended to composition copyrights and applied to music such as jazz. “Get a license or do not solo”? I think not. Does it make any more sense for sampling?

If there is a single reason I told the story of these songs it is this: to most of us, certainly to me, the idea that copyright encourages creativity and discourages the reuse of material created by others seems reasonable. Of course, I would want to apply the correctives implied by the Jefferson Warning—to make sure the rights were as short and as narrow as possible. But at least when it comes to copying chunks of expression still covered by copyright, our intuitions are to encourage people to create “their own work,” rather than to rely on remix. What does that mean in the world of music? As the story I have told here seems to illustrate, even musicians of unquestioned “originality,” even those who can make a claim to having created a new musical genre, sometimes did so by a process rather more like collage than creation out of nothing, taking chunks of existing work that were proven to work well and setting them in a new context or frame.

Imagine Ray Charles trying to create “I Got a Woman” today. Both of his possible sources would be strongly and automatically protected by copyright. The industries in which those works were produced would be much more legalistic and infinitely more litigious. The owners of those copyrights could use them to stop him from “desecrating their work”—which is literally what he is doing. We know Clara Ward objected to Charles’s other borrowings from gospel. I cannot imagine Will Lamartine Thompson or his worthy neighbors in East Liverpool looking kindly on the sweet “early morning loving” outside of wedlock described in “I Got a Woman,” still less the use of sacred music to glorify it. And copyright gives them the power to say no. Remember Macaulay’s description of how Richardson’s novels might have been censored by a moralistic heir? Even if the objections were not vetoes, but simple demands for payment, would we get “I Got a Woman” and “This Little Girl of Mine”? Given the extent of the borrowing that jump-started this particular genre-bridging effort, would we be likely to see the birth of soul music?

Congress assures us that the many increases in copyright protection have been in the name of encouraging creativity. The music industry says the same thing when its pettifogging clearance procedures and permission culture are criticized. But do we really think we are more likely to get a twenty-first-century Ray Charles, or a fusion of styles to create a new genre, in the world we have made? Do we really think that the formalist ignorance of Judge Duffy or the market optimism of the Bridgeport court, in which thick markets offer fungible sets of samples to be traded like commodities, are good guides for the future of music? Are we in fact killing musical creativity with the rules that are supposed to defend it?

An Internet optimist would tell us that is precisely the point. True, because of the errors described in the chapter on the Jefferson Warning, and the mistakes catalogued in the chapters on the Internet Threat and the Farmers’ Tale, we have dramatically expanded the scope, length, and power of the rights that are supposed to shape our creative culture. But technology cures all. Look at The Legendary K.O., The Black Lantern, or Franklin Lopez. They are all probably breaking the law as it is currently interpreted by the courts. But their work can be created for pennies and distributed to millions. The technology allows people to circumvent the law. Admittedly, some of the copyright holders will police their rights assiduously—think of JibJab’s newfound dislike of fair use and their power to alter The Black Lantern’s video. But others either cannot or will not. Kanye West’s representatives in particular are unlikely to be stupid enough to sue The Legendary K.O. in the first place. Internet distribution becomes a demimonde in which the rules of the rest of the society either cannot or will not be enforced. Art gets its breathing room, not from legal exceptions, but from technological enforcement difficulties. Finally, as more and more people can create and distribute digital culture, they are less likely to understand, believe in, or accept rules that are strongly at variance with their aesthetic and moral assumptions.

There is a lot to these points. The technology does transform the conditions of creativity, and sometimes it runs right over the law in the process. Thousands, even millions, can be reached outside of conventional distribution channels with work that is technically illegal. And attitudes toward creative propriety do not track legal rules. When I wrote to Mr. Randle and Mr. Nickerson, I found that they realized Mr. West probably had a legal right to get their work taken down, but they felt he would not use it, and they had a very commonsensical conception of what they ought to be allowed to do. They were not making any money from this. They were making a political point, drawing attention to a political and human problem. That made it okay. They would have liked more formal permission so that they could actually distribute CDs through conventional for-profit channels, perhaps with some portion of the proceeds going to disaster relief, but they understood they were unlikely to get it.

Despite all this, I am uncomfortable with the argument “do not worry, technology will allow us to evade the rules where they are stupid.” A system that can only function well through repeated lawbreaking is an unstable and dangerous one. It breeds a lack of respect for the law in those who should be its greatest supporters and beneficiaries. It blurs civil disobedience and plain old lawbreaking. Sitting in on the segregated lunch counter and being willing to face the consequences is very different from parking in the disabled space and hoping you can get away with it. It also blurs our judgment of conduct. Whatever one thinks of them, The Legendary K.O. are doing something very different than a college student who just does not want to pay for music and downloads thousands of tracks for free from file sharing networks.

The problem is not simply one of blurring. Technology-based “freedoms” are not reliable (though legal ones, too, may fail). In a pinch, the technology may not save you, as thousands of those same downloaders have found out when sued by the RIAA and forced to pay thousands of dollars for an activity they thought to be private and anonymous. The Internet “solution” also leaves certain types of artistic creation dependent on the vagaries of the current technology, which may well change, eliminating some of the zone of freedom we currently rely on. But more worrisome is the fact that this “solution” actually confines certain types of art to the world of the Internet.

The video of “George Bush Doesn’t Care About Black People” could be seen by many, but only if they were wired to the right technological and social network. (After all, someone has to tell you to watch.) It was a searing intervention in the national debate on Katrina. But it appeared on no television station. Like most of the mashups created online, the fact that the rights could never be cleared keeps it off mass media. Copyright acts as the barbed wire around mass media outlets. That is a shame, I think. Not because that video is so good—you may love it or hate it. But because this kind of artwork has something important to contribute to our national culture. Imagine a world in which Ray Charles could create “I Got a Woman,” but could only circulate it to a narrow group of the file-trading digerati because of a flagrant violation of Clara Ward’s copyright. Do we still get soul? The blues? Jazz? Or do we just get a precious and insular digital subculture, whose cultural experiments never reach the mainstream?

Throughout his life, Charles described an intimate relationship with his audience, with the public. He described their tastes as a check, as a corrective; he thought they would actually be “ahead” of the artists. He wanted to make songs that would be listened to by tens of millions of people. And he wanted to make art and lots of money. I am all for the person who wants to create as an “amateur-professional” and distribute outside the chains of commerce. I have worked with organizations that make it easier to do this. But I also believe in the power and creativity of commercial culture and political speech carried on mass media. Ironically, our current copyright system serves it poorly.

What is the solution to all of this? The music business runs on compulsory licenses, a legally granted ability to use music in certain ways without permission, though with a fee. The system seems to function pretty well. One solution is to extend that system to the world of mashups and derivative works. If you merely copy the whole of my work and circulate it on file sharing networks or on CDs, we apply the current rules and penalties. If, on the other hand, you make a “derivative” work, mixing your work with mine, then there are two alternatives. If you stay in the world of nonprofit exchange, you get a heightened presumption in favor of fair use (perhaps administered through a quicker and cheaper system of arbitration). If you move into the for-profit world, then you must pay a flat licensing fee or percentage of profits to the copyright holder.

A second solution would be to curtail the hypertrophy of protectionism that made all this happen in the first place. The copyright term could be shortened or we could require renewal every twenty-eight years. (There are international treaties that currently forbid the latter alternative.) We could cut back on excesses like the Bridgeport decision, create incentives to make the music industry less legalistically insistent on policing the most atomic level of creation. We could exempt samples shorter than five seconds from copyright liability, clarify the boundaries of fair use, and extend it beyond parody to other genre-smashing forms such as satire and collage.

There are enormous obstacles to all these proposals. In particular, while artists fare very poorly under the current clearance culture—paying but not receiving the benefits of payments—the middlemen who profit from transaction costs are not keen on abolishing them. Certainly if, as the Bridgeport court assumed, the recording industry is the party responsible for fine-tuning copyright law, we are hardly likely to see any reforms that threaten current modes of doing business. Yet there is a ray of hope. It is getting harder and harder to pretend that the rules ostensibly designed to encourage creativity are actually working. At the same time, more and more people are creating and distributing cultural objects—becoming “subjects” of intellectual property law in the process, often to their dismay and irritation. It is in that conjunction—a far cry from the industry contract envisioned by the Bridgeport court—that hope for the future of copyright law’s treatment of culture might lie

[Back to contents]

Chapter 6: Further Reading

Musical borrowing is the subject of the next “graphic novel”—which is to say comic book—produced by me, Keith Aoki, and Jennifer Jenkins: Theft!: A History of Music (Durham, N.C.: Center for the Study of the Public Domain, forthcoming 2009). Our earlier effort to make intellectual property accessible to film makers and mashup artists can be found in Bound By Law (Durham, N.C.: Center for the Study of the Public Domain, 2006), available in full at http://www.law.duke.edu/cspd/comics. An expanded edition of Bound By Law will be published in the Fall of 2008 by Duke University Press. However, neither graphic novel can provide a sense of the scholarly literature in music, musicology, law, and biography that enabled me to write this chapter.

Musical History

The indispensable guide to music history is J. Peter Burkholder, Donald Jay Grout, and Claude V. Palisca, A History of Western Music, 7th ed. (New York: W. W. Norton, 2006). For those who have access through a university or library the Grove Music database is the single most comprehensive computer-aided source: [recenlty moved to] Oxford Music Online, http://www.oxfordmusiconline.com/public/ [Ed. note: originally published as http://www.grovemusic.com/index.html; link has changed]. A fascinating book by Frederic Scherer, Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries (Princeton, N.J.: Princeton University Press, 2004), explores different incentive systems—such as patronage or markets enabled by intellectual property rights—and their respective effect on musical aesthetics and musical production. Scherer is one of the foremost contemporary economists of innovation. To have him writing about the practices of court composers and manuscript publishers is completely fascinating. At the end of the day, he diplomatically refuses to say whether patronage or market mechanisms produced “better” music but the careful reader will pick up indications of which way he leans.

Musical Borrowing

There is a vast scholarly literature on musical borrowing—indeed the discipline of musicology takes the study of borrowing, in its largest sense, as one of its main organizing themes. Beyond a personal tour provided by Professor Anthony Kelley of Duke University, I found a number of books particularly useful. Burkholder’s History (J. Peter Burkholder, Donald J. Grout, and Claude V. Palisca, A History of Western Music, 7th ed. (New York: W. W. Norton, 2006)) is full of examples of borrowing and influence—whether of style, notation, musical conventions, or melody itself. But it is Burkholder’s book on Charles Ives—that fertile early-twentieth-century borrower—that was most influential: J. Peter Burkholder, All Made of Tunes: Charles Ives and the Uses of Musical Borrowing (New Haven, Conn.: Yale University Press, 1995). Ives’s own thoughts on his mashup of prior American musical forms can be found in Charles Ives, Memos, ed. John Kirkpatrick (New York: W. W. Norton, 1991), 10–25. David Metzer’s Quotation and Cultural Meaning in Twentieth-Century Music (Cambridge: Cambridge University Press, 2003), throws light on the way that quotations or borrowings came to have a particular cultural meaning in different musical traditions. Honey Meconi’s collection Early Musical Borrowing, ed. Honey Meconi (New York: Routledge, 2004), discusses—among many other things—the issue of borrowing between the secular and religious musical traditions, something that helped me work through that issue in this chapter. Finally, “Musical Borrowing: An Annotated Bibliography” (http://www.chmtl.indiana.edu/borrowing/) provides a searchable database of articles about musical borrowing.

Music and Copyright Law

I was particularly influenced by two books and two articles. The books are Kembrew McLeod, Owning Culture: Authorship, Ownership and Intellectual Property Law (New York: Peter Lang, 2001), and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001). McLeod and Vaidhyanathan are the authors who sounded the alarm about the cultural and aesthetic effects of the heavy-handed legal regulation of musical borrowing. Together with the work of Larry Lessig (particularly his writing on the “permissions culture”) Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), their scholarship has defined the field.

The two articles that influenced me the most focus more specifically on the details of the evolution of music on the one hand and music copyright on the other. Both of them are by Michael Carroll: “The Struggle for Music Copyright,” Florida Law Review 57 (2005): 907–961, and “Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property,” University of Cincinnati Law Review 72 (2004): 1405–1496. But these two pieces by no means exhaust the literature. Olufunmilayo Arewa has written memorably on copyright and musical borrowing in “Copyright on Catfish Row: Musical Borrowing, Porgy & Bess and Unfair Use,” Rutgers Law Journal 37 (2006): 277–353, and “From J. C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context,” North Carolina Law Review 84 (2006): 547–645. I also recommend K. J. Greene, “Copyright, Culture & Black Music: A Legacy of Unequal Protection,” Hastings Communications & Entertainment Law Journal 21 (1999): 339–392. There is much, much more. Finally, Joanna Demers’s recent book Steal This Music: How Intellectual Property Law Affects Musical Creativity (Athens: University of Georgia Press, 2006), provides a more comprehensive coverage than I can hope to in a single chapter.

Beyond the scholarly literature, two websites allow you to experiment with these issues online. The History of Sampling created by Jesse Kriss, http://jessekriss.com/projects/samplinghistory/, allows you to explore visually exactly which hip-hop samplers borrowed from which older songs and to trace the process backwards or forwards. Extremely cool. The Copyright Infringement Project, sponsored by the UCLA Intellectual Property Project and Columbia Law School, http://ccnmtl.columbia.edu/projects/law/library/caselist.html, is an extremely useful educational site that gives examples of cases alleging musical copyright infringement, including the relevant sound files. The older version of this project confusingly referred to these cases as “plagiarism” cases—something that judges themselves also frequently do. Plagiarism is the moral, academic, or professional sin of taking ideas, facts or expression and passing them off as your own. If I take the central arguments from your book and completely reword them, or if I present a series of facts you uncovered as an historian and include them in my own book without attribution, you may accuse me of plagiarism, though not of copyright infringement. If I take the words of Shakespeare or Dickens and pass them off as my own, I am committing plagiarism but certainly not copyright infringement, for even under today’s rules those works have long since entered the public domain. If I credit T. S. Eliot but then proceed to reprint the entire of “The Love Song of J. Alfred Prufrock” without the permission of the copyright holders, I am committing copyright infringement, but certainly not plagiarism. At best, plagiarism and copyright infringement overlap to some extent, but each regulates large areas about which the other is indifferent. We sap the strength of both norm systems by confusing them. The new incarnation of the project, at UCLA, has removed the word “plagiarism” from its title.

The People and the Music

A brief biography of Will Lamartine Thompson can be found in C. B. Galbreath, “Song Writers of Ohio (Will Lamartine Thompson),” Ohio Archaeological and Historical Quarterly 14 (January, 1905): 291–312. Since the copyright has expired you can read it in full, and see the picture of Thompson, at http://books.google.com/books?id=3N-WqdvA6T4C&printsec=titlepage#PRA1-PA291,M1.

The best book on Clara Ward is Willa Ward-Royster, Toni Rose, and Horace Clarance Boyer, How I Got Over: Clara Ward and the World Famous Ward Singers (Philadelphia, Penn.: Temple University Press, 1997).

The best biography of Ray Charles is Michael Lydon, Ray Charles: Man and Music (New York: Routledge, 2004). Charles’s autobiography is also a fascinating read. Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story (Cambridge, Mass.: Da Capo Press, 1992). Charles’s website, which contains useful biographical and discographical information, is at www.raycharles.com. There is much more, of course, but these resources provide a good starting place.

There are several hagiographic biographies of Mr. West, but none worth reading. Those who have not already been inundated with information through the popular press could do worse than to start with his rather breathless Wikipedia entry http://en.wikipedia.org/wiki/Kanye_West.

The main source of information on The Legendary K.O.—a name they now use intermittently—is their website is www.k-otix.com. (I am grateful to Mr. Nickerson and Mr. Randle for confirming additional portions of the story by e-mail.) The song “George Bush Doesn’t Like Black People” is no longer available on their website, however an audio version of it is currently available at http://www.ourmedia.org/node/53964. The Black Lantern’s video can be found at http://www.theblacklantern.com/george.html. Franklin Lopez’s video can currently be found at http://www.youtube.com/watch?v=UGRcEXtLpTo. Whether any of those sites will be available in a year’s time is hard to tell. Those who plan to listen or view are reminded that the lyrics are ‘explicit.’

The songs by Clara Ward, Ray Charles, and Kanye West are widely available through a variety of commercial outlets, as are several commercial versions of “Jesus is All the World to Me” by Mr. Thompson.

I would recommend The Clara Ward Singers, Meetin’ Tonight (Vanguard Records, 1994), compact disc. It includes a version of “Meetin’ Tonight: This Little Light of Mine” in which the human limits on the ability to sustain a note are broken repeatedly. Any Ray Charles compilation will feature some of the songs discussed here. The most economical is probably Ray Charles, I’ve Got a Woman & Other Hits by Ray Charles (Rhino Flashback Records, 1997), compact disc. It includes “I Got a Woman” and “This Little Girl of Mine.” Kanye West, Late Registration (Roc-a-Fella Records, 2005), compact disc, contains the full version of “Gold Digger.”

Finally, I would love to be able to play you the full version of the Bailey Gospel Singers “I Got a Savior” (B-Side: “Jesus is the Searchlight”) (Columbia Records, 1951), 78 rpm phonograph record. Unfortunately, given the legal uncertainties I am forbidden from doing so, and I know of no licit way—for free or for pay—that you can listen to it, short of traveling to the Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts yourself and asking to hear the original 78. Perhaps that simple fact is the most elegant encapsulation of my argument here.

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Chapter 7:

The Enclosure of Science and Technology: Two Case Studies

Over the last forty years, much has changed in the way that scientific research and technological development are organized, funded, and institutionally arranged. Much has also changed in the type of scientific and technical material that is covered by intellectual property rights, the ways that material is covered, the parties who hold the rights, and the state of research and development at which rights claims are made. Many academics who study both science’s organizational structure and the intellectual property claims that surround it are concerned about the results. To say this is not to conjure up a tragically lost world of pure research science, untainted by property claims or profit motives. That world never existed and it is probably a good thing too. Intellectual property rights, and the profit motive more generally, have a vital and beneficial role in moving innovations from lab bench to bedside, from computer simulation to actual flight. The question is not whether intellectual property rights are useful as part of scientific and technological development. The question is what type of rights they should be, where in the research process those rights are best deployed, how they should coexist with state funded basic scientific and technological research, how broad they should be, how they should deal with new technologies, how long they should last, how they should treat follow-on innovations.

I cannot hope here to answer all those questions, though some fascinating research has begun the process. Instead, as with the music chapter, I will offer a case study—actually two case studies—that try to illuminate the process I am describing, to illustrate its pitfalls and its strange and unintended consequences.

The two defining technologies of the last thirty years are biotechnology and the networked computer. Each is both product and platform. Innovations themselves, they are also constitutive technologies that enable still more innovations. But at several historical moments in the development of each we came perilously close to breaking technology with law.[1] Some would say that it was not just a close shave: we actually have hampered or limited the full potential of technology, slowing down its dynamism with a host of overbroad software patents, gene patents, and materials transfer agreements. Others are more optimistic. They think that a series of rapid improvisations by courts, scientists, programmers, and businesspeople has largely mitigated any problems caused by the process of legal expansion.[2] But if mistakes were made, it is important to know what they were lest we continue or repeat them. If there were “fixes,” it is important to know if they can be replicated.

So were there mistakes? If so, have they been fixed, and how? Drawing on an article I co-wrote with my brilliant colleague Arti Rai,[3] this chapter suggests some answers to those questions by sketching out some details of the legal history of those technologies, concluding with a discussion of a single promising new technology that shares aspects of both—synthetic biology. The answers are important. Behind the abstract words “innovation” or “technological development” there are lives saved or lost, communicative freedoms expanded or contracted, communities enabled or stunted, wealth generated or not. The subject would benefit from informed, sophisticated, democratic attention. It is not something you want to leave a host of lawyers and lobbyists to decide among themselves.

A Machine that Contains All Other Machines

Imagine a person staring at an infinite roll of paper tape. On the paper are symbols in some alphabet or number system. The reader carries out simple, The Enclosure of Science and Technology operable instructions on the basis of that data. “Add together the next two digits you are presented with and write down the answer. If the answer is odd, go to step 2. If the answer is even, go to step 3.” Now replace the person with a mechanical head that can “read” the instructions, carry out the desired operations, and write the answer down. The British mathematician Alan Turing imagined something like this—a little more complicated, perhaps, but fairly similar. What is it? We have the reading head, the set of instructions, the data on which the instructions are to be performed, the record of the result, and some kind of “state table” that tells the machine where it is in the process. These are the component parts of Turing machines—or as we know them better, computers. More accurately, Turing machines are a method of simulating the operation of computers, a metaphor that enables us to imitate their logical processes. In the words of Wikipedia, “despite their simplicity—[they] can be adapted to simulate the logic of any computer that could possibly be constructed.” And to give lawyers fits. But that is getting ahead of ourselves.

In Greek mythology, Procrustes had a bed to which he fitted its prospective occupants, whether they liked it or not. The tall were trimmed down. The short stretched on the rack. Intellectual property lawyers have many similarities to Procrustes. The technologies that are brought before them are made to fit the conceptual boxes the law provides, boxes with names such as “copyright” and “patent.” Occasionally, new conceptual boxes are made, but—for very good reasons—most of the time we stick with the boxes we have. As with Procrustes, things do not always fit and the process can be distressing for its subjects.

It is important to realize that the process of trimming and stretching can be done well or badly. If it is done really badly, the technology is stunted, deformed, even destroyed. If it is done well, the law aids the development of the technology in exactly the happy way described in Chapter 1. What did our Procrustean legal system do with computers and computer science?

I will focus on software—the set of instructions the machine is to perform. How should we think of it? Software is written down by programmers. It is recorded first in a form readable to humans, or at least geeks. Then, through a series of transformations, it is turned into the machine code, the ones and zeros that will operate the computer. But at its root it can be understood through the metaphor of the simple list of instructions to be carried out in order, just as with the Turing machine and its infinite tape.

How should we fit software into the categories of intellectual property? We have “writing,” fixation in some medium of symbols that can be read by others—both machine and human. Writing is normally the domain of copyright. Are computer programs copyrightable? All kinds of problems present themselves. At least in the United States, copyright covers expression. As I pointed out in a previous book, at its base is the conception of the romantic author impressing her uniqueness of spirit on the work at the moment of writing. It is that expressive choice, not the facts or ideas on which the work is based, that copyright covers. And it is only original expression that copyright covers. It does not cover purely functional objects, systems, processes, or methods of operation. One cannot copyright the coat hanger, the mousetrap, or long division. One cannot even copyright a “sculpture” if the main function of its design is to serve as a bicycle rack. Admittedly, one can copyright some expressive works that serve a practical purpose. A book about how to do double-entry bookkeeping is copyrightable. Yet copyright covers only the expressive choices used in selecting the words to explain the method, and the images to represent it, not the methods it describes or the facts or ideas it contains. Can copyright cover computer programs? Should we see them as copyrightable how-to books or as uncopyrightable machines made of words?

Machines and other functional innovations are normally the domain of patent rights. One can patent the mousetrap, and then one gets an exclusive right to the actual mechanically enabled method of catching mice, not just the artistic flourishes on the blueprint. Patents have more demanding criteria than copyrights. The invention needs to be novel and have utility, or usefulness; I cannot get a patent over something that would have been an obvious idea to an insider in the relevant field of technology, a “person having ordinary skill in the art,” or PHOSITA, in the jargon of patent lawyers. But once I get my patent, it gives me a very strong power to exclude others from the invention—even if they came up with it independently. The right lasts for twenty years. Follow-on innovators who improve on my idea can get a patent on that improvement. They can block me from using the improvement. I can block them from using the original invention. Thus we have an incentive to negotiate if either of us wants to bring the improved innovation to market.

So where did software fit? Was it copyrightable writing or patentable invention? There are two issues here. The first is whether there should be any intellectual property rights over software at all. The basic case for that proposition is simple, a classic example of the public goods problem described in the first chapter. Software costs money to create, but is cheap to copy. When a youthful The Enclosure of Science and Technology Bill Gates wrote his 1976 letter to

James Boyle

ThePublicDomain

Enclosing the Commons of the Mind

Contents

Acknowledgments

Preface: Comprised of at Least Jelly?

Chapter 1:

Why Intellectual Property?

You’ll Get My Library of Congress When . . .

Chapter 1: Further Reading

Chapter 2:

Thomas Jefferson Writes a Letter

The Jefferson Warning

A Natural Right?

A Tradition of Skeptical Minimalism

Chapter 2: Further Reading

Chapter 3:

The Second Enclosure Movement

How Much of the Intangible Commons Should We Enclose?

Chapter 3: Further Reading

Chapter 4:

The Internet Threat

The Logic of Perfect Control

Costless Copying Brings Both Costs and Benefits

The Holes Matter as Much as the Cheese

From Napster to Grokster

Chapter 4: Further Reading

Chapter 5:

The Farmers’ Tale: An Allegory

Between Paranoia and Reality: The DMCA

Infectious Speech: The DMCA and Freedom of Expression

The Apple of Forbidden Knowledge:The DMCA and Competition

Summing Up: Exaggerations, Half-Truths, and Bipolar Disorders in Technology Policy

Chapter 5: Further Reading

The DMCA and DRM

The DMCA and Freedom of Expression

Chapter 6:

I Got a Mashup

I Got A Woman

An Industry of Gold Diggers

George Bush Doesn’t Care . . .

Sampling

Conclusion

Chapter 6: Further Reading

Musical History

Musical Borrowing

Music and Copyright Law

The People and the Music

Chapter 7:

The Enclosure of Science and Technology: Two Case Studies

A Machine that Contains All Other Machines

The
Public
Domain

The Apple of Forbidden Knowledge:
The DMCA and Competition