[3] Marc Wanamaker, “The First Studios,” The Silents Majority, archived at link #12.
[4] To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hack- ensack, N.J.: Rothman Reprints, 1976).
[5] To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of Nathan Burkan, attorney for the Music Publishers Association).
[6] To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of Nathan Burkan, attorney for the Music Publishers Association).
[7] To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer).
[8] To Amend and Consolidate the Acts Respecting Copyright, 283-84 (statement of Albert Walker, representative of the Auto-Music Perforating Company of New York).
[9] To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association).
[10] Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
[11] Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on the Judiciary, 90th Cong., 1st sess., House Document no. 83, 66 (8 March 1967). I am grateful to Glenn Brown for drawing my attention to this report.
[12] See 17 United States Code, sections 106 and 110. At the beginning, record companies printed “Not Licensed for Radio Broadcast” and other messages purporting to restrict the ability to play a record on a radio station. Judge Learned Hand rejected the argument that a warning attached to a record might restrict the rights of the radio station. See RCA Manufacturing Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, “From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright,” University of Chicago Law Review 70 (2003): 281.
[13] Copyright Law Revision-CATV: Hearing on S. 1006 Before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel H. Hyde, chairman of the Federal Communications Commission).
[14] Copyright Law Revision-CATV, 116 (statement of Douglas A. Anello, general counsel of the National Association of Broadcasters).
[15] Copyright Law Revision-CATV, 126 (statement of Ernest W. Jennes, general counsel of the Association of Maximum Service Telecasters, Inc.).
[16] Copyright Law Revision-CATV, 169 (joint statement of Arthur B. Krim, president of United Artists Corp., and John Sinn, president of United Artists Television, Inc.).
[17] Copyright Law Revision-CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild).
[18] Copyright Law Revision-CATV, 216 (statement of Edwin M. Zimmerman, acting assistant attorney general).
[19] See, for example, National Music Publisher's Association, The Engine of Free Expression: Copyright on the Internet-The Myth of Free Information, available at link #13. “The threat of piracy-the use of someone else's creative work without permission or compensation-has grown with the Internet.”
CHAPTER FIVE: “PIRACY”
[1] See IFPI (International Federation of the Phonographic Industry), The Recording Industry Commercial Piracy Report 2003, July 2003, available at link #14. See also Ben Hunt, “Companies Warned on Music Piracy Risk,” Financial Times, 14 February 2003, 11.
[2] See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 10-13, 209. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement obligates member nations to create administrative and enforcement mechanisms for intellectual property rights, a costly proposition for developing countries. Additionally, patent rights may lead to higher prices for staple industries such as agriculture. Critics of TRIPS question the disparity between burdens imposed upon developing countries and benefits conferred to industrialized nations. TRIPS does permit governments to use patents for public, noncommercial uses without first obtaining the patent holder's permission. Developing nations may be able to use this to gain the benefits of foreign patents at lower prices. This is a promising strategy for developing nations within the TRIPS framework.
[3] For an analysis of the economic impact of copying technology, see Stan Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), 144-90. “In some instances. . . the impact of piracy on the copyright holder's ability to appropriate the value of the work will be negligible. One obvious instance is the case where the individual engaging in pirating would not have purchased an original even if pirating were not an option.” Ibid., 149.
[4] Bach v. Longman, 98 Eng. Rep. 1274 (1777).
[5] See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (New York: HarperBusiness, 2000). Professor Christensen examines why companies that give rise to and dominate a product area are frequently unable to come up with the most creative, paradigm-shifting uses for their own products. This job usually falls to outside innovators, who reassemble existing technology in inventive ways. For a discussion of Christensen's ideas, see Lawrence Lessig, Future, 89-92, 139.
[6] See Carolyn Lochhead, “Silicon Valley Dream, Hollywood Nightmare,” San Francisco Chronicle, 24 September 2002, A1; “Rock 'n' Roll Suicide,” New Scientist, 6 July 2002, 42; Benny Evangelista, “Napster Names CEO, Secures New Financing,” San Francisco Chronicle, 23 May 2003, C1; “Napster's Wake-Up Call,” Economist, 24 June 2000, 23; John Naughton, “Hollywood at War with the Internet” (London) Times, 26 July 2002, 18.
[7] See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution (September 2002), reporting that 28 percent of Americans aged twelve and older have downloaded music off of the Internet and 30 percent have listened to digital music files stored on their computers.
[8] Amy Harmon, “Industry Offers a Carrot in Online Music Fight,” New York Times, 6 June 2003, A1.
[9] See Liebowitz, Rethinking the Network Economy,148-49.
[10] See Cap Gemini Ernst & Young, Technology Evolution and the Music Industry's Business Model Crisis (2003), 3. This report describes the music industry's effort to stigmatize the budding practice of cassette taping in the 1970s, including an advertising campaign featuring a cassette-shape skull and the caption “Home taping is killing music.” At the time digital audio tape became a threat, the Office of Technical Assessment conducted a survey of consumer behavior. In 1988, 40 percent of consumers older than ten had taped music to a cassette format. U.S. Congress, Office of Technology Assessment, Copyright and Home Copying: Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October 1989), 145-56.
[11] U.S. Congress, Copyright and Home Copying, 4.
[12] See Recording Industry Association of America, 2002 Yearend Statistics, available at link #15. A later report indicates even greater losses. See Recording Industry Association of America, Some Facts About Music Piracy, 25 June 2003, available at link #16: “In the past four years, unit shipments of recorded music have fallen by 26 percent from 1.16 billion units in 1999 to 860 million units in 2002 in the United States (based on units shipped). In terms of sales, revenues are down 14 percent, from $14.6 billion in 1999 to $12.6 billion last year (based on U.S. dollar value of shipments). The music industry worldwide has gone from a $39 billion industry in 2000 down to a $32 billion industry in 2002 (based on U.S. dollar value of shipments).”
[13] Jane Black, “Big Music's Broken Record,” BusinessWeek o
nline, 13 February 2003, available at link #17.
[14] Ibid.
[15] By one estimate, 75 percent of the music released by the major labels is no longer in print. See Online Entertainment and Copyright Law-Coming Soon to a Digital Device Near You: Hearing Before the Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared statement of the Future of Music Coalition), available at link #18.
[16] While there are not good estimates of the number of used record stores in existence, in 2002, there were 7,198 used book dealers in the United States, an increase of 20 percent since 1993. See Book Hunter Press, The Quiet Revolution: The Expansion of the Used Book Market (2002), available at link #19. Used records accounted for $260 million in sales in 2002. See National Association of Recording Merchandisers, “2002 Annual Survey Results,” available at link #20.
[17] See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at link #21. For an account of the litigation and its toll on Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn Fanning's Napster (New York: Crown Business, 2003), 269-82.
[18] Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture Association of America, Inc.).
[19] Copyright Infringements (Audio and Video Recorders), 475.
[20] Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, 438 (C.D. Cal., 1979).
[21] Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack Valenti).
[22] Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir. 1981).
[23] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
[24] These are the most important instances in our history, but there are other cases as well. The technology of digital audio tape (DAT), for example, was regulated by Congress to minimize the risk of piracy. The remedy Congress imposed did burden DAT producers, by taxing tape sales and controlling the technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not eliminate the opportunity for free riding in the sense I've described. See Lessig, Future, 71. See also Picker, “From Edison to the Broadcast Flag,” University of Chicago Law Review 70 (2003): 293-96.
[25] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984).
[26] John Schwartz, “New Economy: The Attack on Peer-to-Peer Software Echoes Past Efforts,” New York Times, 22 September 2003, C3.
“PROPERTY”
[1] Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333-34.
[2] As the legal realists taught American law, all property rights are intangible. A property right is simply a right that an individual has against the world to do or not do certain things that may or may not attach to a physical object. The right itself is intangible, even if the object to which it is (metaphorically) attached is tangible. See Adam Mossoff, “What Is Property? Putting the Pieces Back Together,” Arizona Law Review 45 (2003): 373, 429 n. 241.
CHAPTER SIX: FOUNDERS
[1] Jacob Tonson is typically remembered for his associations with prominent eighteenth-century literary figures, especially John Dryden, and for his handsome “definitive editions” of classic works. In addition to Romeo and Juliet, he published an astonishing array of works that still remain at the heart of the English canon, including collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See Keith Walker, “Jacob Tonson, Bookseller,” American Scholar 61:3 (1992): 424-31.
[2] Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968), 151-52.
[3] As Siva Vaidhyanathan nicely argues, it is erroneous to call this a “copy- right law.” See Vaidhyanathan, Copyrights and Copywrongs, 40.
[4] Philip Wittenberg, The Protection and Marketing of Literary Property (New York: J. Messner, Inc., 1937), 31.
[5] A Letter to a Member of Parliament concerning the Bill now depending in the House of Commons, for making more effectual an Act in the Eighth Year of the Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618).
[6] Lyman Ray Patterson, “Free Speech, Copyright, and Fair Use,” Vanderbilt Law Review 40 (1987): 28. For a wonderfully compelling account, see Vaidhyanathan, 37-48.
[7] For a compelling account, see David Saunders, Authorship and Copyright (London: Routledge, 1992), 62-69.
[8] Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), 92.
[9] Ibid., 93.
[10] Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting Borwell).
[11] Howard B. Abrams, “The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright,” Wayne Law Review 29 (1983): 1152.
[12] Ibid., 1156.
[13] Rose, 97.
[14] Ibid.
CHAPTER SEVEN: RECORDERS
[1] For an excellent argument that such use is “fair use,” but that lawyers don't permit recognition that it is “fair use,” see Richard A. Posner with William F. Patry, “Fair Use and Statutory Reform in the Wake of Eldred ” (draft on file with author), University of Chicago Law School, 5 August 2003.
CHAPTER EIGHT: TRANSFORMERS
[1] Technically, the rights that Alben had to clear were mainly those of publicity-rights an artist has to control the commercial exploitation of his image. But these rights, too, burden “Rip, Mix, Burn” creativity, as this chapter evinces.
[2] U.S. Department of Commerce Office of Acquisition Management, Seven Steps to Performance-Based Services Acquisition, available at link #22.
CHAPTER NINE: COLLECTORS
[1] The temptations remain, however. Brewster Kahle reports that the White House changes its own press releases without notice. A May 13, 2003, press release stated, “Combat Operations in Iraq Have Ended.” That was later changed, without notice, to “Major Combat Operations in Iraq Have Ended.” E-mail from Brewster Kahle, 1 December 2003.
[2] Doug Herrick, “Toward a National Film Collection: Motion Pictures at the Library of Congress,” Film Library Quarterly 13 nos. 2-3 (1980): 5; Anthony Slide, Nitrate Won't Wait: A History of Film Preservation in the United States ( Jefferson, N.C.: McFarland & Co., 1992), 36.
[3] Dave Barns, “Fledgling Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by Adopting Business,” Chicago Tribune, 5 September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, “The First Sale Doctrine in the Era of Digital Networks,” Boston College Law Review 44 (2003): 593 n. 51.
CHAPTER TEN: “PROPERTY”
[1] Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary of the House of Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti).
[2] Lawyers speak of “property” not as an absolute thing, but as a bundle of rights that are sometimes associated with a particular object. Thus, my “property right” to my car gives me the right to exclusive use, but not the right to drive at 150 miles an hour. For the best effort to connect the ordinary meaning of “property” to “lawyer talk,” see Bruce Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977), 26
-27.
[3] By describing the way law affects the other three modalities, I don't mean to suggest that the other three don't affect law. Obviously, they do. Law's only distinction is that it alone speaks as if it has a right self-consciously to change the other three. The right of the other three is more timidly expressed. See Lawrence Lessig, Code: And Other Laws of Cyberspace (New York: Basic Books, 1999): 90-95; Lawrence Lessig, “The New Chicago School,” Journal of Legal Studies, June 1998.
[4] Some people object to this way of talking about “liberty.” They object because their focus when considering the constraints that exist at any particular moment are constraints imposed exclusively by the government. For instance, if a storm destroys a bridge, these people think it is meaningless to say that one's liberty has been restrained. A bridge has washed out, and it's harder to get from one place to another. To talk about this as a loss of freedom, they say, is to confuse the stuff of politics with the vagaries of ordinary life. I don't mean to deny the value in this narrower view, which depends upon the context of the inquiry. I do, however, mean to argue against any insistence that this narrower view is the only proper view of liberty. As I argued in Code, we come from a long tradition of political thought with a broader focus than the narrow question of what the government did when. John Stuart Mill defended freedom of speech, for example, from the tyranny of narrow minds, not from the fear of government prosecution; John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. John R. Commons famously defended the economic freedom of labor from constraints imposed by the market; John R. Commons, “The Right to Work,” in Malcom Rutherford and Warren J. Samuels, eds., John R. Commons: Selected Essays (London: Routledge: 1997), 62. The Americans with Disabilities Act increases the liberty of people with physical disabilities by changing the architecture of certain public places, thereby making access to those places easier; 42 United States Code, section 12101 (2000). Each of these interventions to change existing conditions changes the liberty of a particular group. The effect of those interventions should be accounted for in order to understand the effective liberty that each of these groups might face.
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