[21] See “Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some Methods Used,” CNN.com, available at link #47.
[22] See Jeff Adler, “Cambridge: On Campus, Pirates Are Not Penitent,” Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, “Four Students Sued over Music Sites; Industry Group Targets File Sharing at Colleges,” Washington Post, 4 April 2003, E1; Elizabeth Armstrong, “Students 'Rip, Mix, Burn' at Their Own Risk,” Christian Science Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, “Music Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over; Lawsuit Possible,” Chicago Tribune, 16 July 2003, 1C; Beth Cox, “RIAA Trains Antipiracy Guns on Universities,” Internet News, 30 January 2003, available at link #48; Benny Evangelista, “Download Warning 101: Freshman Orientation This Fall to Include Record Industry Warnings Against File Sharing,” San Francisco Chronicle, 11 August 2003, E11; “Raid, Letters Are Weapons at Universities,” USA Today, 26 September 2000, 3D.
CHAPTER THIRTEEN: ELDRED
[1] There's a parallel here with pornography that is a bit hard to describe, but it's a strong one. One phenomenon that the Internet created was a world of noncommercial pornographers-people who were distributing porn but were not making money directly or indirectly from that distribution. Such a class didn't exist before the Internet came into being because the costs of distributing porn were so high. Yet this new class of distributors got special attention in the Supreme Court, when the Court struck down the Communications Decency Act of 1996. It was partly because of the burden on noncommercial speakers that the statute was found to exceed Congress's power. The same point could have been made about noncommercial publishers after the advent of the Internet. The Eric Eldreds of the world before the Internet were extremely few. Yet one would think it at least as important to protect the Eldreds of the world as to protect noncommercial pornographers.
[2] The full text is: “Sonny [Bono] wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress,” 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
[3] Associated Press, “Disney Lobbying for Copyright Extension No Mickey Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,” Chicago Tribune, 17 October 1998, 22.
[4] See Nick Brown, “Fair Use No More?: Copyright in the Information Age,” available at link #49.
[5] Alan K. Ota, “Disney in Washington: The Mouse That Roars,” Congressional Quarterly This Week, 8 August 1990, available at link #50.
[6] United States v. Lopez, 514 U.S. 549, 564 (1995).
[7] United States v. Morrison, 529 U.S. 598 (2000).
[8] If it is a principle about enumerated powers, then the principle carries from one enumerated power to another. The animating point in the context of the Commerce Clause was that the interpretation offered by the government would allow the government unending power to regulate commerce-the limitation to interstate commerce notwithstanding. The same point is true in the context of the Copyright Clause. Here, too, the government's interpretation would allow the government unending power to regulate copyrights-the limitation to “limited times” notwithstanding.
[9] Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), n.10, available at link #51.
[10] The figure of 2 percent is an extrapolation from the study by the Congressional Research Service, in light of the estimated renewal ranges. See Brief of Petitioners, Eldred v. Ashcroft, 7, available at link #52.
[11] See David G. Savage, “High Court Scene of Showdown on Copyright Law,” Los Angeles Times, 6 October 2002; David Streitfeld, “Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking Down Copyright Extension,” Orlando Sentinel Tribune, 9 October 2002.
[12] Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet Archive, Eldred v. Ashcroft, available at link #53.
[13] Jason Schultz, “The Myth of the 1976 Copyright 'Chaos' Theory,” 20 December 2002, available at link #54.
[14] Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618), 19.
[15] Dinitia Smith, “Immortal Words, Immortal Royalties? Even Mickey Mouse Joins the Fray,” New York Times, 28 March 1998, B7.
CHAPTER FOURTEEN: ELDRED II
[1] Until the 1908 Berlin Act of the Berne Convention, national copyright legislation sometimes made protection depend upon compliance with formalities such as registration, deposit, and affixation of notice of the author's claim of copyright. However, starting with the 1908 act, every text of the Convention has provided that “the enjoyment and the exercise” of rights guaranteed by the Convention “shall not be subject to any formality.” The prohibition against formalities is presently embodied in Article 5(2) of the Paris Text of the Berne Convention. Many countries continue to impose some form of deposit or registration requirement, albeit not as a condition of copyright. French law, for example, requires the deposit of copies of works in national repositories, principally the National Museum. Copies of books published in the United Kingdom must be deposited in the British Library. The German Copyright Act provides for a Registrar of Authors where the author's true name can be filed in the case of anonymous or pseudonymous works. Paul Goldstein, International Intellectual Property Law, Cases and Materials (New York: Foundation Press, 2001), 153-54.
CONCLUSION
[1] Commission on Intellectual Property Rights, “Final Report: Integrating Intellectual Property Rights and Development Policy” (London, 2002), available at link #55. According to a World Health Organization press release issued 9 July 2002, only 230,000 of the 6 million who need drugs in the developing world receive them-and half of them are in Brazil.
[2] See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
[3] International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization (Washington, D.C., 2000), 14, available at link #56. For a firsthand account of the struggle over South Africa, see Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150-57 (statement of James Love).
[4] International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared for the World Intellectual Property Organization (Washington, D.C., 2000), 15.
[5] See Sabin Russell, “New Crusade to Lower AIDS Drug Costs: Africa's Needs at Odds with Firms' Profit Motive,” San Francisco Chronicle, 24 May 1999, A1, available at link #57 (“compulsory licenses and gray markets pose a threat to the entire system of intellectual property protection”); Robert Weissman, “AIDS and Developing Countries: Democratizing Access to Essential Medicines,” Foreign Policy in Focus 4:23 (August 1999), available at link #58 (describing U.S. policy); John A. Harrelson, “TRIPS, Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property Rights and Compassion, a Synopsis,” Widener Law Symposium Journal (Spring 2001): 175.
[6] Jonathan Krim, “The Quiet War over Open-Source,” Washington Post, 21 August 2003, E1, available at link #59; William New, “Global Group's Shift on 'Open Source' Meeting Spurs Stir,” National Journal's Technology Daily, 19 August 2003, available at link #60; William New, “U.S. Official Opposes 'Open Source' Talks at WIPO,” National Journal's Technology Daily, 19 August 2003, available
at link #61.
[7] I should disclose that I was one of the people who asked WIPO for the meeting.
[8] Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with “open source” software or software in the public domain. Microsoft's principal opposition is to “free software” licensed under a “copyleft” license, meaning a license that requires the licensee to adopt the same terms on any derivative work. See Bradford L. Smith, “The Future of Software: Enabling the Marketplace to Decide,” Government Policy Toward Open Source Software (Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, American Enterprise Institute for Public Policy Research, 2002), 69, available at link #62. See also Craig Mundie, Microsoft senior vice president, The Commercial Software Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63.
[9] Krim, “The Quiet War over Open-Source,” available at link #64.
[10] See Drahos with Braithwaite, Information Feudalism, 210-20.
[11] John Borland, “RIAA Sues 261 File Swappers,” CNET News.com, 8 September 2003, available at link #65; Paul R. La Monica, “Music Industry Sues Swappers,” CNN/Money, 8 September 2003, available at link #66; Soni Sangha and Phyllis Furman with Robert Gearty, “Sued for a Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,” New York Daily News, 9 September 2003, 3; Frank Ahrens, “RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,” Washington Post, 10 September 2003, E1; Katie Dean, “Schoolgirl Settles with RIAA,” Wired News, 10 September 2003, available at link #67.
[12] Jon Wiederhorn, “Eminem Gets Sued. . . by a Little Old Lady,” mtv.com, 17 September 2003, available at link #68.
[13] Kenji Hall, Associated Press, “Japanese Book May Be Inspiration for Dylan Songs,” Kansascity.com, 9 July 2003, available at link #69.
[14] “BBC Plans to Open Up Its Archive to the Public,” BBC press release, 24 August 2003, available at link #70.
[15] “Creative Commons and Brazil,” Creative Commons Weblog, 6 August 2003, available at link #71.
US, NOW
[1] See, for example, Marc Rotenberg, “Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get),” Stanford Technology Law Review 1 (2001): par. 6-18, available at link #72 (describing examples in which technology defines privacy policy). See also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: Random House, 2004) (mapping tradeoffs between technology and privacy).
[2] Willful Infringement: A Report from the Front Lines of the Real Culture Wars (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre production, available at link #72.
THEM, SOON
[1] The proposal I am advancing here would apply to American works only. Obviously, I believe it would be beneficial for the same idea to be adopted by other countries as well.
[2] There would be a complication with derivative works that I have not solved here. In my view, the law of derivatives creates a more complicated system than is justified by the marginal incentive it creates.
[3] “A Radical Rethink,” Economist, 366:8308 (25 January 2003): 15, available at link #74.
[4] Department of Veterans Affairs, Veteran's Application for Compensation and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at link #75.
[5] Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967), 32.
[6] Ibid., 56.
[7] Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stanford: Stanford University Press, 2003), 187-216.
[8] See, for example, “Music Media Watch,” The J@pan Inc. Newsletter, 3 April 2002, available at link #76.
[9] William Fisher, Digital Music: Problems and Possibilities (last revised: 10 October 2000), available at link #77; William Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available at link #78. Professor Netanel has proposed a related idea that would exempt noncommercial sharing from the reach of copyright and would establish compensation to artists to balance any loss. See Neil Weinstock Netanel, “Impose a Noncommercial Use Levy to Allow Free P2P File Sharing,” available at link #79. For other proposals, see Lawrence Lessig, “Who's Holding Back Broadband?” Washington Post, 8 January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations Committee, 26 February 2002, available at link #80; Serguei Osokine, A Quick Case for Intellectual Property Use Fee (IPUF), 3 March 2002, available at link #81; Jefferson Graham, “Kazaa, Verizon Propose to Pay Artists Directly,” USA Today, 13 May 2002, available at link #82; Steven M. Cherry, “Getting Copyright Right,” IEEE Spectrum Online, 1 July 2002, available at link #83; Declan Mc-Cullagh, “Verizon's Copyright Campaign,” CNET News.com, 27 August 2002, available at link #84. Fisher's proposal is very similar to Richard Stallman's proposal for DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly proportionally, though more popular artists would get more than the less popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85.
[10] Lawrence Lessig, “Copyright's First Amendment” (Melville B. Nimmer Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069-70.
[11] A good example is the work of Professor Stan Liebowitz. Liebowitz is to be commended for his careful review of data about infringement, leading him to question his own publicly stated position-twice. He initially predicted that downloading would substantially harm the industry. He then revised his view in light of the data, and he has since revised his view again. Compare Stan J. Liebowitz, Rethinking the Network Economy: The True Forces That Drive the Digital Marketplace (New York: Amacom, 2002), 173 (reviewing his original view but expressing skepticism) with Stan J. Liebowitz, “Will MP3s Annihilate the Record Industry?” working paper, June 2003, available at link #86. Liebowitz's careful analysis is extremely valuable in estimating the effect of file-sharing technology. In my view, however, he underestimates the costs of the legal system. See, for example, Rethinking, 174-76.
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