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EARLY DRAFT Add your comment on this item1

Sharing and Stealing Add your comment on this item2

Jessica Litman* Add your comment on this item3

 

 

 

The purpose of copyright is to encourage the creation and mass dissemination of a wide variety of works. Until recently, most means of mass dissemination required a significant capital investment. Disseminators needed printing presses, trains or trucks, warehouses, broadcast towers, or communications satellites. It made economic sense to channel the lion’s share of the proceeds of copyrights to the publishers and distributors, and the law was designed to facilitate that.[1] Digital distribution raises the possibility of mass dissemination without the assistance of professional distributors, via direct author-to-consumer and consumer-to-consumer dissemination. Digital distribution, thus, invites us to reconsider the assumptions underlying the conventional copyright model.  Add your comment on this item4

We are still in the early history of the networked digital environment, but already we’ve seen experiments with both direct and consumer-to-consumer distribution of works of authorship. Direct author distribution – by itself – has not yet garnered a lot of attention because the most publicized efforts have been less than wholly successful.[2] When direct author distribution is augmented by consumer-to-consumer distribution, though, the combination has the potential to revolutionize the distribution chain. That potential has not escaped the attention of professional distributors. Consumer-to-consumer dissemination, especially in the form of peer-to-peer file sharing, has been met with hostility and panic. Legislation pending in Congress seeks to deter consumers from engaging in peer-to-peer file sharing.[3] Meanwhile, representatives of the music, recording and file industry have sued the purveyors of peer-to-peer file sharing software,[4] the Internet service providers who enable consumers to trade files,[5] and 341 individual consumers accused of making recorded music available to other consumers over the Internet.[6]View comments on this item Add your comment on this item5

In this paper, I propose that we look for some of the answers to the vexing problem of unauthorized exchange of music files on the Internet in the wisdom intellectual property law has accumulated about the protection and distribution of factual information. In particular, I analyze the digital information resource that has developed on the Internet, and suggest that what we should be trying to achieve is an online musical smorgasbord of comparable breadth and variety.  Add your comment on this item6

Ten years ago, an influential government task force proposed enhancing the scope of intellectual property rights in the digital environment as a device to encourage investment in the infrastructure underlying a national digital network. [7] As the task force explained, the cost of constructing such a network was beyond the federal government’s ability to fund, and the construction would need to be undertaken by the private sector. The private sector, however, would be reluctant to invest its resources unless it saw profits to be made. The network would be commercial only if large numbers of people could be persuaded to subscribe to digital network services, which would require a killer application to draw people online. In the view of the task force, that application was the possibility consumers could enjoy movies, music and other content on demand. Enhanced copyright protection would be needed to persuade the producers of movies, music and other content to make the investment in making their material available over the national digital network. In order to create a viable online information and entertainment resource, the task force concluded, the United States needed to promise the distributors of copyrighted works a larger share of the copyright pie – only then would they invest the resources needed to develop digital content that would be sufficiently compelling that ordinary consumers would want it enough to pay for Internet access.[8] With the benefit of hindsight, it’s become clear that most of the assumptions underlying that argument were wrong. View comments on this item Add your comment on this item7

Greatly expanded copyright has not yet encouraged movies or music online – there is an enormous variety of music and movies available over the Internet, but the overwhelming majority of what’s there is there over the vehement objections of the content owners. Nonetheless, the network has grown at an unbelievable rate. The killer application that fueled the growth of the Internet wasn’t digital movies, after all. Instead, it was communication – email, chat, online forums and personal web pages. It turns out that people want to communicate with one another, and that they love to share. The information space that has grown up on the world wide web is largely the result of anarchic volunteerism – not to build the pipes, which have been constructed by telephone and cable companies to meet consumer demand for broadband Internet access,[9] but to supply the information that runs through them. Anecdotal evidence indicates that at least for some material, untamed digital sharing turns out to be a more efficient method of distribution than either paid subscription or the sale of conventional copies. If untamed anarchic digital sharing is a superior distribution mechanism, or even a useful adjunct to conventional distribution, we ought to encourage it rather than making it more difficult. Add your comment on this item8

Part I of this essay explores the burgeoning digital information space that has grown up on the Internet in the last two decades. In part II, I review the legal obstacles preventing us from simply treating digital music the way we treat digital information. Amendments to the copyright law enacted over the past 30 years have erected legal barriers to consumer-to-consumer distribution that make lawful exchange of copyrighted material extremely difficult. Part III tells a true story about my son’s third grade classroom, and spends a brief moment looking at his teacher’s use of the resources she finds on the Internet. Part IV suggests that we look to the digital information space described in Part I as a model for crafting a solution to the controversy over peer-to-peer file sharing, and reviews some of the proposals made in recent copyright scholarship. Finally, Part V briefly outlines a particular solution that is in some respects different from those discussed earlier.View comments on this item Add your comment on this item9

I. Someone knows what I want to know Add your comment on this item10

Someone knows what I want to know. Someone has the information I want. If I can find her, I can learn it from her. She will share it with me. Add your comment on this item11

Which came first, the computer or network television?[10] Add your comment on this item12

I could try to find the answer in a reference book instead. On my bookshelf, I have two editions of the Encyclopedia Britannica, one published in 1989 and one assembled at a public library used-book sale from individual volumes published in 1964 and 1966. I no longer consult either of them with any frequency. In a jewel case somewhere near my desk, I have a multimedia CD ROM version of the Britannica that I received as a gift in 1998. I never look at it at all, and haven’t since the month that I received it. I used to buy an Almanac each year to look up quick facts (what’s the population of New Zealand?[11] How old is Senator Barbara Mikulski?[12]), but between 1994 and beginning work on this project, I didn’t bother. I stopped relying on these books as it became possible to find specific answers to specific questions online, because the person or persons who knew what I wanted to know had been generous enough to post the answer where it was easy for me to find it. The search was quicker, and commonly yielded more accurate information, than consulting whatever reference books were handy. Add your comment on this item13

Although the Internet’s usefulness as an engine of commerce has flowed and ebbed, its value as a repository of information has continued to grow exponentially. What we used to class as trivia (and therefore useless information) becomes a matchless resource when it is combined with other trivia in searchable form.[13] Volunteers, most of them amateurs, have collected an unimaginable variety of information and are eager to share it with the world. What I want to know may not be in any book on my shelf or in my university’s libraries. I can probably find it on the Internet in less than an hour. Add your comment on this item14

What are sesame seeds?[14]View comments on this item Add your comment on this item15

Networked digital technology has transformed information and the way that we interact with it. Digital information is extraordinarily accessible. If I have a question, I don’t need to make up an answer that seems plausible, or reason out what it’s likely to be. I don’t need to go to the library and ask the reference librarian if I can see the library’s only copy of a reference book that ought to have the answer. I can just turn to my computer and look it up on the web.  Add your comment on this item16

Digital information, moreover, is shared. Ten years, even five years ago, it was conventional to talk about the Internet as a tool for disintermediation. Authors and musicians would be able to use digital networks to sending stuff directly to their readers and listeners. (Remember Stephen King’s The Plant?[15]) There’s some of that. People post content on their websites for the rest of the world to view. Academics exchange drafts of scholarly papers that way,[16] and independent musicians and composers make recordings of their work available for sampling and download.[17] But, while we’ve seen a small but appreciable amount of direct distribution, there’s even more consumer-to-consumer distribution. The “blog” (or weblog) is an increasingly popular art form in which people post an ongoing, public, hyperlinked diaries of things they find interesting and want to share.[18] Readers of the blogs write in to contribute their own comments.[19]  Add your comment on this item17

Someone has the recording I want. If I can find her, she’ll share it with me. I can copy it and pass it on. Someone knows the answer to my question. If I can locate her, she’ll tell me. I can learn it and pass it on. Someone has seen the source I want to consult. She can tell me where to find it. Add your comment on this item18

Where is a copy of the complaint in Hamilton v. Microsoft?[20]View comments on this item Add your comment on this item19

The most powerful engine driving this information space turns out not to be money – at least if we’re focusing on generating and disseminating the content rather than constructing the pipes that it moves through. What seems to be driving the explosive growth in this information space is that people like to look things up, and they want to share. This information economy is largely a gift economy. The overwhelming majority of the information I’m talking about is initially posted by volunteers. Many of them are amateurs, motivated by enthusiasm for their topics, a desire to share, and, perhaps, an interest in attention and the benefits it may bring. When one is a volunteer, the time and effort one is willing to put into contributing to the information space can seem limitless. Volunteers move on, of course: they get bored, or broke, or caught up in other things, but there seems to be an inexhaustible supply of new volunteers to take their places, and, luckily, the new volunteers are able to build on earlier volunteers’ foundations.[21] I potentially know all of the information the other participants know. Their knowledge can be my knowledge with a few clicks of a mouse. In return, I make my knowledge available to anyone who happens by. Each of us can draw on the information stores of the others.[22]  Add your comment on this item20

The rate at which people have adopted the Internet as their research tool of choice is astonishing. People find the easy availability of all that information empowering. People want to know how old Steven Spielberg is. They want to know the history of early radio. They want to know what traveling musicians wore in 15th Century Europe. They want to know how to make Shaker Lemon Pie. They want to know what the Constitution actually says. If it’s quick and easy to do so, they’ll look it up. They enjoy discovering new stuff. The system has been evolving as we watch: consumer-to-consumer interaction is leading to more information, better information, and more accessible information; more complete and deeper archives; wider ranges of divergent sources. [23] People appreciate the instant gratification of learning answers in a moment. Probably more important than the speed of the system, however, is its breadth and depth. Because of the disparate contributions of a host of volunteers, one can find information that would not appear in conventional reference sources.[24] Add your comment on this item21

Ten years ago, not only Washington but the entire journalism business believed that the burgeoning digital network (which went by the name, back then, of the “National Information Infrastructure”) would develop into a 500 channel interactive television system, with “interactive” meaning that it would incorporate a method for ordering and charging purchases and receiving targeted advertising.[25] There are a number of businesses out there that are continuing to try to shove the Internet in that direction,[26] but the fact that it isn’t yet anything like a 500 channel TV is largely because of the way that lots and lots of people have come to interact with information.  Add your comment on this item22

What is “the fuct of Pepsiman”?[27] Add your comment on this item23

Let’s pause for a word from our friendly reference book publishers. Speed and convenience are all very well, but doesn’t selecting the speediest research tool ignore the quality and reliability of the information I retrieve? The Internet, after all, is an infamous source of falsehood and untruth.[28] Books and periodicals have editors and fact checkers to screen out misinformation; websites need not.[29]  Add your comment on this item24

The story, as stories often do, turns out to be more complicated. The efforts of editors and fact checkers have apparently not, for example, prevented periodicals from reprinting Internet untruths as if they were fact.[30] That should not be surprising. Many editors and fact checkers are neither well-paid nor well-qualified to assure the accuracy of the information their employers print. Not all publications use them. Often, fact checkers must rely on authors to direct them to corroborating sources. The customs of different disciplines may control how carefully content is checked.[31] Correcting errors in print publications is difficult and expensive. Except in cases egregious enough to merit a recall,[32] the corrections must be put off until the publication of a later edition. Add your comment on this item25

On the World Wide Web, in contrast, correcting errors and revising documents is simple and inexpensive. One can rewrite a file several times each day and spend nothing more than the time that it takes to enter the revisions and transmit the file to the server. If one makes a mistake, there are dozens of eager volunteers likely to send one an email offering corrections.[33] Indeed, the feedback of knowledgeable readers is a powerful force promoting accuracy on the web. With the world looking in, errors are much more likely to be identified, and correcting them is easy.  Add your comment on this item26

Stepping back to look at the whole dynamic information space, it becomes clear that the remote participation of readers doesn’t stop at writing comments in other people’s blogs, or even at writing in to correct errors or misstatements. Fellow enthusiasts are likely to reuse the information they find in one web page – or a dozen -- in their own web pages. A reader may simply post a hyperlink to someone else’s page, or she may bodily appropriate some prose, combine it with her own prose and additional prose lifted from some other sites, and post the amalgam as her own (with or without attribution). Thus does information spread. What makes this economy so astonishingly useful is information sharing – we’re not each of us downloading facts from some giant Encyclopedia Britannica in the sky, we’re both finding what we need and also making available material that we’ve generated or assembled.  Add your comment on this item27

Who invented the phonograph?[34] Add your comment on this item28

This information system is vital and dynamic because information sharing is almost frictionless. Material is passed along at low cost with few practical or legal barriers. Jeff Dalehite, webmaster of <scratchdj.com>, is free to post the details of the early history of the phonograph without seeking the consent of his sources. Dalehite’s site tells us that Thomas Edison invented the cylinder phonograph in the 1870s and patented it in 1878. Dalehite recounts the details of the commercial standards competition between Edison’s phonograph and the disk gramophone introduced to the U.S. market in 1901 by the Victor Talking Machine Company.[35] He attributes none of his sources; he need not even know whether the information he has abstracted was original to the references he used or derived by them from some other source. Technical writer Samuel Berliner III has posted a site honoring famous people throughout history named Berliner. His site reports that the disk gramophone was invented by Emile Berliner in 1887. Berliner needs no permission from Frederick W. Nile, the author of a 1926 biography of Emile Berliner,[36] nor the National Inventors Hall of Fame, who have posted a short profile of Berliner,[37] from whom he initially learned that information.[38] Neither Dalehite nor Berliner has secured a license from Tommy Cichanowski for any facts they might have learned by studying Tommy’s History of Western Technology,[39] nor have they sought the blessing of the periodical Electronic Design, whose February 1976 issue commemorating the U.S, bicentennial[40] furnished many of the dates that Cichanowski reports. If one were unable to post facts without determining who controlled them and obtaining a license to pass those facts on, this online information space would not exist.View comments on this item Add your comment on this item29

II. Formalities and Default Rules Add your comment on this item30

Who wrote “When I was One-and-Twenty”?[41] Add your comment on this item31

The purpose of copyright is to promote the progress of science, by encouraging the production and dissemination of works of authorship.[42] The contributions of this networked digital information space to the “Progress of Science” are difficult to overestimate. Already, a network of people sharing what they know has made many of the most popular reference sources obsolete. Thus, one might reasonably hope and expect that a law designed to promote the Progress of Science would encourage the robust growth and prodigious use of this network to exchange the full spectrum of interesting material. Add your comment on this item32

Under current law, though, the information space I’m talking about is lawful only because so much of its content – the facts, information, ideas – is in the public domain. To the extent that the material in this information space is in the public domain, we can all share it, use it, and reuse it. To the extent it’s protected by copyright, on the other hand, we would need permission to do all of that, and, as a practical matter, it isn’t possible to secure that permission. One of the most salient lessons from the copyright wars of the last few years is that if express permission is required before one can post a collection of anything on the Internet, one will be unable to do it.[43]  Add your comment on this item33

To appreciate the extent of the problem, it’s helpful to review key changes in the copyright law and the information space over the past thirty years. Today, facts are some of the only material solidly part of the public domain, but 30 years ago, that wasn’t true. In 1973, copyright protection was not automatic. To get it, you needed to distribute copies of your work to the public, and the copies needed to be marked with a copyright notice.[44] Notice of copyright – the familiar C-in-a-circle, along with the name of the copyright owner and the date the work was first published – secured copyright. Distributing copies without notice caused the work to enter the public domain.[45] Indeed, the point of the copyright system was to offer authors protection for a limited time as an incentive to encourage them to distribute their works to the public, and simultaneously to ensure that as many works entered the public domain as soon as possible, so that the public could make unfettered use of them.[46] Copyright law was designed to separate works whose authors wanted copyright protection enough to follow a few simple rules for preserving it, from works that would have been created and distributed anyway. Add your comment on this item34

Thirty years ago, when you saw something you wanted to use or share, the default rule was that you were entitled to do so. Unless the object was marked “do not copy” you were, with some modest exceptions, entitled to assume it was in the public domain, because the absence of a copyright notice ensured that it was in the public domain (even if it hadn’t been before.)[47] Not only that, but the notice had to be accurate, had to tell you when the copyright was scheduled to expire, and had to tell you to whom you needed to address any request for permission.[48] The overwhelming majority of potentially copyrightable works didn’t have this notice and entered the public domain the minute copies were publicly distributed. Of the ones that bore the prescribed copyright notice, only a fraction were registered, and of the fraction that were registered, only 15% were renewed, so for most of the copyright-protected works that had the requisite notice, copyright protection lasted only 28 years.[49] Add your comment on this item35

When was the U.S. army first officially racially segregated?  Add your comment on this item36

When was it officially integrated?[50] Add your comment on this item37

The formalities get a bad rap these days. We’ve left that sort of thinking behind us; we’re more enlightened now. We know better than to condition copyright protection on a bunch of technical requirements.[51] (We feel more comfortable conditioning use of copyrighted works on a bunch of even more technical requirements.[52]) The formalities have been so thoroughly discredited that some of us have even stopped teaching them.[53]  Add your comment on this item38

What we miss when we dismiss the formalities as characteristic of a provincial and outmoded attitude is that the formalities were the principal method embodied in US copyright law for preserving the public domain and encouraging the public to use, reuse and share potentially copyrightable material. If you read older copyright cases, textbooks and law review articles, you find a broad consensus that copyright law was designed to encourage the growth of the public domain.[54] The theory underlying the system was that a rich public domain was essential to the progress of knowledge. By offering copyright for a limited time to authors who distributed their works to the public, copyright bribed them to generate material for the public domain.  Add your comment on this item39

The old rules worked to preserve copyright for works whose owners wanted it enough to take the affirmative steps required to assert it. The law made copyright subject to exceedingly modest requirements to claim protection and put the public on notice. It was designed to force everything else into the public domain, so that everyone else could make whatever use of it they wanted. Copyright wasn’t automatic, but it was easy to secure. Putting a notice on publicly distributed copies might not be trivial, but it was far easier than the effort involved in applying for a patent or registering a trademark. Retaining copyright after the initial 28 year term was a little harder, but again, not very hard. Nothing one would need a lawyer for. Meanwhile, the rules were designed to make it easier for people who wanted to negotiate a license to use a work protected by copyright to know whether and whom they needed to ask. Again, for most licenses, a lawyer would be strictly optional. Add your comment on this item40

Congress abandoned many of the formalities when it enacted the 1976 Copyright Revision Act,[55] and ditched the rest of them in 1989 when we acceded to the Berne Convention.[56] In 1976, we essentially abolished the rule that publication without notice or with inaccurate notice sent the work into the public domain[57] and in 1989, we abolished the notice requirement entirely.[58] We also made other changes to the law that, cumulatively, reversed the default rule. Today, all potentially copyrightable works are protected by copyright, whether their authors want copyright protection or not.[59]  Add your comment on this item41

How do you make Shaker lemon pie?[60] Add your comment on this item42

A second, less obvious but still crucial, change transformed the US copyright system from one designed to ensure the enhancement of the public domain to one designed to support the indefinite proprietary treatment of articulated thought. In 1976, Congress adopted divisibility of copyright.[61] So far as I can tell, the change was completely uncontroversial. Divisibility is all sorts of useful. It’s the biggest reason that authors don’t need to sign over their copyrights when they publish things. It allows the author to keep control over different sorts of exploitation of her work by different entities. The problem with divisibility is that it potentially requires multiple licenses for any single use of a copyrighted work, while simultaneously making it very difficult to tell who owns the rights one needs to license.[62] Professor Lydia Loren recently summed up the problems the music industry faces in putting its works online: Add your comment on this item43

[T]here are too many vested industry players for downstream users to be able to efficiently obtain the authorizations needed for downstream use of recorded music. Second, the divisible yet overlapping rights granted to copyright owners leads to industry gridlock and problems with holdout behavior. Finally, the demands for payment from the downstream user by too many vested industry players, combined with industry consolidation, result in the price being too high to achieve the goal of copyright.[63] Add your comment on this item44

There once was an interesting Internet start-up named MP3.com, which specialized in making both major-label and unsigned music available in the MP3 format. MP3.com intended to stream copyrighted music to its subscribers, and bought ASCAP and BMI public performance licenses to allow it to do so. That seems right. If you look at the statutory definition of public performance, it appears to cover Internet streaming quite nicely.[64] MP3.com got sued for willful infringement (and lost) because it didn’t also license the reproduction rights to those songs, which are controlled by a different entity.[65] Add your comment on this item45

This is much worse in the Internet context because copyright owners have asserted, so far successfully, that every time a work is made available over the Internet, someone has reproduced the work, distributed the work, and publicly performed or displayed the work.[66] Anyone who wants to post a work on the web, thus, needs a license from the owners of each of these rights, plus a license from the owners of each of these rights in any underlying works that are incorporated within the work.[67] Under the current leading analysis of how copyright law interacts with the Internet, making any material available over the Internet (whether via posting it on a website, sending it through email, posting it to Usenet news, typing it on Internet relay chat or making it available in a share directory associated with a peer-to-peer file trading application) constitutes a reproduction of the material, a distribution of the material to the public, and a public display or performance of the material. It is therefore illegal unless done with the authorization of the copyright owners of the reproduction right, the public distribution right, and the public display or public performance right, as well as the copyright owners of those rights in any underlying material.[68] It counts as an actionable copy notwithstanding the fact that the reproduction may be ephemeral (what the law used to deem unfixed).[69] It counts as a distribution to the public notwithstanding the fact that no tangible copy of the material is transferred (what the law used to deem a display or performance rather than a distribution).[70] It constitutes a public display or performance notwithstanding the fact that any display or performance may occur only between two individual computers (what the law used to deem private).[71] Add your comment on this item46

Indeed, there’s some indication in the case law that making a hyperlink to material available over the Internet may be deemed to be a reproduction, public distribution, and public performance or public display, requiring the permission of the owners of the reproduction, distribution and public performance and display rights in the material on the other end of the link.[72] Moreover, the theory underlying the recording industry’s recent service of more than a thousand subpoenas[73] on Internet service providers and universities appears to be that merely possessing an unauthorized digital copy of a protected work can itself be infringing distribution, because a member of the public could download a copy of the work from the possessor’s hard disk. A bill recently introduced in Congress extends that argument further. Under Congressman Conyers’ Author, Consumer, and Computer Owner Protection and Security Act, possessing an unauthorized digital copy could constitute felony distribution.[74]  Add your comment on this item47

And (as if that weren’t troubling enough) largely because of the adoption of divisibility of copyright, in many if not most cases, it can be difficult and sometimes impossible to discover who the copyright owners of all of those rights are.[75] One of the more disturbing revelations of the Napster litigation was that record companies insisted that they were unable to generate a list of the copyrighted works they claimed to own.[76] (This is particularly disquieting because one would assume they kept records in order to send out those royalty checks they’re supposed to be sending out, but apparently not.) Some of the problem, apparently, is record keeping, but not most of it. In addition to difficulties caused by lost or misfiled records, there is significant legal uncertainty about the ownership of rights to control digital exploitation of works that are subject to contracts contemplating conventional exploitation.[77] Record companies, for example, have claimed to own all copyright rights in the recorded music they distribute under the work made for hire doctrine, but most experts agree that those claims are unpersuasive.[78] A successful effort to amend the copyright law to strengthen the record labels’ work-made-for-hire arguments excited so much outrage among musicians that the recording industry persuaded Congress to repeal the amendment the following year.[79] Without the benefit of a work-made-for-hire claim, though, the record labels’ claims to own the digital rights to the recordings they produce requires a work-by-work, contract-by-contract analysis. New York Times v. Tasini[80] and Random House v. Rosetta Books[81] teach us that contractual assignments of copyright may not necessarily include the electronic rights. We’d have to examine the contracts to be sure. We might need to know whether the case would be coming up on the east coast or the west coast.[82] We’d also need to see the contract between the composer and the music publisher for each song on the recording, and the contracts between each of the music publishers and the record company that recorded each song. Those contracts aren’t publicly available. One suspects that a large number of them are no longer in anyone’s file cabinets either. Bottom line: we don’t know with any certainty who owns the digital rights in any number of recorded musical performances. That’s why record companies have scrambled to settle cases when their ownership of sound recordings is actually put in issue.[83] If I want to share my music collection with my newfound friend who was able to tell me that the “Fuct of Pepsiman” is a promotional toy released in Japan by the Pepsi Cola company, there isn’t any way for me to figure out whose permission I need to ask.  Add your comment on this item48

Today, in short, everything is protected by copyright and it is almost impossible to figure out whom to ask for permission. Just as we built a communications network that would permit us, if we chose to, to dispense with a complicated and expensive distribution infrastructure, we ditched the legal rules that would have permitted us to do so without high legal barriers.[84]  Add your comment on this item49

III. The Music of Room A-9 Add your comment on this item50

What are the lyrics to “The Syncopated Clock?”[85] Add your comment on this item51

Last year, my son was in third grade, and one of his assignments required him to conduct research on the flora, fauna, and climate of the alpine tundra. His teacher didn’t send him to look it up in books – indeed, the school library didn’t have a lot of information to offer on the alpine tundra. My son’s teacher sent him to look it up on the Web. She gave him a list of URLs for some websites that were likely to lead him to the information he needed, and sat him down in front of a computer to do his research. At the end of the school year, this teacher said goodbye to the class and presented all of the students with a souvenir: A home-burned CD full of Room A-9’s favorite songs. Where did the songs come from? My son’s elementary school teacher had downloaded them from the Internet herself so the class could enjoy them. Room A-9 apparently especially liked the Sugar Beats’ rendition of “Put A Little Love in Your Heart.”[86] Add your comment on this item52

When an elementary school teacher helps her class to download information about the animals that inhabit the tundra, we all agree that that’s admirable. When she teaches the class to download “Put a Little Love in Your Heart,” at least some of us would argue that that’s reprehensible. Collecting information on the Internet is “learning.” Posting information on the net is “sharing.” Try exactly the same thing with recorded music and it’s “stealing.” When my son’s teacher downloads information from the Internet and shares it with her students, that’s the sort of thing the law is supposed to encourage; when she downloads music from the Internet and shares it with her students, that’s the sort of thing the law is supposed to prevent. The law treats the two acts differently because facts are in the public domain, while music is someone’s property. Information cannot be owned, we’re told, because, unlike music, facts aren’t original.[87] From my son’s teacher’s point of view, though, what she’s doing is the same: she’s sharing.[88] From her point of view, there’s no reason to think that it would make intuitive sense that downloading information to share with her students would be good, while downloading music to share with her students would be bad. Those of us who teach copyright know that the distinction between unprotected fact and protected expression is as elusive and counterintuitive as anything in the copyright course. There’s a wealth of literature challenging the rule that information is unlike music in any way that’s important to whether we should give it intellectual property protection.[89] Any originality-based distinction between facts and notes is untenable, we’re told, since unearthing and assembling facts takes at least as much creativity and often lots more money than writing a song.[90] Scholar after scholar has deconstructed the supposed rationales for giving factual information different treatment from fiction, and concluded that the asserted differences can’t be defended. The inescapable conclusion, they’ve told us, is that we need to give comparable intellectual property protection to information.[91] There’s a perennial bill pending in the U.S. Congress that threatens to do just that;[92] it’s even passed the House of Representatives once or twice.[93] Add your comment on this item53

Copyright scholars never seem to reverse the syllogism. You never run into an argument that says: if facts and music are equivalent in the respects that matter, and we have an ample, readily accessible and diverse supply of facts when the law gives them no protection, shouldn’t we at least investigate what sort of musical smorgasbord we might develop if we treated music comparably? Add your comment on this item54

IV. Resetting the Default Rules Add your comment on this item55

Who are the Sugar Beats?[94] Add your comment on this item56

We have a mature information market on the Internet that allows almost anyone with a net connection to find the answer to almost any question by consulting what would a generation ago have been an unimaginable wealth of information resources. This information space has sprung up not despite but because of the absence of any copyright protection for facts. (If you doubt me, stop a moment for a thought experiment, and imagine what this information space would look like if we adopted and enforced a legal rule that no fact could be posted without the permission of the originator of that fact or his employer or assignee.) At worst, this information space is an invaluable adjunct to the library of reference books, and at best it’s a superior alternative for retrieving and disseminating information. If consumer-to-consumer dissemination creates a superior information marketplace, shouldn’t we give serious consideration to the idea that it would create a superior music marketplace? The digital information space is compelling at least as much because of the variety and ecology of shared information, as because of the convenience and speed that might be supplied by an online “encyclopedia world,” containing the digitized text of the Encyclopedia Britannica and a dozen of its competitors. Consumer-to-consumer dissemination of music might enable the evolution of a music space with comparable variety. That potential is more exciting than the advantages of instant gratification that accompany the ability to download whatever music the record labels are currently selling. Just as we wouldn’t want to get all of our facts from some giant Encyclopedia Britannica in the sky, there’s no need to cabin our musical tastes to reflect what’s currently selling in online or offline stores. Add your comment on this item57

I’m not seriously suggesting anything as radical as that we treat music exactly the way we treat facts, or that we dump all recorded music into the public domain. Copyright has a number of virtues along with its vices. Rather, I’m suggesting that we apply some of the insight we’ve gained from watching the expanding exchange of information over the Internet. Creation and dissemination may flourish without the incentives supposedly supplied by producer control.[95] One of the lessons we can take from the vibrant commerce in facts that goes on over the Internet is that allowing, indeed encouraging individuals to share music, trade music -- engage in non-commercial “stealing” of music if you prefer – without legal liability is not necessarily going to bring the progress of science and the useful arts to a crashing halt, and it has lots of advantages over the distribution system that preceded it.View comments on this item Add your comment on this item58

One non-trivial advantage is that consumer-to-consumer distribution is a lot less costly, and may allow us to free up resources now spent on CD burning, shipping, storage, shelf space and radio payola, not to mention the huge cost of legal efforts to stamp out what is commonly called “piracy.” That money could be used to pay the people who create the music – something the record companies insist they can’t really afford to do very well under the current system.[96]

View comments on this item Add your comment on this item59

What’s the name of that song that keeps going through my head?[97] Add your comment on this item60

There are vast differences between music and information, but outside of the fact that the owners of music and sound recording copyrights have a lot more brute political clout than, say, Reed Elsevier, I’m not sure that any of those differences undercut the basic insight: If music in a digital world shares many of the attributes of information, it may be useful to apply some of the wisdom IP law has developed over the protection and distribution of information. In particular, we should remember that widespread sharing is the goal; facilitating the sale of copies is only the means the law has adopted to further that goal.[98] If sharing is a more effective method of dissemination than selling copies, then prohibiting sharing to protect the market for copy sales is exactly backward.[99]  Add your comment on this item61

If we can agree on that, I think it’s relatively easy to work out the details of a compromise we can live with.[100] A surprising consensus has emerged that P2P is exciting technology with one serious flaw – creators aren’t getting paid. [101] (That flaw characterizes much conventional distribution as well.[102]) The current conventional system of music distribution has been successful in disseminating a broad range of music to consumers and less successful in compensating the individuals who create that music. Peer-to-peer file trading has so far proved to be a far more effective distribution mechanism for a broader range of music, but is even worse than the conventional system at compensating creators.[103] Tweaking peer-to-peer file trading to incorporate a mechanism for compensating creators is relatively straightforward – there are a host of recent thoughtful suggestions outlining ways to do that.[104] If the only reason we care about compensation for composers and musicians is to induce them to make music, the most efficient option is probably to legalize peer-to-peer file trading, prohibit well-poisoning and leave creator compensation untouched – the recording industry has demonstrated that artists make music even when money is not forthcoming. If our sense of fairness impels us to compensate creators because they deserve to be paid, then extracting creator compensation from peer-to-peer file trading would probably be an easier route than reforming the recording and broadcast industries.[105] Add your comment on this item62

A number of scholars have floated thoughtful proposals urging systems that would permit peer-to-peer file sharing, charge money to the people who enjoy it (or the businesses that profit from it), and use those funds to compensate creators and copyright owners.[106] Professor Neil Netanel suggests allowing consumers to engage in unrestricted noncommercial use, adaptation, and peer-to-peer exchange of all types of communicative expression, and imposing a noncommercial use levy to compensate copyright owners. Netanel would impose the levy on the sale of products and services whose value is enhanced by peer-to-peer file sharing; the Copyright Office would divide the levy proceeds among copyright owners using both sampling and digital tracking technologies.[107] Professor Terry Fisher proposes a slightly different solution. Fisher would encourage copyright owners of music recordings and films to register their works with the Copyright Office, which would assign every registered music recording or film a unique registration number. Copyright owners would incorporate the registration number into the names of the digital file containing the registered work. The Copyright Office would be responsible for administering a tax on digital recording devices, digital storage media and Internet access services, and would divide the proceeds of the tax among owners of the copyright in registered works by tracking downloads of files by registration number and using sampling to estimate offline consumption. Anyone would be permitted to reproduce, distribute or perform audio and video recordings over the Internet. Professor Fisher suggests that the initial deployment of his proposal be completely voluntary, but he envisions that it would ultimately replace the current copyright law completely.[108] Professor Raymond Ku argues that the current copyright law makes no sense in the context of digital distribution. Ku would retain the current law for analog distribution, but would replace copyright in the Internet context with a statute imposing levies on sales of Internet service and on computer, audio, and video equipment.[109] Professor Glynn Lunney argues that private digital copying probably does more good than harm, but suggests that if that harm must be redressed, a levy imposed on devices and blank storage media is the best available solution.[110]View comments on this item Add your comment on this item63

The differences between these proposals are not, in fact, that large. Netanel would permit unrestricted noncommercial use of a majority of copyrighted material,[111] while Fisher limits his proposal to audio and video recordings, but would allow commercial as well as noncommercial uses.[112] Netanel and Fisher would direct their alternative compensation to copyright owners, while Ku would reserve it for musicians and songwriters. Netanel, Fisher and Ku all, however, rely on a government-imposed, Copyright Office-administered fee on the sale of digital goods and services to provide compensation for missed sales and royalties. Netanel would leave the current copyright law untouched except for his noncommercial user privilege and levy. Ku would retain the current law for analog distribution so long as works were distributed in the analog as well as the digital channel.[113] Fisher envisions his system’s ultimately superseding the current statutory copyright and calls for the copyright statute’s eventual repeal.[114] Despite these differences, however, the core of all four proposals is to permit, indeed encourage consumers to engage in consumer-to-consumer distribution while compensating creators from a fund financed by the sales of related equipment and services. Considered in the context of music, the proposed change is a modest one. Consumers already have a privilege to make non-commercial digital copies of musical recordings,[115] and the right to distribute those copies to members of the public.[116] Consumers, moreover, already pay a levy intended to compensate composers, musicians and record companies for the sales lost through private consumer copying.[117] Netanel, Fisher, Lunney and Ku would extend both the privilege and the levy to copying and dissemination over digital networks. Add your comment on this item64

From the viewpoint of the individuals who make the music, moreover, these proposals are remarkably similar to the devices we rely on today to pay money to composers and musicians. In Canada, Europe and Japan, musicians and composers rely heavily on collecting societies. In the United States, a patchwork combination of compulsory licenses, blanket licenses, standard trade practices and rate courts add up to much the same thing. The proposals to enact a new license to permit peer-to-peer file sharing and compensate creators through a levy, tax, or uniform royalty have inspired heated philosophical and economic debates over the flaws in any compulsory or collective licensing system. The objections tend to ignore the fact that composers and performers of music currently receive most of their income through a combination of standardized, compulsory and collective licenses administered by intermediaries (music publishers, record companies, performing rights societies) in return for payment. From the vantage point of music creators, replacing the theoretical control they enjoy under the copyright law with an enforceable promise of payment makes them no worse off, and makes most of them better off.  Add your comment on this item65

The intermediaries who hold control over musical works and recordings are also in it for the money, and one might expect them to be delighted to hand over their control in return for more cash. Not a bit of it. The current dominant forces in the music and recording business may no longer need record pressing plants, CD burning plants, warehouses and trucks to distribute music, but they have a huge stake in ensuring that digital distributors be limited to those who used to rely on record pressing plants, CD burning plants, warehouses and trucks. They rest of us, however, don’t share that stake. Indeed, new distributors who never assumed those expenses may be in a position to experiment with new variations on digital distribution and still pay a larger percentage of proceeds to the creators of the material.View comments on this item Add your comment on this item66

The Fisher, Ku, Lunney and Netanel proposals would improve the law by allowing frictionless, consumer-to-consumer dissemination and collecting royalties to compensate creators from those who in a broad sense may be described as commercially exploiting copyrighted works.[118] Moreover, when their schemes are limited to music, currently the most vexing case of consumer-to-consumer dissemination, the proposals are modest extensions of devices contained in current law and business practice. In drawing on their analyses, I end up suggesting a variant solution pegged at least initially only to music sharing, but my pursuit of some different choices shouldn’t obscure the importance of their work. The politics of copyright legislation will likely prevent us from adopting any of the four proposals they advance, but our copyright law would be much improved if we did.  Add your comment on this item67

V. Sharing and Hoarding

How violent is next week’s episode of Dragonball Z?[119] Add your comment on this item68

If I’m persuaded that politics would prevent the adoption of a Netanel/Fisher/Ku/Lunney solution, why am I bothering to articulate my own variation? As consensus builds around the idea of paid peer-to-peer, it seems increasingly plausible that some legislation will emerge with enough support from the music, recording, computer, and consumer electronic industries to have a fair chance of enactment. I expect that that legislation will include both consumer downloads of music and collective licenses to pay for them. Such a bill is less likely to resemble the proposals advanced by Netanel, Fisher, Lunney and Ku, however, than it is to be designed to maintain the current recording and music industry distributors in their market dominant position. Most importantly, it is less likely to incorporate a privilege for consumer-to-consumer dissemination than it is to include measures designed to prevent it. If we are willing to give up consumer-to-consumer dissemination in return for the instant gratification of licensed direct downloads, the recording industry is probably willing to sell us copy-protected files replicating at least a portion of the music it makes available in stores.  Add your comment on this item69

The prospect of downloading copy-protected versions of music otherwise available in stores is not particularly enticing. This is the music version of the online encyclopedia world, and we can do better. The promise of being able to find music that is not available in stores, and to share it with other consumers, in contrast, is compelling. Lots of music is not available in any store, because it's old, it's obscure, it has little commercial potential, or the rights can't be cleared without a statutory license or privilege because it's just too difficult to figure out who owns them. Consumer-to-consumer music dissemination makes it possible to find and share that music.  Add your comment on this item70

The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table. The details of any proposal for an online music system will determine the extent to which it promotes unfettered consumer-to-consumer exchange, allows untethered consumer use, encourages the broad dissemination of a wide variety of music of disparate types, takes advantage of the economies made possible by digital distribution, and pays composers and musicians. The details of such a system will also determine whether and to what extent it requires copyright police to enforce its rules. The more conversations that people who are not copyright lobbyists can have about the details of a revised copyright bargain, the better positioned they will be to shape the law Congress may enact.[120] The devil will be in the details, and focusing on the details allows us to figure out which ones are most important. Add your comment on this item71

I suggest that we should try to build a music space that resembles the current digital information space in the ubiquity of music it contains and the ease with which music may be shared, and that we should devise a combination of blanket fees or levies designed to compensate the creators of the music we exchange. In order to achieve the breadth and diversity of music, and the community of consumers who enjoy it, that has evolved in the Internet information space, we will need to rely on consumer-to-consumer dissemination as well as licensed downloads or streams. If we as consumers want to pay for the music we exchange, we need some form of blanket fee or levy to enable us to do so. Because some creators and copyright owners find the idea of consumer-to-consumer dissemination unacceptable, I suggest that we devise a way to allow them to withhold their music from the system. To discourage them from electing that option, I believe we should optimize the legal infrastructure for sharing. I’ve drawn the details of that infrastructure with an eye toward recapturing some of the lost advantages of notice and indivisibility. Add your comment on this item72

So, should I have a drink with that guy or not?[121] Add your comment on this item73

We should adopt a legal architecture that encourages but does not compel copyright owners to make their works available for widespread sharing over digital networks. We should incorporate into that architecture a payment mechanism designed to compensate creators and to bypass unnecessary intermediaries.[122] That mechanism should have sufficient flexibility to allow current and new upstart intermediaries to devise useful value-added flavors of intermediation and collect dollars accordingly. Fisher, Ku and Netanel have done a pretty good job of identifying the goods and services that will need to be subject to a copyright “tax,” “fee,” “levy,” or “royalty. ”[123] The pot of money generated by the fees should be disbursed by whatever agency Congress decides should replace the current unworkable Copyright Arbitration Royalty Panels.[124] In the first instance, money should be disbursed to the musicians and composers who author music and recordings.[125] Add your comment on this item74

If the legal architecture encourages sharing but permits what we might want to call “hoarding,” then consumer-to-consumer exchange can develop without difficult legal or technological barriers.[126] Thus, I’d be willing to incorporate a limited, carefully structured, notice-based opt out for copyright owners who prefer control to payment. If hoarded music is indeed superior, it will be able to compete with the “free” stuff. (If it can’t compete with the “free” stuff, then overall welfare is probably enhanced if we refuse to subsidize it with expensive legal barriers and copyright police.) To achieve a legal regime that encourages sharing but permits hoarding, we should impose a requirement that copyright owners who decide to hoard must forgo any payment for hoarded works from the common payment system, and must take affirmative but relatively modest steps to exclude their works from the network and enable consumers to quickly and painlessly verify that those works may not lawfully be shared.  Add your comment on this item75

My reasons for preferring a system that copyright owners can choose not to participate in are at least in part pragmatic. First, so long as the legal and technological architecture are optimized for sharing, allowing copyright owners to withhold their works does little harm. Paid subscription information and news sites on the Internet coexist comfortably with sites that are open to the public and free of charge; if we can duplicate that peaceful coexistence for digital music, it seems sensible to try to do so. Second, if we design an alternative compensation system to collect enough money to compensate the proprietors of mega-hits for all of their forgone income, we can expect that the expense of such a system will be unreasonably high, and that the compensation paid to the creators of more modestly successful music will be unreasonably low. Third, if such a system allows copyright owners to decline to participate, it seems more likely that it will be deemed at least arguably compliant with our treaty obligations under the Berne Convention and the WIPO Copyright Treaty. Finally, my proposal is motivated in part by my conviction that composers and musicians have been ill-served by the current system. If they nonetheless prefer the dysfunction they know to a new and unproved system, and we can make the system work without including them, I see no important policies that will be served by forcing them to continue to participate.[127]  Add your comment on this item76

To enable an opt-out mechanism that won’t deform the legal and technical architecture encouraging sharing, I suggest that we try to reproduce the functions that notice and indivisibility provided before we abandoned them.[128] The key to the opt-out mechanism I propose is the selection of a single digital file format or family of formats capable of conveying copyright management information as defined in section 1202 of the copyright act.[129] The format will probably incorporate digital rights management capability because the people who will be using it will desire that feature, but there’s no need for any copy-protection to be hack-proof, or even exceptionally durable. It should also be compatible with the current generation of digital playback devices, including CD players.[130] I’ll call the format “.drm” for short.[131] Any musical work or sound recording that is made available to the public, under the copyright owner’s authority, only in *.drm format will be ineligible for sharing or compensation. To protect copyright owners from having their works kidnapped into sharable file formats, we should require them to enter the copyright management information for works made available to the public only in *.drm format into a single, universal, searchable index of works that have opted out of digital sharing. The authoritative copy of the database should probably be maintained by the Copyright Office, although other computers should be encouraged to mirror it. At such time as the creators or copyright owners of a work desire to participate in the revenue earned from digital sharing, they may remove their listing from the database, publish the work in another format and become eligible to collect compensation.View comments on this item Add your comment on this item77

Whatever happened to Herman’s Hermits?[132] Add your comment on this item78

With the exception of works released only in *.drm format, consumer-to-consumer dissemination and any reproduction, distribution or public performance or display that it entailed, would be completely legal. Any music that’s already been released in other formats could not be recaptured by releasing it in a *.drm file, so the music currently being shared over peer-to-peer networks could not be locked back up. It would, however, be eligible for compensation. Creators of new releases could choose to make them available for sharing or they could hoard them and forgo both the free distribution and the additional income that sharing would generate. What happens when a noncompliant consumer trades a *.drm file over a peer-to-peer network? Copyright owners would have the options they have now for pursuing consumers who exchanged material illegally. Notwithstanding that record labels are currently pressing copyright infringement suits against individual peer-to-peer file traders, why would they settle for a system that gives them no more effective an enforcement mechanism than the one they have now? My answer is that if hoarding were reserved for new releases with significant commercial potential, I believe that consumers would be far more likely to respect the choice to hoard, and I believe that a law with broad consumer support is easier to enforce than one that lacks it.[133] Add your comment on this item79

The use of a single file format will enable consumers easily to identify files they may not share and facilitate efforts of software designers to create file sharing software that blocks transfers of proprietary files. The maintenance of a master searchable index will enable consumers to ascertain whether particular files are unauthorized counterfeits. The use of a single, identified file format augmented by a searchable index captures some of the public benefits of copyright notice and registration. By allowing copyright owners to opt out of file sharing so long and only so long as their work remains published in the single *.drm format, the proposal mitigates the effects of divisibility by requiring the copyright owners to coordinate with one another in exploiting their works. Add your comment on this item80

To preserve the integrity of the system, it will be necessary to impose a penalty for entering or maintaining inaccurate copyright management information in the database. This is especially important given that the system contemplates that copyright owners will elect to stop hoarding and start sharing, and will need an incentive to ensure that their database entries reflect the change in their works’ status. The penalty should be significant, but it need not nor should not be as harsh as the classic penalty for inaccurate copyright notice. Rather than forfeiting copyright entirely, inaccuracies in the database should be punished by allowing, for some appropriate period of time, the assertion of a defense in the nature of copyright misuse to actions to enforce the copyright in the work.[134] Since copyright owners will either be collecting compensation derived from consumer-to-consumer distribution, or keeping their works ineligible for peer-to-peer sharing, there will be no legal excuse for the sort of self-help shenanigans we’ve recently seen deployed as a high-tech version of copyright-owner vengeance against peer-to-peer file traders. Since we’re relying on the consumer-to-consumer distribution network, moreover, any poisoning of the well is likely to spoil legitimate file trading for consumers and other creators. Any spoofing, interdiction, denial of service attacks, decoys and similar self help, if undertaken under the authority of the copyright owner, should be grounds for asserting a similar copyright misuse defense. Add your comment on this item81

My specific proposal is inspired by an impulse to see whether an architecture like the one that has permitted the Internet to flourish as an information space can define a thriving music space. The U.S. recording industry’s recent enforcement campaign seems to seek to move us in a very different direction. It promises us something we would all agree is desirable if we only renounce what to many of us, it has become clear, is crucial. The recording industry appears poised to accept a world in which we agree to allow consumer downloading (either for free or for a price) but not what the recording industry is calling “uploading” – which is the state of having on your hard disk a music file that someone else can search for and copy from you. Just as the idiosyncratic interests of large numbers of individuals who want to share is directly responsible for the wealth and incredible variety of information we can find when we go looking for it, I think that consumer-to-consumer file trading has the potential to make it economically feasible to distribute a much broader variety of music to a much larger audience. I’d hate to lose that potential just because it’s strange, new, unproven, and not yet well represented by lobbyists. Add your comment on this item82



* Professor of Law, Wayne State University. Jon Weinberg’s suggestions greatly improved this paper. I’m also grateful to Mike Carroll, Anupam Chander, Peggy Radin, and Tim Wu, whose criticism of a much earlier version persuaded me to take a different approach. All URL citations are up to date as of November 14, 2003. Add your comment on this item83

[1] See Jessica Litman, Digital Copyright 104 (2001); see, e.g., American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994)(“the monopoly privileges conferred by copyright protection and the potential financial rewards therefrom are not directly serving to motivate authors to write individual articles; rather, they serve to motivate publishers to produce journals, which provide the conventional and often exclusive means for disseminating these individual articles”). Add your comment on this item84

[2] Stephen King’s The Plant has been the most famous example of the direct distribution model. Stephen King promised to keep writing the novel so long as three quarters of the individuals who downloaded each chapter paid a dollar for it. Initially, 76% of the people who downloaded chapters paid. After 4 chapters, the percentage of paying readers dropped to 46% and King dropped the project. See M.J. Rose, Stephen Kin’s “Plant” Uprooted, Wired News, Nov. 28, 2000, at URL: < http://www.wired.com/news/culture/0,1284,40356,00.html >.View comments on this item Add your comment on this item85

[3] See H.R. 2572, 108th Cong., 1st Sess. (2003); H.R. 2517, 108th Cong., 1st Sess. (2003). Add your comment on this item86

[4] See A&M v. Napster, 239 F.3d 1004 (9th Cir. 2001); In re Aimster, 334 F.3d 643 (7th Cir. 2003); MGM v. Grokster, 259 F.Supp.2d 1029 (C.D. Cal 2003). Add your comment on this item87

[5] See RIAA v. Verizon, 240 F. Supp. 2d 24 (D. D.C. 2003). Add your comment on this item88

[6] See RIAA, Recording Industry Begins Suing P2P File Sharers Who Illegally Offer Copyrighted Music Online, Sept. 8, 2003, at URL: http://www.riaa.com/news/newsletter/090803.asp; John Borland, RIAA Files 80 New File-Swapping Suits, c|net New.com, Oct. 30, 2003, at URL: <http://zdnet.com.com/2100-1104-5099738.html>. Add your comment on this item89

[7] See Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995). Add your comment on this item90

[8] See id.; Litman, supra note 1, at 89-100.  Add your comment on this item91

[9] See, e.g., Jim Hu, Broadband Numbers Show Heightened Demand, C|net News.com, October 31, 2003, at URL: http://news.com.com/2100-1034-5100321.html; Matt Richtel, Fast and Furious: The Race to Wire America, New York Times, Nov. 16, 2003, Section 3 at page 1. Add your comment on this item92

[10] Television, but not by much. Tom Genova’s TV history site, at URL: http://www.tvhistory.tv/timeline.htm, tells us that NBC began commercial broadcasts in 1941. See also Erik Barnouw, Tube of Plenty: The Evolution of American Television 99-148 (rev. ed. 1982). According to Asaf Goldschmidt’s and Atsushi Akera’s introduction to the University of Pennsylvania’s special exhibition on John Mauchley, at <http://www.library.upenn.edu/special/gallery/mauchly/jwmintro.html>, the ENIAC computer came along in 1946. See also 16 Encyclopedia Britannica 641-42 (1989). Add your comment on this item93

[11] The 2003 Information Please/Time Almanac lists New Zealand’s population at 3,908,037. Time Almanac 2003 with Information Please 828 (2002). The government of New Zealand currently describes its population as “a diverse multi-cultural population of 4 million people, the majority of whom are of British descent. New Zealand's indigenous Maori make up around 14 percent of the population.” See NZGO, People and History, URL: < http://www.purenz.com/index.cfm/purenz_page/3DD63CE4-18FD-402B-A74A-A4C7A7AF5630.html >. The SNZ Pop Clock at <http://www.stats.govt.nz/domino/external/web/prod_serv.nsf/htmldocs/Pop+Clock> estimates New Zealand’s population on 11 October 2003 at 04:16:30 AM as 4,025,641 Add your comment on this item94

[12] According to the Information Please/Time Almanac, Senator Mikulski was born in 1936. Information Please/Time Almanac, supra note 11, at 45. The 2001 World Almanac doesn’t include that information, but will tell you that Colin Powell was born in 1937. See World Almanac and Book of Facts 2001 at 320 (2000). See also, e.g., The Political Graveyard Index to Politicians at URL: <http://politicalgraveyard.com/bio/midkiff-milen.html>. Add your comment on this item95

[13] See, e.g., Yochai Benkler, Coase’s Penguin, or Linux and the Nature of the Firm, 112 Yale L.J. (2003) Add your comment on this item96

[14] See Sesame, Plant (Plants), 1Up Info Encyclopedia, URL: http://www.1upinfo.com/encyclopedia/S/sesame.html: (“Sesame was introduced by African slaves to the U.S. South, where it sometimes becomes a weed. The sesame was once credited with mystic powers.”). Add your comment on this item97

[15] See supra note 2. Add your comment on this item98

[16] See, e.g., Michael Froomkin’s Home Page at URL: http://www.law.tm. Add your comment on this item99

[17] See, e.g., Rick Sowash: Composer and Author, at URL: http://www.sowash.com.View comments on this item Add your comment on this item100

[18] See, e.g., Andrew Ross Sorkin, Building a Web Media Empire on a Daily Dose of Fresh Links, Mew York Times, Nov. 17, 2003 at C1, online at URL: <http://www.nytimes.com/2003/11/17/technology/17blog.html>. For a sample of the assortment of blogs currently posted in the Web, see <http://directory.google.com/top/computers/Internet/On_The_Web/Weblogs>; http://www.daypop.com; http://www.blogspot.com; http://new.blogger.com. Add your comment on this item101

[19] See Lawrence Lessig, The New Road to the White House: How grassroots blogs are transforming presidential politics, Wired 11.11, November, 2003, at 136.  Add your comment on this item102

[20] I quote verbatim the text of two recent email messages: View comments on this item Add your comment on this item103

-------------------------------------------------- Add your comment on this item104

Date: Sat, 18 Oct 2003 21:38:14 -0400
To: cyberprof_list@uclink4.berkeley.edu
From: Jessica Litman <litman@mindspring.com>
Subject: Hamilton v. Microsoft

Has anyone seen a copy of the complaint in Hamilton v. Microsoft, the class action suit filed in California recently seeking to hold Microsoft liable for the vulnerability of its software?

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 Add your comment on this item107

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Date: Sat, 18 Oct 2003 19:38:14 -0700
To: Jessica Litman <litman@mindspring.com>
From: Wendy Seltzer <wendy@seltzer.com>
Subject: Re: Hamilton v. Microsoft
Cc: cyberprof_list@uclink4.berkeley.edu

I've put a copy up at <http://www.eff.org/~wseltzer/hamilton_v_microsoft.pdf> Much as I dislike Microsoft's operating system and tactics, a class action blaming the company for virus attacks and identity theft seems a heavy-handed way to clean them up.

--Wendy

 Add your comment on this item111

[21] Volunteers also turn into entrepreneurs. Yahoo! and the Internet Movie Database are businesses that began as content authored by volunteers that morphed into commercial services. See Litman, supra note 1, at 103-105.View comments on this item Add your comment on this item112

[22] If you read a lot of science fiction, this model should feel familiar. A number of authors have portrayed worlds in which characters are connected to a massive electronic database, that they can query at will. See, e.g., Frank Herbert, Dune (1965); Joan Vinge, The Snow Queen (1980). This is different. The World Wide Web is certainly not a database in the conventional sense. The information has neither structure nor organization. It has no index, no table of contents, no hierarchy. The domain name system supplies a hierarchy of location, but information is not organized in any analogous fashion. Instead, the Internet gives me access to a fluid conglomeration of the items millions of individuals have chosen to make publicly available. This is the hive mind, where all members of the species share one another’s knowledge and experiences. See, e.g., Orson Scott Card, Ender’s Game (1985); Barbara Hambly, The Time of the Dark (1982); Robert A. Heinlein, Methuselah’s Children, reprinted in Robert A. Heinlein, The Past Through Tomorrow 655, 794-808 (1967); Robert A. Heinlein, The Puppet Masters (1951); Robert A. Heinlein, Starship Troopers (1959); Frank Herbert, Hellstrom’s Hive (1974); Nancy Kress, Probability Moon (2000); Theodore Sturgeon, To Marry Medusa, reprinted in Theodore Sturgeon, The Joyous Invasions (1965). Books published during the cold war commonly protrayed hive mind species as the enemy. Hive minders were thinly disguised communists, against whom clever, independent capitalists always managed to prevail. See Card, supra; Heinlein, Starship Troopers, supra; Herbert, supra; Sturgeon, supra. Frequently insectoid, hive mind creatures possessed great superiority of knowledge, often balanced by a deficit of creativity or ingenuity. See especially Card, supra. Add your comment on this item113

[23] See, e.g., John Borland, Paul Festa, David Becker & Mike Yamanoto, Mother of Invention, c|net New.com, April 14, 2002 at URL: http://news.com.com/2009-1032-995679.html. Add your comment on this item114

[24] See, e.g., infra footnotes 27, 60, 121, and 119, and accompanying text. Add your comment on this item115

[25] See Litman, supra note 1, at 89-90 . See, e.g., Herbert I. Schiller, Public way or private road? The 'information highway,' The Nation, July 12, 1993, at 64.View comments on this item Add your comment on this item116

[26] See Jessica Litman, Electronic Commerce and Free Speech, 1 Ethics & Information Technology 213 (1999). Add your comment on this item117

[27]PepsiMan is a promotional superhero featured in Japanese commercials for Pepsi Cola. See Pepsinut, PepsiMan at URL: < http://www.pepsinut.com/PepsiMan.htm>. The campaign has spawned a Japanese-only Nintendo game and a variety of promotional toys. See id. The “Fuct of PepsiMan” is a pepsi-scented PepsiMan action figure available in Japan and in the occasional US anime store. See URL: <http://www.doctorhook.com/pepsiuniversecom/pmanaction.html>;; Francine’s diary for Nov. 14, 2000 at URL: http://francine.diaryland.com/20001114.html.View comments on this item Add your comment on this item118

[28] See, e.g., Carl M. Cannon, The Real Computer Virus, Amer. Journalism Rev., April, 2001, at 28 (“Internet …has an unmatched capacity for distributing misinformation”); Paul S. Piper, Better Read That Again, 8 Searcher, Sept. 1, 2000, at 40 (“Misinformation on the Internet is, and always will be, a problem.”). Add your comment on this item119

[29] See, e.g., Michael Ollove, Turning the Pages, Baltimore Sun, Jan. 10, 2000, at 1E; Terry Gross, David Talbot, Founder And Editor In Chief Of Salon Magazine, Discusses The Trials And Tribulations Of Running An Online Magazine, Fresh Air, June 14, 2000. Add your comment on this item120

[30] See Cannon, supra note 28. Add your comment on this item121

[31] Law is a particularly curious example. The editors of most law journals are students, and the closest we get to fact checking is cite-checking, where students will confirm that sources support the assertions for which they are cited. In practice, anything can be corroborated merely by identifying some document that asserts it. Add your comment on this item122

[32] See Florence Fabricant, Magazine Corrects a Cookie Recipe, New York Times, Aug. 7, 1991 at C4. (Gourmet magazine published a recipe calling for “oil of wintergreen” as an ingredient. Upon discovering that oil of wintergreen is toxic, the magazine sent out a warning letter to its 800,000 subscribers.)View comments on this item Add your comment on this item123

[33] For my Law in Cyberspace seminar, I post all students’ assignments. See URL: <http://www.law.wayne.edu/litman/classes/cyber/syllabus.html>. I regularly get email from complete strangers objecting to one of my students’ characterizations of facts or law and requesting or demanding that I replace the file with a corrected version. Add your comment on this item124

[34] According to the Audio Engineering Society Historical Committee, “Thomas Alva Edison, working in his lab, succeeds in recovering Mary's Little Lamb from a strip of tinfoil wrapped around a spinning cylinder.” AES HC, Audio Timeline, URL: http://www.aes.org/aeshc/docs/audio.history.timeline.html. Edison and Emile Berliner each has a plausible claim to the invention of the first phonograph record. Edison’s invention was first, but used rotating cylinders rather than a flat disk. Berliner appears to have invented the disk format for phonograph recordings. See infra notes 35-40 and accompanying text. Add your comment on this item125

[35] See The History of Turntablism, URL: http://www.scratchdj.com/history.shtml Add your comment on this item126

[36] Frederic W. Nile, Emile Berliner: Marker of the Microphone (1926) Add your comment on this item127

[37] See Hall of Fame Inventor Profile: Emile Berliner at URL: <http://www.invent.org/hall_of_fame/13.html> Add your comment on this item128

[38] See S. Berliner III, Emile Berliner Page, URL: <http://home.att.net/~Berliner-Ultrasonics/berlemil.html>.

[39] Tommy Cichanowski, “Tommy’s History pf Western Technology” at URL: <http://www.luminet.net/~wenonah/history/edpart3.htm>.

[40] 24 Electronic Design No. 4 (Feb. 1976) Add your comment on this item129

[41] A.E. Housman. See, e.g., URL: <http://www.amherst.edu/~rjyanco/literature/alfrededwardhousman/poems/ashropshirelad/wheniwasoneandtwenty.html>. The answer is not in Bartlett’s Familiar Quotations (16th edition 1992). The Encyclopedia Britannica has a nice squib on Mr. Housman, but doesn’t mention the titles of any of his poems. See 6 Encyclopedia Britannica 85 (1989). The poem is included in Oscar Williams, A Little Treasury of Modern Poetry 62 (1952), but the book is indexed only by author and not by title. Add your comment on this item130

[42] We in the intellectual property community have in the past few years come to accept a version of that principle based on a primitive conception of the economic analysis of law: copyright promotes authorship by offering incentives to authors that encourage them to create new works and distribute them to the public. Thus, it has become conventional to argue that enhanced copyright protection is desirable if and only if it enhances incentives, or that any diminution in copyright protection will discourage the creation of new works by reducing authors’ and publishers’ incentives. See, e.g., Stephen Breyer, The Uneasy Case for Copyright, 84 Harv. L. Rev. 281 (1970); Deborah Tussey, Owning the Law: Intellectual Property Rights in Primary Law, 9 Fordham Intell. Prop., Media & Ent. L.J. 173, 226-28 (1998); [Valenti testimony]. The incentive rationale for copyright has become so conventional that it is easy to forget that it is in fact relatively recent. See Litman, supra note 1, at 79-81. The Supreme Court first articulated an incentive explanation for copyright in 1975, in a case in which it explained that copyright’s incentives for authors must yield to the public’s interest in broad dissemination of protected works. See Twentieth Century Music v. Aiken, 422 US 151, 156 (1975): Add your comment on this item131

The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. "The sole interest of the United States and the primary object in conferring the monopoly," this Court has said, "lie in the general benefits derived by the public from the labors of authors." (quoting Fox Film Corp. v. Doral, 286 U.S. 123, 127) Add your comment on this item132

(footnotes omitted). See also Mazer v. Stein, 347 U.S. 201, 219 (1952) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.”) Add your comment on this item133

The rationale has evolved into a justification for any expansion in the scope of copyright protection: stronger copyrights mean more powerful incentives mean that more works of authorship will be created and distributed to a larger slice of the public. Opponents of copyright expansion have tried to argue against enhancements within the confines of the incentive model, with little success. See, e.g., Eldred v. Ashcroft, __ U.S. __ (2002). Add your comment on this item134

[43] See Litman, supra note 1, at 151-65; War Stories, 20 Cardozo Arts & Entertainment Law Journal 337 (2002); Danny O’Brien, Something Completely Different, Wired 5.11, November, 2003, at 29, 31. Add your comment on this item135

[44] 1909 Copyright Act §§ 10, 19. Section 12 of the Act permitted copyright in designated classes of unpublished works to be secured through registration. Those works – lectures, plays, paintings, sculptures and motion pictures -- were commonly commercially exploited without distributing of copies to the public. Add your comment on this item136

[45] See William F. Patry, Latman’s The Copyright Law 154-55 (1986); see, e.g., J.A. Richards v. New York Post, 23 F. Supp. 619 (SDNY 1938). Add your comment on this item137

[46] See, e.g., London v. Biograph, 231 F. 696 (2d Cir. 1916); Stone & McCarrick v. Dugan Piano, 210 F. 399 (ED La. 1914).  Add your comment on this item138

[47] See Vincent Doyle et. Al., Notice of Copyright in 1 Studies on Copyright 229, 231 (1968). Add your comment on this item139

[48] See Alan Latman, The Copyright Law 121-41 (5th ed. 1979). Add your comment on this item140

[49] See Barbara Ringer, Renewal of Copyright in 1 Studies on Copyright 503, 583 (1968) Add your comment on this item141

[50] According to the Redstone Arsenal Historical Information, History of Black Military Service, URL: http://www.redstone.army.mil/history/integrate/history.htm, African American soldiers served side by side with whites as well as in segregated units until 1820, when Congress passed a law prohibiting the enlistment of blacks in the Army. Bennie J. McRae, Jr.’s Lest We Forget site at URL: <http://www.coax.net/people/lwf/hisusct.htm> explains that African American volunteers sought to serve in the Civil War, but Lincoln initially refused to permit enlistment of black soldiers. In 1862, Congress passed a law authorizing the use of black troops. A number of black companies were recruited and in 1863, the War Department established the Bureau of Colored Troops. During the Civil War, blacks served in segregated regiments, commanded by white officers. The Gilder Lehrman Institute of American History, at URL: <http://www.gliah.uh.edu/historyonline/integrating.cfm>, reports that black soldiers served side by side with whites until 1869, when Congress enacted a law requiring soldiers to fight in racially segregated units. In 1948, President Truman issued an executive order directing the armed forces to desegregate. Integration began slowly on a unit-by-unit basis, and in 1951, the Army Chief of Staff ordered all units to desegregate. Add your comment on this item142

[51] See Jane C Ginsburg and John M. Kernochan, One Hundred And Two Years Later: The U.S. Joins the Berne Convention, 13 Colum.-V.L.A. J. Law & the Arts 1 (1988) Add your comment on this item143

[52] See Litman, supra note 1, at 22-34. Add your comment on this item144

[53] Compare Alan Latman and Robert A. Gorman, Copyright for the Eighties: Cases and Materials 263-303 (1981) with Robert A Gorman & Jane C. Ginsburg, Copyright: Cases and Materials 383-413 (6th edition 2001). Add your comment on this item145

[54] See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,156 (1975); Fox Film Corp. v. Doyal, 286 U.S. 123, 127-8 (1932). See also Stewart v. Abend, 495 U.S. 207, 228-29 (1990); L. Ray Patterson, Copyright in Historical Perspective (1968); David Lange, Recognizing the Public Domain, 44 L. & Contemp. Probs. 147 (1981). Add your comment on this item146

[55] Pub. L. No. 94-553, 90 Stat. 2541.View comments on this item Add your comment on this item147

[56] Berne Convention Implementation Act, Add your comment on this item148

[57] In 1976, Congress enacted the 1976 Copyright Act. Although the 1976 Act required copyright notice, see 17 U.S.C. §§ 401, 402, it also included generous savings provisions that allowed copyright owners to cure notice defects. See 17 U.S.C. §§ 404, 405, 406. By muting the effect of no notice or inaccurate notice, Congress caused notice to stop performing both its function of establishing what was and was not protected by copyright, and also its function of notifying the public what rights it had and whom it needed to ask for permission to copy a work.View comments on this item Add your comment on this item149

[58] See 1 William F. Patry, Copyright Law and Practice 437-54 (1994). Add your comment on this item150

[59] There is a rich recent copyright literature analyzing the problems that have accompanied recent expansions in copyright rights. Most of the scholarship focuses on substantive expansion: in copyright subject matter, in the duration of copyright, and in the scope of copyright rights. See, e.g, James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 L. & Contemp. Probs. 33 (2003); Dennis S. Karjala, The Term of Copyright in Laura N. Gassaway, Growing Pains: Adapting Copyright for Libraries, Education and Society 33 1997); Lawrence Lessig, The Future of Ideas 196-99 (2001); Neil Weinstock Netanel, Locating Copyright within the First Amendment Skein, 54 Stan. L. Rev. 1, 12-30 (2001); L. Ray Patterson, Copyright and "the Exclusive Right" of Authors, 1 J. Intell. Prop. L. 1 (1993). Relatively little critical attention has focused on the formalities. Add your comment on this item151

[60] Someone named Susan Green submitted the classic version of the recipe to AllRecipe’s site at www.pierecipes.com, see < http://www.pierecipe.com/az/ShakerLemonPie.asp>. The same recipe was submitted by someone named Pat Dennis to the Carnegie Mellon University recipe server. See < http://www-2.cs.cmu.edu/~mjw/recipes/pie/sweet/shaker-lemon-pie.html>. The Encyclopedia Britannica Online at http://www.britannica.com/ (“Search Results You Can trust”) includes entries for “lemon,” “pie” and “Shaker,” but nothing for “shaker lemon pie.” Add your comment on this item152

[61] See 17 U.S.C. § 201(d); H.R. Rep. No. 1476, 94th Cong., 2d Sess. 123 (1976). Add your comment on this item153

[62] See Mark A. Lemley, Dealing With Overlapping Copyrights on the Internet, 22 University of Dayton Law Review 547 (1997); Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 Case Western L. Rev. 673 (2003); John Schwartz, Music Sharing Service at M.I.T. is Shut Down, New York Times, Nov. 3, 2003, at C13. Add your comment on this item154

[63] See Loren, supra note 62, at 698. Add your comment on this item155

[64] See 17 U.S.C. § 101:View comments on this item Add your comment on this item156

To perform or display a work “publicly” means —  Add your comment on this item157

(2) to transmit or otherwise communicate a performance or display of the work … to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Add your comment on this item158

[65] See TV Toons v. MP3.com, 134 F. Supp. 2d 546 (S.D.N.Y. 2001); UMG Recordings v. MP3.com, 109 F. Supp. 2d 223, (S.D.N.Y. 2000); see also Schwartz, supra note 62 (MIT music streaming service suspended because of dispute over whether the licensors of the various elements of the service had the authority to sell MIT the licenses it purchased).. Add your comment on this item159

[66] See Loren, supra note 62, at 696-702. The recognition that any Internet appearance of a work should be treated as an invasion of multiple copyright rights appears to have been first publicly articulated by Bruce Lehman’s task force in an effort to settle the dispute between composers and music publishers over whether Internet transmissions of music should be deemed public performances (licensed by ASCAP, BMI & SESAC) or distributions (licensed by the Harry Fox Agency, a subsidiary of the National Music Publishers Association). The Task Force’s answer was both. See Information Infrastructure Task Force, supra note 7, at 213-25; Lemley, supra note 62, at __. Add your comment on this item160

[67] See, e.g., Michael W. Carroll, A Primer on U.S. Intellectual Property Rights Applicable to Music Information Retrieval Systems, Ill. J. of Law, Tech. & Pol. (forthcoming Winter 2004); Loren, supra note 62, at 696-98.View comments on this item Add your comment on this item161

[68] See Carroll, supra note 67. Add your comment on this item162

[69] See Intellectual Reserve v. Utah Lighthouse Ministry, 5 F. Supp. 2d 1290 (D.Utah 1999); Gorman & Ginsburg, supra note 53, at 416-20. Add your comment on this item163

[70] See Playboy v. Frena, 839 F, Supp, 1552 (M.D. Fla. 1993); Gorman & Ginsburg, supra note 53, at 544-47. Add your comment on this item164

[71] See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Add your comment on this item165

[72] Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir, 2002), withdrawn __ F.3d __, 2003 U.S. App. LEXIS 13562 (9th Cir. 2003); Cf. Intellectual Reserve v. Utah Lighthouse Ministry, 5 F. Supp. 2d 1290 (D.Utah 1999)(posting URL of infringing material on the web is contributory infringement). See generally Stacey L. Dogan, Infringement Once Removed: The Perils of Hyperlinking to Infringing Content, 87 Iowa L. Rev.829 (2002). Add your comment on this item166

[73] See Electronic Frontier Foundation, RIAA Subpoena Database Query Tool, at URL: http://www.eff.org/IP/P2P/riaasubpoenas/. Or you could rely on the proprietary “RIAA Case Activity” dervice from Lexis/Nexis Courtlink at URL: < http://www.lexisnexis.com/trial/nalm100181clinkriaa.asp>, which, as of November 2, 2003, was significantly out of date Add your comment on this item167

[74] H. R. 2752, 108th Cong., 1st Sess. (2003). Add your comment on this item168

[75] See O’Brien, supra note 43, at 31. Add your comment on this item169

[76] See A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 925 (N.D. Cal. 2000)(plaintiffs claim “it would be burdensome or even impossible to identify all of the copyrighted music they own” but have made a minimal effort to describe the works involved in the lawsuit.), aff’d in part, rev’d in part, 239 F.3d 1004 (9th Cir. 2001). Add your comment on this item170

[77] See, e.g., Schwartz, supra note 62. Add your comment on this item171

[78] See, e.g., Marci Hamilton, The Constitution and Your CDs, Findlaw’s Writ, Sept. 19, 2000, at URL: http://writ.news.findlaw.com/hamilton/20000919.html. Add your comment on this item172

[79] See Sound Recordings As Works Made For Hire: Hearing Before the Subcomm. On Courts and Intellectual Property of the House Comm. on the Judiciary, 106th Cong., 2d Sess. (May 25, 2000) (Statement of Marybeth Peters, Register of Copyrights).  Add your comment on this item173

[80] New York Times v. Tasini, 533 U.S. 483 (2001). Add your comment on this item174

[81] Random House v,. Rosetta Books, 150 F. Supp. 2d 613 (S.D.N.Y. 2001) , aff’d, 283 F.3d 490 (2d Cir. 2002). See also Greenberg v. National Geographic, 244 F.3d 1267 (11th Cir. 2001). Add your comment on this item175

[82] Compare Boosey & Hawkes Music Publishers, Ltd. V. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998), with Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988). Add your comment on this item176

[83] See Marci Hamilton, The Story Behind the MP3.com Judgment, Findlaw’s Writ, Nov. 23, 2000, at URL: http://writ.news.findlaw.com/hamilton/20001123.html. Add your comment on this item177

[84] See, e.g., Lawrence Lessig, The Future of Ideas 120-202 (2001); Yochai Benkler, A Political Economy of the Public Domain: Markets in Information versus the Marketplace of Ideas, in Rochelle Dreyfuss, Diane L Zimmerman & Harry First, Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society 267 (2001). Add your comment on this item178

[85] See and hear, e.g., K(eep) I(t) SS(imple) W(eb) D(esign), The Syncopated Clock, URL: http://kissd.8m.com/Jukebox/51-39.html. Add your comment on this item179

[86] The Music of Room A-9! (2003). The CD includes three cuts by Faith Hill, three cuts by the Dixie Chicks, four cuts by Kabah, four cuts by the Sugar Beats, two songs by Sarah Evans, one each by Toby Keith and George Straight, and finally a rendition of “Chicken Cheer” by the students of Room A-9. Add your comment on this item180

[87] Feist Publications v, Rural Telephone Service, 499 U.S. 340, 347 (1991)(“facts do not owe their origin to an act of authorship”.)  Add your comment on this item181

[88] I probably need to stop here and defend my use of the term “sharing” since it’s recently come under attack. Some people argue that whatever using peer-to-peer networking involves, it shouldn’t be called “sharing” Richard Parsons, the CEO of Time-Warner, told the US Congress last year: Add your comment on this item182

“The popular term for trafficking in copyrighted works -- “file sharing”  --  is a misnomer.  It isn’t sharing.  It’s online shoplifting. ”  Add your comment on this item183

Ensuring Content Protection in the Digital Age: Hearing Before the Subcomm. On Telecommunications of the House Commerce Comm., 107th Cong, 2d Sess. 30 (April 25, 2002) (prepared statement of Richard Parsons, AOL Time-Warner). Similarly, lawyer David Kendall, who represented President Clinton during his impeachment and currently represents Hollywood on copyright issues, has said: View comments on this item Add your comment on this item184

“The word “file-sharing” is a euphemism and a serious misnomer. … In fact, it’s not really sharing at all, because if I share a piece of cake with you, we’re each doing with a little less -- I have half a piece and you have half a piece.  This doesn’t hold true for digital distribution since I don’t lose anything by “sharing” with you…” Add your comment on this item185

David Kendall, Coyright in Cyberspace, March 25, 2002 Brigance lecture to Wabash College (online at http://www.copyrightassembly.org/briefing/DEKWabashSpeech4.htm). Kendall is talking about sharing cake or cookies. That’s the wrong metaphor. Sharing digital objects is less like sharing cookies and more like sharing ideas – when I share my ideas, I don’t lose anything. Of course, it’s precisely the difference between cookies and ideas that causes us to treat the first as tangible property and the second as intellectual property. Cookies have to be allocated. Ideas need not. Indeed, the purpose of the intellectual property regime is to achieve widespread sharing by temporarily endowing IP with some – and only some -- of the attributes of tangible property. If we can achieve widespread sharing without temporarily endowing IP with those attributes, then we ought at least to question whether the attributes of tangible property are the tools we need. Add your comment on this item186

[89] See, e.g., Michael Steven Green, Copyrighting Facts, 78 Ind. L.J. 919 (2003); Hartwell Harris Beall , Comment: Can Anyone Own A Piece Of The Clock?: The Troublesome Application Of Copyright Law To Works Of Historical Fiction, Interpretation, And Theory, 42 Emory L.J. 253 (1993); Anant S. Narayanan, Note: Standards Of Protection For Databases In The European Community And The United States: Feist And The Myth Of Creative Originality, 27 GW J. Int'l L. & Econ. 457 (1993). Add your comment on this item187

[90] E.g., Jane C. Ginsburg, Sabotaging and Reconstructing History: A Comment on the Scope of Copyright Protection in Works of History after Hoehling v. Universal City Studios, 29 J. Copyright Soc’y 647 (1982); Robert Gorman, Fact or Fancy? The Implications for Copyright, 29 J.­Copr. Soc'y 560 (1982); Beryl Jones, Copyright: Factual Compilations and the Second Circuit, 52 Brooklyn L. Rev. 679 (1986). Add your comment on this item188

[91] See, e.g., Jane C. Ginsburg, “No Sweat” Copyright, 92 Colum. L. Rev. 338 (1992). Add your comment on this item189

[92] The current version is H.R.  3261, 108th Cong., 1st Sess. (2003). Add your comment on this item190

[93] See H.R. 2652, 105th Cong., 2d Sess. (1998). Add your comment on this item191

[94]The Sugar Beat’s website at http://www.sugar-beats.com/about/ explains that the musicians are thirty-something parents who wondered why kids and parents didn’t like to listen to the same music and hit on the idea of recording “hip” and “funky” tunes from the 60s, 70s and 80s in children’s’ voices, to entice kids to sing along. I wouldn’t have thought it would work either, but Room A-9’s experience suggests that I don’t have a good handle on what sells. Add your comment on this item192

[95] See Ku, supra note 95, at 305 (2002). Add your comment on this item193

[96] See, e.g., Music on the Internet: Is There an Upside to Downloading?, Hearing Before the Senate Judiciary Comm., 106th Cong, 2d Sess. (testimony of Fred Ehrlich, Recording Industry Association of America) (July 11, 2000), at URL: <http://www.riaa.com/news/newsletter/press2000/071100_2.asp>. Add your comment on this item194

[97] See, e.g., LetItSing.com (your lyrics engine on the Internet), at http://www.letssingit.com/ (“The lyrics on this site are not only submitted by visitors, but also maintained by the visitors. You as visitor can submit and correct lyrics. These submissions are reviewed by other visitor whereafter they are placed in the archive. With this, LetsSingIt.com always has the newest lyrics.”). See also, e.g., Musicnotes.com (a licensed commercial sheet music sales site with a lyrics search engine) at URL: http://www.musicnotes.com.View comments on this item Add your comment on this item195

[98] If musicians create music primarily because of the control-based incentives supplied by copyright law, one might argue that any encouragement of sharing will reduce the incentives that inspire musicians to produce music. Whether musicians will make music if the copyright regime is altered is an empirical question, but the fact that so many musicians have complained so bitterly at their treatment at the hands of record companies without withholding their music suggests that musicians’ motivations are more complex than the simple copyright-incentive model captures. See Ku, supra note 95 at 300-11. In addition, history indicates that the absence of enforceable proprietary rights in music has not dissuaded musicians from creating and performing new works. See Michael W. Carroll, Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form of Property, 72 U. Cinn. L. Rev. (forthcoming 2004). Add your comment on this item196

[99] See Ku, supra note 95, at 305 (On the Internet, “copyright serves no purpose other than to transfer wealth from the public and, as we shall see, artists to distributors. In this case, the use of Napster is not theft--copyright is theft.”) View comments on this item Add your comment on this item197

[100] I’d probably be comfortable if we found ourselves in a world in which noncommercial consumer-to-consumer file sharing was not illegal. Period. No quid pro quo. I’m confident that we’d figure out ways to ensure that creators of music and the businesses that market them earn money. I recognize that most people don’t share my confidence, and I’m willing to look hard for a middle ground. Add your comment on this item198

[101] See, e.g., Electronic Frontier Foundation, Let the Music Play <http://www.eff.org/share/>; Diane Leenheer Zimmerman, Authorship Without Ownership: Reconsidering Incentives In A Digital Age, 52 DePaul L. Rev. 1121(2003). Add your comment on this item199

[102] See Future of Music Coalition, Major Label Contract Clause Critique (Sept. 2, 2001), at URL: http://www.futureofmusic.org/contractcrit.cfm. Add your comment on this item200

[103] But see a variety of reports indicating that peer-to-peer file sharing leads to increased CD sales. Janis Ian, The Internet Debacle: An Alternative View, May, 2002, at URL: http://www.janisian.com/articles.html (“every time we make a few songs available on my website, sales of all the CDs go up. A lot”); Jupiter Media Metrix research as reported by Reuters in May 2002.. Add your comment on this item201

[104] See, e.g., Neil W. Netanel, Impose a Noncommercial Use Levy to Allow Free P2P File Swapping and ReMixing, U. of Texas Law, Public Law Research Paper No. 14 (Nov. 15, 2002); William Fisher III, An Alternative Compensation System in Promises to Keep: Technology, Law and the Future of Entertainment (forthcoming 2004); Ku, supra note 95, at 312-21; Glynn S. Lunney, The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act, 87 Va. L. Rev. 813, 852-69, 886-920 (2001). See also Zimmerman, supra note 101 (“street performer protocol”); EFF, Making P2P Pay Artists, at URL: http://www.eff.org/share/compensation.php (summarizing various proposals). Add your comment on this item202

[105] Nor should a sense of justice cause us discomfort in allocating the compensation directly to the composers and performers. Their contracts with recording companies and music publishers don’t envision any part of the take from peer-to-peer file trading, since they were either negotiated before the birth of Napster or drafted in the hopeful expectation that peer-to-peer file traders would soon be extirpated. Add your comment on this item203

[106] Neil W. Netanel, supra note 104; Fisher, supra note 104; Ku, supra note 95, at 312-21; Lunney, supra note 104. See also Richard Stallman, Copywrong, WIRED 1.03 at (July 1993)(proposing a tax in return for unrestricted digital copying); Zimmerman, supra note 101 (“street performer protocol”); EFF, Making P2P Pay Artists, at URL: http://www.eff.org/share/compensation.php (summarizing various proposals). Add your comment on this item204

[107] See Netanel, supra note 104. Add your comment on this item205

[108] See Fisher, supra note 104.  Add your comment on this item206

[109] See Ku, supra note 95, at 311-24. Add your comment on this item207

[110] Lunney, supra note 95, at 911-20. Add your comment on this item208

[111] Netanel limits his noncommercial user privilege to published works of communicative expression as distinguished from “tools” – a category in which he places software. See Netanel, supra note 104, at 26. But see Junger v. Daly, 209 F.3d 481 (6th Cir. 2000)(software is expression protected by the first amendment). Add your comment on this item209

[112] Fisher, supra note 104, at  Add your comment on this item210

[113] Ku, supra note 95, at 321-24. Add your comment on this item211

[114] Fisher, supra note 104, at  Add your comment on this item212

[115] See 17 U.S.C. § 1008. Add your comment on this item213

[116] Id. § 109. Add your comment on this item214

[117] See id. §§ 1003, 1004.View comments on this item Add your comment on this item215

[118] See Litman, supra note 1, at 178-86; Loren, supra note 59, at 716-19. Add your comment on this item216

[119] See Molikidan Tunksuu, Dragonball Z a Titles and AirDates Guide, at URL: http://epguides.com/DragonballZ/. Dragonball Z is a violent and modestly homoerotic product of Japanese animation derived from a manga (comic book) authored by Akira Toriyama. The original manga and animated series appear to have been intended for an audience of grownups, but Funimation has edited them to make them more nearly suitable for children and licensed them to the Cartoon Network. See Usenet News Groups alt.fan.dragonball, URL: http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&oe=UTF-8&group=alt.fan.dragonball, and alt.fan.dragonball.us, URL: http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&oe=UTF-8&group=alt.fan.dragonball.us.. The original manga have been translated into English and published by Viz Communications; the original Japanese television episodes can be viewed (in Japanese) on the International cable channel on Sunday evenings at 10:30 p.m. EST. Add your comment on this item217

[120] See Jessica Litman, Ethical Disobedience, 6 Ethics and Information Technology __ (forthcoming 2004). Add your comment on this item218

[121] See Randy Cohen, The Ethicist: Is it Ethical to Google After A Blind Date?, New York Times Magazine, Dec. 15, 2002, at 50; Neil Swidery, A Nation of Voyeurs: How the Internet Search Engine Google is Changing What We Can Find Out About One Another – And Raising Questions About Whether We Should, Boston Globe Magazine, Feb. 2, 2003, at 10. Add your comment on this item219

[122] Here I part company from both Netanel and Fisher, who insist that compensation under their proposed alternatives should flow to the copyright owners rather than to the creators of works. I am uncertain how much their positions are influenced by a perception that their proposals are politically infeasible unless current copyright owners believe that they will continue to collect the lions’ share of any proceeds. Netanel and Fisher presumably adopt the position they do in part because it might make it more palatable to politically powerful copyright owners and therefore might increase the small chance that a form of their plans might actually be adopted. Add your comment on this item220

[123] It makes sense to impose a fee on the commercial activities and objects most heavily involved in peer-to-peer music file trading. I include in this commercial peer-to-peer file trading software, whether sold or advertising-supported. I’d personally also include the hardware and software that allows people to use their computers as home entertainment centers, especially those bundled into a computer by original equipment manufacturers: computer sound cards, computer speakers and software for CD ripping and music playing. It may make sense to collect a fee on broadband access, either as a broadband tax or a quasi-negotiated broadband peer-to-peer subscription fee. We need to remember, though, that the consumers who are engaging in this behavior are providing the valuable services that in the bricks and mortar world are provided by CD burning plants, warehouses, trucks, record stores, and radio broadcasters, and they should be compensated accordingly. See Ku, supra note 95, at 300-05. The fees consumers pay to engage in file trading don’t need to replace the income of the intermediaries they’re replacing, and I think those fees shouldn’t be large.  Add your comment on this item221

[124] See H.R. 1417, Copyright Royalty and Distribution reform Act of 2003, 108th Cong, 1st Sess. (2003). Add your comment on this item222

[125] Creators should be encouraged to designate agents to collect on their behalves, and should be permitted to designate percentages of any proceeds that should be disbursed directly to intermediaries under whatever contracts might call for a royalty split. Add your comment on this item223

[126] I believe that in general outline, this solution is appropriate for copyrighted works other than music. Cf. Litman, supra note 1, at 180-86 (outlining alternative to current copyright law). I focus on music here because the differences between my proposal and current law are narrowest in the music context, and because the peer-to-peer file sharing of music recordings is perceived to be the current emergency facing copyright legislators. Add your comment on this item224

[127] I say “continue to participate” because my opt-out mechanism excludes any works that have already been made available to the public. Those works will be subject to lawful sharing whether the creator or copyright owner objects or not. If, as many claim, the recording and music industries are intent on protecting their hot new hits from peer-to-peer networking but are resigned to the traffic in unauthorized copies of older releases, that feature should not be too bitter to swallow. Add your comment on this item225

[128] To the extent possible, we should do this without further undermining the United States’ debatable position that it complies with the Berne Convention. Our argument that US law protected droit morale, always dubious, seems even less tenable after Dastar Corp. v. Twentieth Century Fox Film Corp., __ U.S. __, 123 S. Ct. 2041(2003), and the WTO has already ruled that 17 U.S.C. § 110(5) violates our treaty obligations under Berne. See International Developments, Entertainment L. Rep., Nov. 14, 2001; WTO, Award of the Arbitrators in United States—Section 110(5) of the US Copyright Act, Nov. 9, 2001, at URL: <http://www.wto.org/english/tratop_e/dispu_e/160arb_25_1_e.pdf>. Add your comment on this item226

[129] See 17 U.S.C. § 1202: Add your comment on this item227

“copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work: Add your comment on this item228

(1) The title and other information identifying the work, including the information set forth on a notice of copyright. Add your comment on this item229

(2) The name of, and other identifying information about, the author of a work. Add your comment on this item230

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. Add your comment on this item231

(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work. Add your comment on this item232

(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work. Add your comment on this item233

(6) Terms and conditions for use of the work. Add your comment on this item234

(7) Identifying numbers or symbols referring to such information or links to such information. Add your comment on this item235

(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work. Add your comment on this item236

[130] I’ve been unable to get a definitive answer to my question whether any extant file format (for example, one of the formats generated by the now moribund Secure Digital Music Initiative, see URL: http://www.sdmi.org), would fit the bill, or whether a new format would need to be designed. The chief difficulty in adopting any of the proprietary formats now in use seems to be in ensuring backward-compatibility with legacy CD players.View comments on this item Add your comment on this item237

[131] My preference would have been to name the format *.cmi, but “cmi” has a settled inconsistent meaning.  Add your comment on this item238

[132] According to GuitarSam’s Ezine, at URL: http://www.guitarsam.com/ezine/2001.2/5.htm (Feb.2001), Peter Noone, the Herman of Herman’s Hermits, performs to this day. Add your comment on this item239

[133] See Litman, supra note 1, at 111-121. Add your comment on this item240

[134] See, e.g., Practice Mgmt. Info. Corp. v. AMA, 121 F.3d 516 (9th Cir. 1996). Add your comment on this item241