EARLY
DRAFT 1
Sharing and Stealing 2
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. 4
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]
5
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. 6
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.
7
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. 8
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.
9
I. Someone knows what I want
to know 10
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. 11
Which came first, the
computer or network television?[10] 12
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. 13
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. 14
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. 16
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] 17
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. 18
Where is a copy of the complaint in Hamilton
v. Microsoft?[20]
19
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] 20
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] 21
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. 22
What is “the fuct of Pepsiman”?[27] 23
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] 24
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. 25
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. 26
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. 27
Who invented the phonograph?[34] 28
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.
29
II. Formalities and Default
Rules 30
Who wrote “When I was One-and-Twenty”?[41] 31
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. 32
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] 33
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. 34
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] 35
When was the U.S. army first officially racially segregated? 36
When was it officially integrated?[50] 37
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] 38
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. 39
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. 40
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] 41
How do you make Shaker
lemon pie?[60] 42
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: 43
[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] 44
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] 45
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] 46
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] 47
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. 48
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] 49
III. The Music of Room A-9 50
What are the lyrics to “The
Syncopated Clock?”[85] 51
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] 52
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] 53
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? 54
IV. Resetting the Default
Rules 55
Who are the Sugar Beats?[94] 56
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. 57
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.
58
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]
59
What’s the name of
that song that keeps going through my head?[97] 60
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] 61
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] 62
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]
63
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. 64
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. 65
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.
66
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. 67
How violent is next week’s episode of Dragonball Z?[119] 68
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. 69
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. 70
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. 71
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. 72
So, should I have a drink with
that guy or not?[121] 73
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] 74
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. 75
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]
76
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.
77
Whatever happened to
Herman’s Hermits?[132] 78
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] 79
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. 80
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. 81
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. 82
* 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. 83
[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”). 84
[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 >.
85
[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). 87
[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>. 89
[7] See Information Infrastructure Task
Force, Intellectual Property and the
National Information Infrastructure: The Report of the Working Group on
Intellectual Property Rights (1995). 90
[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. 92
[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). 93
[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 94
[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>. 95
[13] See, e.g., Yochai Benkler, Coase’s Penguin, or Linux and the
Nature of the Firm, 112 Yale L.J. (2003) 96
[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.”). 97
[16] See, e.g., Michael Froomkin’s Home Page at URL: http://www.law.tm. 99
[17] See, e.g., Rick Sowash: Composer and Author, at URL: http://www.sowash.com.
100
[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. 101
[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. 102
[20] I quote verbatim the text of two recent email
messages:
103
-------------------------------------------------- 104
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?
------------------------------------------------------------------- 107
------------------------------------------------------------------- 108
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
111
[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.
112
[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. 113
[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. 114
[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.
116
[26] See Jessica Litman, Electronic Commerce and Free Speech, 1 Ethics & Information Technology 213 (1999). 117
[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.
118
[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.”). 119
[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. 120
[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. 122
[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.)
123
[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. 124
[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. 125
[35] See The History of Turntablism, URL: http://www.scratchdj.com/history.shtml 126
[37] See Hall of Fame Inventor Profile: Emile Berliner at URL: <http://www.invent.org/hall_of_fame/13.html> 128
[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. 130
[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): 131
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) 132
(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.”) 133
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). 134
[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. 135
[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. 136
[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). 137
[46] See, e.g., London v. Biograph, 231 F. 696 (2d Cir. 1916); Stone
& McCarrick v. Dugan Piano, 210 F. 399 (ED La. 1914). 138
[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. 142
[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) 143
[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). 145
[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). 146
[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.
149
[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. 151
[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.” 152
[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. 154
To perform or
display a work “publicly” means — 157
(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. 158
[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).. 159
[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 __. 160
[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.
161
[69] See Intellectual Reserve v. Utah Lighthouse Ministry, 5 F. Supp. 2d
1290 (D.Utah 1999); Gorman & Ginsburg, supra note 53,
at 416-20. 163
[70] See Playboy v. Frena, 839 F, Supp, 1552 (M.D. Fla. 1993); Gorman
& Ginsburg, supra note 53,
at 544-47. 164
[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). 166
[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 167
[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). 170
[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. 172
[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). 173
[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). 175
[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). 176
[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. 177
[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). 178
[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. 179
[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. 180
[87] Feist Publications v, Rural Telephone Service, 499 U.S. 340, 347
(1991)(“facts do not owe their origin to an act of authorship”.) 181
[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: 182
“The popular term for trafficking in copyrighted
works -- “file sharing” -- is a misnomer. It isn’t
sharing. It’s online shoplifting. ” 183
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:
184
“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…” 185
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. 186
[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). 187
[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). 188
[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. 192
[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>. 194
[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.
195
[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). 196
[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.”)
197
[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. 198
[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). 199
[102] See Future of Music Coalition, Major Label Contract Clause Critique
(Sept. 2, 2001), at URL: http://www.futureofmusic.org/contractcrit.cfm. 200
[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.. 201
[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). 202
[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. 203
[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). 204
[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). 209
[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. 217
[120] See Jessica Litman, Ethical Disobedience, 6 Ethics and Information Technology __
(forthcoming 2004). 218
[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. 219
[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. 220
[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. 221
[124] See H.R. 1417, Copyright Royalty and Distribution reform Act of
2003, 108th Cong, 1st Sess.
(2003). 222
[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. 223
[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. 224
[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. 225
[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>. 226
[129] See 17 U.S.C. § 1202: 227
“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: 228
(1) The title and other information identifying the work, including the
information set forth on a notice of copyright. 229
(2) The name of, and other identifying information about, the author of
a work. 230
(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. 231
(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. 232
(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. 233
(6) Terms and conditions for use of the work. 234
(7) Identifying numbers or symbols referring to such information or
links to such information. 235
(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. 236
[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.
237
[131] My preference would have been to name the format *.cmi, but “cmi”
has a settled inconsistent meaning. 238
[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. 239