3. Unfortunately, the reality turns out _The Public Domain: Enclosing the Commons of the Mind

Bessen, "Patents and the Diffusion of Technical Information,"

Economics Letters 86 (2005): 122: "[S]urvey evidence suggests

that firms do not place much value on the disclosed information.

Moreover, those firms that do read patents do not use them

primarily as a source of information on technology. Instead,

they use them for other purposes, such as keeping track of

competitors or checking for infringement. There are, in fact,

sound theoretical reasons why the disclosed information may not

be very valuable. [Fritz] Machlup and [Edith] Penrose report

that the argument about diffusion is an old one, popular since

the mid-19th century. They also point out that, at least through

the 1950s, economists have been skeptical about this argument.

The problem, also recognized in the mid-19th century, is that

'only unconcealable inventions are patented,' so patents reveal

little that could not be otherwise learned. On the other hand,

'concealable inventions remain concealed.' " [Citations

omitted.]

4. Felix S. Cohen, "Transcendental Nonsense and the Functional

Approach," Columbia Law Review 35 (1935): 817.

5. For contrasting views of the sequence of events, see John

Feather, "Publishers and Politicians: The Remaking of the Law of

Publishing History 25 (1989): 45-72; Mark Rose, Authors and

Owners: The Invention of Copyright (Cambridge, Mass.: Harvard

University Press, 1993).

6. Tim O'Reilly points out that there are 32 million titles in

the Online Computer Library Center's "WorldCat" catalogue--this

is a reasonable proxy for the number of books in U.S. libraries.

Nielsen's Bookscan shows that 1.2 million books sold at least

one copy in 2005. This yields a ratio of books commercially

available to books ever published of about 4 percent. But of

those 1.2 million books, many are in the public domain--think of

Shakespeare, Dickens, Austen, Melville, Kipling. Thus the

percentage of books that are under copyright and commercially

available may actually be considerably lower than 4 percent. See

http://radar.oreilly.com/archives/2005/11/oops_only_4_of_titles_

are_bein.html. For a lucid account of the statistics in the

context of the Google Book Search Project, see

http://lessig.org/blog/2006/01/google_book_search_the_argumen.ht

ml.

7. See Barbara Ringer, "Study Number 31: Renewal of Copyright,"

reprinted in U.S. Senate Committee on the Judiciary,

Subcommittee on Patents, Trademarks, and Copyrights, Copyright

Law Revision, 86th Cong., 1st Sess., Committee Print (1960),

187. See also HR Rep. 94-1476 (1976), 136; William M. Landes and

Richard A. Posner, The Economic Structure of Intellectual

Property Law (Cambridge, Mass.: Belknap Press, 2003), 210-212.

8. Details of the orphan works problem can be found in the

proposals presented to the copyright office by the Center for

the Study of the Public Domain; Orphan Works: Analysis and

Proposal: Submission to the Copyright Office--March 2005,

available at http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf,

and Access to Orphan Films: Submission

to the Copyright Office--March 2005, available at

http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf. Two recent

bills, in the Senate and House, respectively, attempt to address

the orphan works problems. The Shawn Bentley Orphan Works Act of

2008, S 2913, 110th Cong. (2008), would add a new section to the

and requiring the establishment of a database of pictorial,

graphic, and sculptural works. The House bill, The Orphan Works

Act of 2008, HR 5889, 110th Cong. (2008), is similar but not

identical. While these bills are a good start, the eventual

remedy will need to be more sweeping.

9. Bruce Sterling, Heavy Weather (New York: Bantam, 1994): 73

Notes: Chapter 2

1. Letter from Thomas Jefferson to Isaac McPherson (August 13,

1813), in The Writings of Thomas Jefferson, ed. Albert Ellery

Bergh (Washington, D.C.: The Thomas Jefferson Memorial

Association of the United States, 1907), vol. XIII, 326-338

(hereinafter Letter to McPherson), available at

http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1

.html (follow "May 1, 1812" hyperlink, then navigate to image

1057).

2. For example, attempting to procure a former stable master a

position (letter from Thomas Jefferson to Samuel H. Smith

[August 15, 1813], available at http://memory.loc

.gov/ammem/collections/jefferson_papers/mtjser1.html [follow

"May 1, 1812" hyperlink, then navigate to image 1070]), comments

on "Rudiments of English Grammar" (letter from Thomas Jefferson

to John Waldo [August 16, 1813], in Writings of Thomas

Jefferson, vol. XIII, 338-347), orthography of the plurals of

nouns ending in "y" (letter from Thomas Jefferson to John Wilson

[August 17, 1813], Writings of Thomas Jefferson, vol. XIII,

347-348), accepting the necessary delay in the publication of a

study on the anatomy of mammoth bones (letter from Thomas

Jefferson to Caspar Wistar [August 17, 1813], available at

http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1

.html [follow "May 1, 1812" hyperlink, then navigate to image

1095]), and discussing the Lewis biography (excerpt of a letter

from Thomas Jefferson to Paul Allen [August 18, 1813], Letters

of the Lewis and Clark Expedition with Related Documents

1783-1854, ed. Donald Jackson (Urbana: University of Illinois

Press, 1962), 586).

It is easy, in fact, reading this prodigious outpouring of

knowledge and enthusiasm, to forget the other side of Jefferson

and the social system that gave him the leisure to write these

letters. Just a few weeks before he wrote to McPherson, he wrote

a letter to Jeremiah Goodman about a slave called Hercules who

had been imprisoned as a runaway. "The folly he has committed

certainly justifies further punishment, and he goes in

expectation of receiving it. . . ." Letter from Thomas Jefferson

to Jeremiah A. Goodman (July 26, 1813), in Thomas Jefferson's

Farm Book, ed. Edwin Morris Betts (Charlottesville, Va.:

American Philosophical Society, 1999), 36. While leaving the

matter up to Goodman, Jefferson argues for leniency and for

refraining from further punishment. In that sense, it is a

humane letter. But this is one of the authors of the Declaration

of Independence, full of glorious principles--unalienable rights;

life, liberty, and the pursuit of happiness--enunciated in the

context of indignation at relatively mild colonial policies of

taxation and legislation. How could a man who thought that

taxing tea was tyranny, and that all men had an unalienable

right to liberty, believe that it was "folly" justifying

"further punishment" for a slave to run away? Reading the

letter--a curiously intimate, almost voyeuristic act--one finds

oneself saying "What was he thinking?"

3. Letter to McPherson, 333.

4. See Letter from Thomas Jefferson to Abraham Baldwin (April

14, 1802), in Writings of Thomas Jefferson, vol. XIX, 128-129.

5. See Paul Finkelman, Slavery and the Founders: Race and

Liberty in the Age of Jefferson, 2nd ed. (Armonk, N.Y.: M. E.

Sharpe, 2001), ix; Annette Gordon-Reed, Thomas Jefferson and

Sally Hemings: An American Controversy (Charlottesville:

University Press of Virginia, 1997) 1, 40-43, 60-61, 222.

6. Letter to McPherson, 336, quoted in John Perry Barlow,

"Economy of Ideas," Wired (March 1994): 84. For a careful

scholarly explanation of the antimonopolist origins of

eighteenth-century ideas such as Jefferson's, see Tyler T. Ochoa

and Mark Rose, "The Anti-Monopoly Origins of the Patent and

U.S.A. 49 (2002): 675-706. One scholar has offered a thoughtful

critique that suggests Jefferson's views were not, in fact,

representative either of the times or of the attitudes of the

other framers toward intellectual property. See Adam Mossoff,

"Who Cares What Thomas Jefferson Thought about Patents?

Reevaluating the Patent 'Privilege' in Historical Context,"

Cornell Law Review 92 (2007): 953-1012.

7. Letter to McPherson, 328.

8. Letter from Thomas Jefferson to Dr. Thomas Cooper (February

10, 1814), in Thomas Jefferson, Writings, ed. Merrill D.

Peterson (New York: Library of America, 1984), 1321.

9. Letter to McPherson, 333.

10. Ibid., 333-334.

11. Ibid.

12. Ibid., 335.

13. See ibid., 333-335.

14. Readers interested in learning more about this fascinating

man could begin with George Otto Trevelyan, The Life and Letters

of Lord Macaulay, London ed. (Longmans, 1876).

15. Thomas Babington Macaulay, speech delivered in the House of

Commons (February 5, 1841), in The Life and Works of Lord

Macaulay: Complete in Ten Volumes, Edinburgh ed. (Longmans,

1897), vol. VIII, 198 (hereinafter Macaulay Speech).

16. Ibid., 199.

17. Ibid., 198-199.

18. Graham v. John Deere, 383 U.S. 1, 7-11 (1966).

19. Adam Mossoff, "Who Cares What Thomas Jefferson Thought about

Patents? Reevaluating the Patent 'Privilege' in Historical

Context," Cornell Law Review 92 (2007): 953-1012. In a

thoughtful, carefully reasoned, and provocative article,

Professor Mossoff argues that Jefferson's views have been

misused by the courts and legal historians, and that if we

understand the use of the word "privilege" in historical

context, we see that the "patent privilege" was influenced by a

philosophy of natural rights as well as the antimonopolist

utilitarianism described here. I both agree and disagree.

Professor Mossoff 's central point--that the word "privilege" was

not understood by eighteenth-century audiences as the antonym of

"right"--is surely correct. To lay great stress on the linguistic

point that the patent right is "merely" a "privilege" is to rest

one's argument on a weak reed. But this is not the only

argument. One could also believe that intellectual property

rights have vital conceptual and practical differences with

property rights over tangible objects or land, that the framers

of the Constitution who were most involved in the intellectual

property clause were deeply opposed to the confusion involved in

conflating the two, and that they looked upon this confusion

particularly harshly because of an intense concern about state

monopolies. One can still disagree with this assessment, of

course; one can interpret Madison's words this way or that, or

interpret subsequent patent decisions as deep statements of

principle or commonplace rhetorical flourishes. Still it seems

to me a much stronger argument than the one based on the

privilege-right distinction. I am not sure Professor Mossoff

would disagree.

Professor Mossoff is also correct to point out that a "legal

privilege" did sometimes mean to an eighteenth-century reader

something that the state was duty-bound to grant. There was, in

fact, a wide range of sources from which an eighteenth-century

lawyer could derive a state obligation to grant a privilege.

Eighteenth-century legal talk was a normative bouillabaisse--a

rich stew of natural right, common law, utility, and

progress--often thrown together without regard to their

differences. Some lawyers and judges thought the common law

embodied natural rights, others that it represented the dictates

of "progress" and "utility," and others, more confusingly still,

seemed to adopt all of those views at once.

Nevertheless, I would agree that some eighteenth-century writers

saw claims of common-law right beneath the assertion of some

"privileges" and that a smaller number of those assumed common-

law right and natural right to be equivalent, and thus saw a

strong state obligation to grant a particular privilege based on

natural right, wherever that privilege had been recognized by

English or U.S. common law. But here is where I part company

with Professor Mossoff.

First, I do not believe that the most important architects of

the intellectual property clause shared that view when it came

to patents and copyrights. Jefferson, of course, was not one of

those who believed the state was so bound. "Society may give an

exclusive right to the profits arising from [inventions], as an

encouragement to men to pursue ideas which may produce utility,

but this may or may not be done, according to the will and

convenience of the society, without claim or complaint from any

body" (Letter to McPherson, 334, emphasis added). More

importantly, Jefferson's thinking about patents was infused by a

deeply utilitarian, antimonopolist tinge. So, I would argue, was

Madison's.

The quotations from Madison which I give later show clearly, to

me at least, that Madison shared Jefferson's deeply utilitarian

attitude toward patent and copyright law. I think there is very

good reason to believe that this attitude was dominant among the

Scottish Enlightenment thinkers whose writings were so

influential to the framers. I do not think it is an exaggeration

to say that the American Revolution was violently against the

world of monopoly and corruption that was the supposed target of

the English Statute of Monopolies (itself hardly a natural

rights document). Yes, those thinkers might fall back into

talking about how hard an inventor had worked or construing a

patent expansively. Yes, they might think that within the

boundaries of settled law, it would be unjust to deny one

inventor a patent when the general scheme of patent law had

already been laid down. But that did not and does not negate the

antimonopolist and, for that matter, utilitarian roots of the

Constitution's intellectual property clause.

Second, while I agree that there were strands of natural right

thinking and a labor theory of value in the U.S. intellectual

property system, and that they continue to this day-- indeed,

these were the very views that the Feist decision discussed in

Chapter 9 repudiated, as late as 1991--I think it is easy to make

too much of that fact. Is this signal or noise? There are

conceptual reasons to think it is the latter. Later in this

chapter I discuss the evolution of the droits d'auteur tradition

in France. Here, at the supposed heart of the natural rights

tradition, we find thinkers driven inexorably to consider the

question of limits. How far does the supposed natural right

extend--in time, in space, in subject matter? It is at that

moment that the utilitarian focus and the fear of monopoly

represented by Jefferson and Madison--and, for that matter, Locke

and Condorcet--become so important.

Professor Mossoff is correct to criticize the focus on the word

"privilege," and also correct that the ideas of natural right

and the labor theory of value always color attitudes toward

intellectual property claims. But it would be an equal and

opposite mistake to ignore two points. First, intellectual

property rights are profoundly different from physical property

rights over land in ways that should definitively shape policy

choices. Second, partly because of those differences, and

because of the influence of free-trade Scottish Enlightenment

thought on the American Revolution in particular, there was a

powerful antimonopolist and free-trade sentiment behind the

given the power "to promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Discoveries."

Does this really read like the work of a group of believers in

natural right? On the contrary, it reads like a limited grant of

power to achieve a particular utilitarian goal. That sentiment--

nicely encapsulated in but by no means limited to the words of

Jefferson--is still a good starting place for an understanding of

intellectual property.

20. See, e.g., Ochoa and Rose, "Anti-Monopoly Origins," and

Edward C. Walterscheid, The Nature of the Intellectual Property

Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S.

Hein, 2002). Ochoa, Rose, and Walterscheid stress the

antimonopolist concerns that animated some of those who were

most active in the debates about intellectual property. They

also point out the influence of the English Statute of

Monopolies of 1623, which attacked monopolies in general, while

making an exception for periods of legal exclusivity for a

limited time granted over "sole Working or Making of any Manner

of new Manufacture within this Realm, to the first true Inventor

or Inventors of such Manufactures which others at the time of

the Making of such Letters Patents Grants did not use, so they

be not contrary to the Law, nor mischievous to the State, by

Raising of the Prices of Commodities at home, or Hurt by Trade,

or generally inconvenient."

21. For example, in a letter to Madison commenting on the draft

of the Constitution: "I like it, as far as it goes; but I should

have been for going further. For instance, the following

alterations and additions would have pleased me: . . . Article

9. Monopolies may be allowed to persons for their own

productions in literature, and their own inventions in the arts,

for a term not exceeding . . . years, but for no longer term,

and no other purpose." Letter from Thomas Jefferson to James

Madison (August 28, 1789), in Writings of Thomas Jefferson, vol.

7, 450-451.

22. "Monopolies tho' in certain cases useful ought to be granted

with caution, and guarded with strictness against abuse. The

Constitution of the U.S. has limited them to two cases--the

authors of Books, and of useful inventions, in both which they

are considered as a compensation for a benefit actually gained

to the community as a purchase of property which the owner might

otherwise withhold from public use. There can be no just

objection to a temporary monopoly in these cases: but it ought

to be temporary because under that limitation a sufficient

recompence and encouragement may be given. The limitation is

particularly proper in the case of inventions, because they grow

so much out of preceding ones that there is the less merit in

the authors; and because, for the same reason, the discovery

might be expected in a short time from other hands. . . .

Monopolies have been granted in other Countries, and by some of

the States in this, on another principle, that of supporting

some useful undertaking, until experience and success should

render the monopoly unnecessary, and lead to a salutary

competition . . . But grants of this sort can be justified in

very peculiar cases only, if at all; the danger being very great

that the good resulting from the operation of the monopoly, will

be overbalanced by the evil effect of the precedent; and it

being not impossible that the monopoly itself in its original

operation, may produce more evil than good. In all cases of

monopoly, not excepting those in favor of authors and inventors,

it would be well to reserve to the State, a right to extinguish

the monopoly by paying a specified and reasonable sum. . . .

Perpetual monopolies of every sort are forbidden not only by the

Genius of free Governments, but by the imperfection of human

foresight." James Madison, "Monopolies, Perpetuities,

Corporations, Ecclesiastical Endowments" (1819), in "Aspects of

Monopoly One Hundred Years Ago," Harper's Magazine, ed. Galliard

Hunt, 128 (1914), 489-490; also in "Madison's 'Detatched

Memoranda,' " ed. Elizabeth Fleet, William & Mary Quarterly, 3rd

series, 3 no. 4 (1946): 551-552, available

at http://www.constitution.org/jm/18191213_monopolies.htm.

23. Adam Smith, The Wealth of Nations, pt. 3, Of the Expenses of

Public Works and Public Institutions, 2nd ed. (Oxford: Oxford

University Press, 1880), 2:339: "When a company of merchants

undertake, at their own risk and expense, to establish a new

trade with some remote and barbarous nation, it may not be

unreasonable to incorporate them into a joint-stock company, and

to grant them, in case of their success, a monopoly of the trade

for a certain number of years. It is the easiest and most

natural way in which the state can recompense them for hazarding

a dangerous and expensive experiment, of which the public is

afterwards to reap the benefit. A temporary monopoly of this

kind may be vindicated, upon the same principles upon which a

like monopoly of a new machine is granted to its inventor, and

that of a new book to its author. But upon the expiration of the

term, the monopoly ought certainly to determine; the forts and

garrisons, if it was found necessary to establish any, to be

taken into the hands of government, their value to be paid to

the company, and the trade to be laid open to all the subjects

of the state. By a perpetual monopoly, all the other subjects of

the state are taxed very absurdly in two different ways: first,

by the high price of goods, which, in the case of a free trade,

they could

buy much cheaper; and, secondly, by their total exclusion from a

branch of business which it might be both convenient and

profitable for many of them to carry on."

24. Macaulay Speech, 200-201.

25. Ibid., 201.

26. 17 U.S.C. § 304 (1998).

27. Eldred v. Ashcroft, 537 U.S. 186 (2003).

28. See Brief for Hal Roach Studios and Michael Agee as Amici

Curiae Supporting Petitioners, Eldred v. Ashcroft.

29. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-

298, 112 Stat. 2827 (1998).

30. Brief of George A. Akerlof, Kenneth J. Arrow, Timothy F.

Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen,

Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W.

Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll,

Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard

J. Zeckhauser as Amici Curiae In Support of Petitioners, Eldred

v. Ashcroft, available at http://cyber

.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/economists.

pdf.

31. U.S. Constitution, art. I, § 8, cl. 8.

32. "These are strong cases. I have shown you that, if the law

had been what you are now going to make it, the finest prose

work of fiction in the language, the finest biographical work in

the language, would very probably have been suppressed. But I

have stated my case weakly. The books which I have mentioned are

singularly inoffensive books, books not touching on any of those

questions which drive even wise men beyond the bounds of wisdom.

There are books of a very different kind, books which are the

rallying points of great political and religious parties. What

is likely to happen if the copyright of one of these books

should by descent or transfer come into the possession of some

hostile zealot?" Macaulay Speech, 199, 206.

33. Ibid., 205.

34. Ibid., 206.

35. Margaret Mitchell, Gone With the Wind (New York: Macmillan,

1936).

36. SunTrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357

(N.D.Ga. 2001). For thoughtful commentary see Jed Rubenfeld,

"The Freedom of Imagination: Copyright's Constitutionality,"

Yale Law Journal 112 (2002): 1-60. Robert S. Boynton provides a

beautifully readable account of copyright's restrictions in "The

Tyranny of Copyright?"

The New York Times Magazine (January 25, 2004): 40-45, available

http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html?ex=1

390366800&en=

9eb265b1f26e8b14&ei=5007&partner=USERLAND.

37. Yochai Benkler, "Through the Looking Glass: Alice and

Constitutional Foundations of the Public Domain," Law and

Contemporary Problems 66 (Winter-Spring 2003): 173.

38. SunTrust Bank v. Houghton Mifflin Co. 268 F.3d 1257 (11th

Cir. 2001).

39. See note 19 of this chapter for a discussion of the most

recent and thoughtful challenge to this claim.

40. Lord King, The Life of John Locke with Extracts from His

Correspondence, Journals and Common-Place Books vol. 1 (London:

Henry Colburn, 1830), 379-380.

41. Archives de la Préfecture de Police de Paris, ser. AA,

carton 200, feuilles 182-183, "Procès-verbal de police, section

de St. Geneviève, 23-24 octobre 1791." Quoted in Carla Hesse,

Publishing and Cultural Politics in Revolutionary Paris,

1789-1810 (Berkeley:University of California Press, 1991), 91.

42. Quoted in Hesse, Publishing and Cultural Politics, 100.

43. Victor Hugo, speech to the Conseil d'Etat, September 30,

1849, quoted in Bernard Edelman, Ownership of the Image:

Elements for a Marxist Theory of Law (London: Routledge & Kegan

Paul, 1979), 41.

44. Oeuvres de Condorcet, ed. A. Condorcet O'Connor and M. F.

Arago, vol. 11 (Paris: Firmin Didot Frères, 1847), 308,

available at http://books.google.com/books?id--

ZoGAAAAQAAJ.

45. Ibid., 308-309: "En effet, on sent qu'il ne peut y avoir

aucun rapport entre la propriété d'un ouvrage et celle d'un

champ, qui ne peut être cultivé que par un homme; d'un

meuble qui ne peut servir qu'à un homme, et dont, par

conséquent, la propriété exclusive est fondée sur la nature de

la chose. Ainsi ce n'est point ici une propriété dérivée de

l'ordre naturel, et défendue par la force sociale; c'est une

propriété fondée par la société même. Ce n'est pas un véritable

droit, c'est un privilége, comme ces jouissances exclusives de

tout ce qui peut être enlevé au possesseur unique sans

violence."

46. Ibid., 309: "Tout privilége est donc une gêne imposée à la

liberté, une restriction mise aux droits des autres citoyens;

dans ce genre il est nuisible non-seulement aux droits des

autres qui veulent copier, mais aux droits de tous ceux qui

veulent avoir des copies, et pour qui ce qui en augmente le prix

est une injustice. L'intérêt public exige-t-il que les hommes

fassent ce sacrifice? Telle est la question qu'il faut examiner;

en d'autres termes, les priviléges sont-ils nécessaires, utiles

ou nuisibles au progrès des lumières?"

47. James Boyle, Shamans, Software, and Spleens: Law and the

Construction of the Information Society (Cambridge, Mass.:

Harvard University Press, 1996), 55-57.

48. Hesse, Publishing and Cultural Politics, 121-122. As Hesse

points out, this legal legerdemain also produced an interesting

transformation in the status of the great authors of the French

tradition. "If the Old Regime first accorded Voltaire, Rousseau,

or Mirabeau the possibility of legal status as privileged

authors with perpetual private lineages for their texts, the

Revolution relocated these figures in the public domain, the

legal parallel to the civic rituals that unearthed them from

private gravesites and reposed their bodily remains in the

public temple of the Pantheon." Ibid., 123. One of the central

features of the debates described in this book is a starkly

different set of characterizations of the public domain. Is it a

communist repossession of the sacred rights of authors? The

noble common store of knowledge from which all future creators

can build? The worthless remainder of material that is no longer

worth protecting?

49. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton,

N.J.: Princeton University Press, 1957), 96-97.

50. Mark Helprin, "A Great Idea Lives Forever. Shouldn't Its

51. The two most influential and brilliant examples are Justin

Hughes, "The Philosophy of Intellectual Property," Georgetown

Law Journal 77 (1988): 287-366, and Wendy J. Gordon, "A Property

Right in Self-Expression: Equality and Individualism in the

Natural Law of Intellectual Property," Yale Law Journal 102

(1993): 1533-1610. Both of these articles attempt not to use

Locke as the basis for a world of absolute right, but instead to

focus on the Locke whose world of private property coexisted

with a commons--albeit one much diminished after the invention of

money. If one goes far enough into the Lockean conception--fine-

tuning "enough and as good" so as to allow for a vigorous

commons, and the claims of labor so as to take account of the

importance of the embedded contributions of culture and

science--then the differences between the Jeffersonian view and

the Lockean view start to recede in significance. Academics have

found the Lockean view attractive, noting, correctly, that Locke

is commonly brandished as a rhetorical emblem for property

schemes that he himself would have scorned. Yet when one looks

at the actual world of intellectual property policy discourse,

and the difficulty of enunciating even the simple Jeffersonian

antimonopolist ideas I lay out here, it is hard to imagine the

nuanced Lockean view flourishing. Consider this comment of

Jeremy Waldron's and ask yourself--is this result more likely

from within the Jeffersonian or the Lockean view?

Our tendency of course is to focus on authors when we think

about intellectual property. Many of us are authors ourselves:

reading a case about copyright we can empathize readily with a

plaintiff's feeling for the effort he has put in, his need to

control his work, and his natural desire to reap the fruits of

his own labor. In this Essay, however, I shall look at the way

we think about actual, potential and putative infringers of

others' ownership of songs, plays, words, images and stories.

Clearly our concept of the author and this concept of the copier

are two sides of the same coin. If we think of an author as

having a natural right to profit from his work, then we will

think of the copier as some sort of thief; whereas if we think

of the author as beneficiary of a statutory monopoly, it may be

easier to see the copier as an embodiment of free enterprise

values. These are the connections I want to discuss, and my

argument will be that we cannot begin to unravel the conundrums

of moral justification in this area unless we are willing to

approach the matter even-handedly from both sides of the

question.

After a magisterial study of justifications for the existing

world of intellectual property, Waldron concludes, "[t]he fact

is, however, that whether or not we speak of a burden of proof,

an institution like intellectual property is not self-

justifying; we owe a justification to anyone who finds that he

can move less freely than he would in the absence of the

institution. So although the people whose perspective I have

taken--the copiers--may be denigrated as unoriginal plagiarists or

thieves of others' work, still they are the ones who feel the

immediate impact of our intellectual property laws. It affects

what they may do, how they may speak, and how they may earn a

living. Of course nothing is settled by saying that it is their

interests that are particularly at stake; if the tables were

turned, we should want to highlight the perspective of the

authors. But as things stand, the would-be copiers are the ones

to whom a justification of intellectual property is owed." See

Jeremy Waldron, "From Authors to Copiers: Individual Rights and

Social Values in Intellectual Property," Chicago-Kent Law Review

68 (1993): 841, 842, 887. That justification seems more

plausibly and practically to come from the perspective I sketch

out here. See also William Fisher, "Theories of Intellectual

Property," in New Essays in the Legal and Political Theory of

Property, ed. Stephen R. Munzer (Cambridge: Cambridge University

Press, 2001), 168-200.

52. Catherine Seville, Literary Copyright Reform in Early

Victorian England: The Framing of the 1842 Copyright Act

(Cambridge: Cambridge University Press, 1999), 46-48.

53. Macaulay Speech, 256.

54. This point is made today by a number of authors. See Yochai

Benkler, The Wealth of Networks: How Social Production

Transforms Markets and Freedom (New Haven, Conn.: Yale

University Press, 2006), available at

http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf; Neil

Weinstock Netanel, "Locating Copyright Within the First

Amendment Skein," Stanford Law Review 54 (2001): 1-86; Netanel,

"Copyright and a Democratic Civil Society," Yale Law Journal 106

(1996): 283-388; David McGowan, "First Amendment & Copyright

Policy," available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=460280;

Randal Picker, "Copyright as Entry Policy: The Case of Digital

Distribution," Antitrust Bulletin 47 (2002): 423, 424.

55. Quoted in Fritz Machlup and Edith Penrose, "The Patent

Controversy in the Nineteenth Century," Journal of Economic

History 10, no. 1 (1950): 4, n8.

56. Ironically, contemporary economists are rediscovering the

attractions of patent alternatives. A paper by Steven Shavell

and Tanguy Van Ypersele is particularly interesting in this

regard: "Rewards versus Intellectual Property Rights," NBER

Working Paper series, no. 6956, available at

http://www.nber.org/papers/w6956.

57. "Governor Thomas was so pleased with the construction of

this stove . . . that he offered to give me a patent for the

sole vending of them for a term of years; but I declined it from

a principle which has ever weighed with me on such occasions,

viz.: That, as we enjoy great advantages from the inventions of

others, we should be glad of an opportunity to serve others by

any invention of ours; and this we should do freely and

generously." Benjamin Franklin, Autobiography, in The Works of

Benjamin Franklin, ed. John Bigelow, vol. 1 (New York: G. P.

Putnam's Sons, 1904), 237-238.

58. Kenneth Arrow, "Economic Welfare and the Allocation of

Resources for Invention," in National Bureau of Economic

Research, The Rate and Direction of Inventive Activity: Economic

and Social Factors (Princeton, N.J.: Princeton University Press,

1962), 609-626.

59. Sanford J. Grossman and Joseph E. Stiglitz, "On the

Impossibility of Informationally Efficient Markets," American

Economic Review 70 (1980), 393-408; Boyle, Shamans, 35-42.

Notes: Chapter 3

1. Apart from being anonymous, this poem is extremely hard to

date. It probably originates in the enclosure controversies of

the eighteenth century. However, the earliest reference to it

that I have been able to discover is from 1821. Edward Birch was

moved to compose some (fairly poor) verses in response when he

reported "seeing the following jeu d'esprit in a Handbill posted

up in Plaistow, as a 'CAUTION' to prevent persons from

supporting the intended inclosure of Hainault or Waltham

Forest." He then quotes a version of the poem. Edward Birch,

Tickler Magazine 3 (February 1821), 45. In 1860, "Exon," a staff

writer for the journal Notes and Queries, declares that "the

animosity excited against the Inclosure Acts and their authors .

. . was almost without precedent: though fifty years and more

have passed, the subject is still a sore one in many parishes. .

. . I remember some years ago, in hunting over an old library

discovering a box full of printed squibs, satires and ballads of

the time against the acts and those who were supposed to favor

them,--the library having belonged to a gentleman who played an

active part on the opposition side." "Exon," "Ballads Against

Inclosures," Notes and Queries 9, 2nd series (February 1860):

130-131. He reports finding the poem in that box, and quotes a

verse from it. The context of the article makes it appear that

the poem itself must date from the late eighteenth century. In

other sources, the poem is sometimes dated at 1764, and said to

be in response to Sir Charles Pratt's fencing of common land.

See, e.g., Dana A. Freiburger, "John Thompson, English

Philomath--A Question of Land Surveying and Astronomy," n. 15,

available at

http://www.nd.edu/~histast4/exhibits/papers/Freiburger/. This

attribution is widespread and may well be true, but I have been

able to discover no contemporary source material that sustains

it. By the end of the nineteenth century, the poem was being

quoted, sometimes with amusement and sometimes with agreement,

on both sides of the Atlantic. See Ezra S. Carr, "Aids and

Obstacles to Agriculture on the Pacific-Coast," in The Patrons

of Husbandry on the Pacific Coast (San Francisco: A. L. Bancroft

and Co., 1875), 290-291; Edward P. Cheyney, An Introduction to

the Industrial and Social History of England (New York:

Macmillan, 1901), 219.

2. Although we refer to it as the enclosure movement, it was

actually a series of enclosures that started in the fifteenth

century and went on, with differing means, ends, and varieties

of state involvement, until the nineteenth. See, e.g., J. A.

Yelling, Common Field and Enclosure in England, 1450-1850

(Hamden, Conn.: Archon Books, 1977).

3. Thomas More, Utopia (New York: W. J. Black, 1947), 32.

4. Karl Polanyi, Great Transformation: The Political and

Economic Origins of Our Time (Boston: Beacon Press, 1957), 35.

Polanyi continues in the same vein. "The fabric of society was

being disrupted. Desolate villages and the ruins of human

dwellings testified to the fierceness with which the revolution

raged, endangering the defenses of the country, wasting its

towns, decimating its population, turning its overburdened soil

into dust, harassing its people and turning them from decent

husbandmen into a mob of beggars and thieves." Ibid. See also E.

P. Thompson, The Making of the English Working Class (London: V.

Gollancz, 1963), 218.

5. See generally Lord Ernle, English Farming Past and Present,

6th ed. (Chicago: Quadrangle Books, 1961).

6. For an excellent summary of the views of Hobbes, Locke, and

Blackstone on these points, see Hannibal Travis, "Pirates of the

Information Infrastructure: Blackstonian Copyright and the First

Amendment," Berkeley Technology Law Journal 15 (2000): 789-803.

7. More recent accounts which argue that enclosure led to

productivity gains tend to be more qualified in their praise.

Compare the more positive account given in Ernle, English

Farming, with Michael Turner, "English Open Fields and

Enclosures: Retardation or Productivity Improvements," Journal

of Economic History 46 (1986): 688: "Enclosure cannot be seen as

the automatic open door to this cycle of agricultural

improvement, but the foregoing estimates do suggest that perhaps

it was a door which opened frequently, and with profit."

8. Most notably work by Robert C. Allen: "The Efficiency and

Distributional Consequences of Eighteenth Century Enclosures,"

The Economic Journal 92 (1982): 937-953; Enclosure and The

Yeoman (New York: Oxford University Press, 1992). Allen argues

that the enclosure movement produced major distributional

consequences, but little observable efficiency gain. The pie was

carved up differently, to the advantage of the landlords, but

made no larger. In contrast, Turner sees enclosure as one

possible, though not a necessary, route to productivity gains

("English Open Fields," 688). Donald McCloskey's work also

argues for efficiency gains from enclosure, largely from the

evidence provided by rent increases. Donald N. McCloskey, "The

Enclosure of Open Fields: Preface to a Study of Its Impact on

the Efficiency of English Agriculture in the Eighteenth

Century," Journal of Economic History 32 (1972): 15-35; "The

Prudent Peasant: New Findings on Open Fields," Journal of

Economic History 51 (1991): 343-355. In Allen's view, however,

the increase in rents was largely a measure of the way that

changes in legal rights altered the bargaining power of the

parties and the cultural context of rent negotiations; enclosure

allowed landlords to capture more of the existing surplus

produced by the land, rather than dramatically expanding it.

"[T]he enclosure movement itself might be regarded as the first

state sponsored land reform. Like so many since, it was

justified with efficiency arguments, while its main effect

(according to the data analysed here) was to redistribute income

to already rich landowners." Allen, "Eighteenth Century

Enclosures," 950-951.

9. The possibility of producing "order without law" and thus

sometimes governing the commons without tragedy has also

fascinated scholars of contemporary land use. Robert C.

Ellickson, Order without Law: How Neighbors Settle Disputes

(Cambridge, Mass.: Harvard University Press, 1991); Elinor

Ostrom, Governing the Commons: The Evolution of Institutions for

Collective Action (Cambridge: Cambridge University Press, 1990).

10. The analogy to the enclosure movement has been too succulent

to resist. To my knowledge, Ben Kaplan, Pamela Samuelson, Yochai

Benkler, David Lange, Christopher May, David Bollier, and Keith

Aoki have all employed the trope, as I myself have on previous

occasions. For a particularly thoughtful and careful development

of the parallel between the two enclosure movements, see Travis,

"Pirates of the Information Infrastructure."

11. See, e.g., William A. Haseltine, "The Case for Gene

Patents," Technology Review(September 2000): 59, available at

http://www.technologyreview.com/articles/ haseltine0900.asp; cf.

Alexander K. Haas, "The Wellcome Trust's Disclosures of Gene

Sequence Data into the Public Domain & the Potential for

Proprietary Rights in the Human Genome," Berkeley Technology Law

Journal 16 (2001): 145-164.

12. See, e.g., Haseltine, "The Case for Gene Patents";

Biotechnology Industry Association, "Genentech, Incyte Genomics

Tell House Subcommittee Gene Patents Essential for Medical

Progress," available at

http://www.bio.org/news/newsitem.asp?id?2000_ 0713 _01.

13. See, e.g., Howard Markel, "Patents Could Block the Way to a

Cure," New York Times (August 24, 2001), A19. For the general

background to these arguments, see Rebecca S. Eisenberg,

"Patenting the Human Genome," Emory Law Journal 39 (1990):

740-744.

14. 793 P.2d 479, 488-497 (Cal. 1990).

15. Ibid., 493-494. One imagines Styrofoam coolers criss-

crossing the country by FedEx in an orgy of communistic flesh-

swapping.

16. Ibid., 493.

17. I might be suspected of anti-economist irony here. In truth,

neither side's arguments are fully satisfying. It is easy to

agree with Richard Posner that the language of economics offers

a "thin and unsatisfactory epistemology" through which to

understand the world. Richard Posner, The Problems of

Jurisprudence (Cambridge, Mass.: Harvard University Press,

1990): xiv (quoting Paul Bator, "The Judicial Universe of Judge

Richard Posner," University of Chicago Law Review 52 (1985):

1161). On the other hand, explaining what it means to "own one's

own body," or specifying the noncommodifiable limits on the

market, turns out to be a remarkably tricky business, as

Margaret Jane Radin has shown with great elegance in Contested

Commodities (Cambridge, Mass.: Harvard University Press, 1996).

18. Directive 96/9/EC of the European Parliament and of the

Council of 11 March 1996 on the Legal Protection of Databases,

1996 Official Journal of the European Union (L 77) 20, available

at http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html.

19. The phrase "Washington consensus" originated in John

Williamson, "What Washington Means by Policy Reform," in Latin

American Adjustment: How Much Has Happened? ed. John Williamson

(Washington, D.C.: Institute for International Economics, 1990).

Over time it has come to be used as shorthand for a neoliberal

view of economic policy that puts its faith in deregulation,

privatization, and the creation and defense of secure property

rights as the cure for all ills. (See Joseph Stiglitz, "The

World Bank at the Millennium," Economic Journal 109 [1999]:

577-597.) It has thus become linked to the triumphalist

neoliberal account of the end of history and the victory of

unregulated markets: see Francis Fukuyama, The End of History

and the Last Man (New York: Free Press, 1992). Neither of these

two results are, to be fair, what its creator intended. See John

Williamson, "What Should the Bank Think about the Washington

Consensus?" Institute for International Economics (July 1999),

available at

http://www.iie.com/publications/papers/paper.cfm?ResearchID=351.

20. Garrett Hardin, "The Tragedy of the Commons," Science 162

(1968): 1243-1248.

21. The differences are particularly strong in the arguments

over "desert"--are these property rights deserved or are they

simply violations of the public trust, privatizations of the

commons? For example, some would say that we never had the same

traditional claims over the genetic commons that the victims of

the first enclosure movement had over theirs; this is more like

newly discovered frontier land, or perhaps even privately

drained marshland, than it is like well-known common land that

all have traditionally used. In this case, the enclosers can

claim (though their claims are disputed) that they discovered or

perhaps simply made usable the territory they seek to own. The

opponents of gene patenting, on the other hand, turn more

frequently than the farmers of the eighteenth century to

religious and ethical arguments about the sanctity of life and

the incompatibility of property with living systems. These

arguments, or the appeals to free speech that dominate debates

over digital intellectual property, have no precise analogue in

debates over hunting or pasturage, though again there are common

themes. For example, we are already seeing nostalgic laments of

the loss of the immemorial rights of Internet users. At the same

time, the old language of property law is turned to this more

evanescent subject matter; a favorite title of mine is I.

Trotter Hardy, "The Ancient Doctrine of Trespass to Web Sites,"

1996, art. 7, Journal of Online Law art. 7, available at

http://www.wm.edu/law/publications/jol/95_96/hardy.html.

22. The exceptions to this statement turn out to be fascinating.

In the interest of brevity, however, I will ignore them

entirely.

23. Remember, I am talking here about increases in the level of

rights: protecting new subject matter for longer periods of

time, criminalizing certain technologies, making it illegal to

cut through digital fences even if they have the effect of

foreclosing previously lawful uses, and so on. Each of these has

the effect of diminishing the public domain in the name of

national economic policy.

24. James Boyle, Shamans, Software, and Spleens: Law and the

Construction of the Information Societ (Cambridge, Mass.:

Harvard University Press, 1996), 29; William M. Landes and

Richard A. Posner, "Economic Analysis of Copyright Law," Journal

of Legal Studies 18 (1989): 325; Pamela Samuelson and Suzanne

Scotchmer, "The Law & Economics of Reverse Engineering," Yale

Law Journal 111 (2002): 1575-1664; Jessica Litman, "The Public

Domain," Emory Law Journal 39 (1990): 1010-1011.

25. Sanford J. Grossman and Joseph E. Stiglitz, "On the

Impossibility of Informationally Efficient Markets," American

Economic Review 70 (1980): 404.

26. For a more technical account, see James Boyle, "Cruel, Mean,

or Lavish? Economic Analysis, Price Discrimination and Digital

Intellectual Property," Vanderbilt Law Review 53 (2000):

2007-2039.

27. The most recent example of this phenomenon is multiple legal

roadblocks in bringing GoldenRice to market. For a fascinating

study of the various issues involved and the strategies for

working around them, see R. David Kryder, Stanley P. Kowalski,

and Anatole F. Krattiger, "The Intellectual and Technical

Property Components of Pro-Vitamin A Rice (GoldenRiceTM): A

Preliminary Freedom-to-Operate Review," ISAAA Briefs No. 20

(2000), available at http://www.isaaa.org/Briefs/20/briefs.htm.

In assessing the economic effects of patents, one has to balance

the delays and increased costs caused by the web of property

rights against the benefits to society of the incentives to

innovation, the requirement of disclosure, and the eventual

access to the patented subject matter. When the qualification

levels for patents are set too low, the benefits are minuscule

and the costs very high--the web of property rights is

particularly tangled, complicating follow-on innovation, the

monopoly goes to "buy" a very low level of inventiveness, and

the disclosure is of little value.

28. Michael A. Heller and Rebecca S. Eisenberg, "Can Patents

Deter Innovation? The Anticommons in Biomedical Research,"

Science 280 (1998): 698-701.

29. Int'l News Serv. v. Associated Press, 248 U.S. 215, 250

(1918) (Brandeis, J., dissenting).

30. Yochai Benkler, "Free as the Air to Common Use: First

Amendment Constraints on Enclosure of the Public Domain," New

York University Law Review 74 (1999): 354, 361, 424.

31. The so-called "business method" patents, which cover such

"inventions" as auctions or accounting methods, are an obvious

example. See, e.g., State St. Bank & Trust Co. v. Signature Fin.

Group, Inc., 149 F.3d 1368, 1373 (Fed. Cir. 1998).

32. Database Investment and Intellectual Property Antipiracy Act

of 1996, HR 3531, 104th Cong. (1996); Collections of Information

Antipiracy Act, S 2291, 105th Cong. (1998).

33. See, e.g., Feist Publications v. Rural Tel. Serv. Co., 499

U.S. 340, 350 (1991): "Copyright treats facts and factual

compilations in a wholly consistent manner. Facts, whether alone

or as part of a compilation, are not original and therefore may

not be copyrighted." To hold otherwise "distorts basic copyright

principles in that it creates a monopoly in public domain

materials without the necessary justification of protecting and

encouraging the creation of 'writings' by 'authors.' " Ibid., at

354.

34. See Eisenberg, "Patenting the Human Genome"; Haas, "Wellcome

Trust's Disclosures."

35. Those who prefer topographical metaphors might imagine a

quilted pattern of public and private land, with legal rules

specifying that certain areas, beaches say, can never be

privately owned, and accompanying rules giving public rights of

way through private land if there is a danger that access to the

commons might otherwise be blocked.

36. See Jessica Litman, Digital Copyright: Protecting

Intellectual Property on the Internet (Amherst, N.Y.: Prometheus

Books, 2001).

37. See James Boyle, "Intellectual Property Policy Online: A

Young Person's Guide," Harvard Journal of Law & Technology 10

(1996): 47-112.

38. American Geophysical Union v. Texaco, 37 F.3d 882 (2nd Cir.

1994).

39. Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS

5669, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000).

40. eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058

(N.D. Cal. 2000).

41. Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). After

initially holding that while thumbnails were fair use, inline

links that displayed pictures were not fair use, the court

reversed itself and found fair use in both instances.

42. After a District Court issued a temporary injunction telling

Static Controls that it must cease manufacturing generic toner

cartridges that operated in Lexmark printers--indicating it was

likely to be found to be violating the Digital Millennium

Court held that such cartridges did not in fact violate the

DMCA. Lexmark International, Inc. v. Static Control Components,

Inc., 387 F.3d 522 (6th Cir. 2004).

43. Madey v. Duke Univ., 307 F.3d 1351 (Fed. Cir. 2003), cert.

denied, 539 U.S. 958 (2003).

44. "When scientists from Princeton University and Rice

University tried to publish their findings [on the

vulnerabilities in a copy protection scheme] in April 2001, the

recording industry claimed that the 1998 Digital Millennium

technology that might be used to bypass industry controls

limiting how consumers can use music they have purchased.

'Studying digital access technologies and publishing the

research for our colleagues are both fundamental to the progress

of science and academic freedom,' stated Princeton scientist

Edward Felten. 'The recording industry's interpretation of the

DMCA would make scientific progress on this important topic

illegal.' . . . "SDMI sponsored the 'SDMI Public Challenge' in

September 2000, asking Netizens to try to break their favored

watermark schemes, designed to control consumer access to

digital music. When the scientists' paper about their successful

defeat of the watermarks, including one developed by a company

called Verance, was accepted for publication, Matt Oppenheim, an

officer of both RIAA and SDMI, sent the Princeton professor a

letter threatening legal liability if the scientist published

his results." "EFF Media Release: Princeton Scientists Sue Over

Squelched Research," available at

http://w2.eff.org/IP/DMCA/Felten_v_RIAA/20010606_eff_felten_pr.h

tml. After a First Amendment challenge to the relevant

provisions of the DMCA, the threats were withdrawn.

45. See, e.g., Robert P. Merges, "As Many as Six Impossible

Patents before Breakfast: Property Rights for Business Concepts

and Patent System Reform," Berkeley Technology Law Journal 14

(1999): 615.

Notes: Chapter 4

1. For the background to these documents see James Boyle,

"Intellectual Property Policy Online: A Young Person's Guide,"

Harvard Journal of Law & Technology 10 (1996): 47-112; Jessica

Litman, Digital Copyright: Protecting Intellectual Property on

the Internet (Amherst, N.Y.: Prometheus Books, 2001).

2. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as

amended in scattered sections of 5, 17, 28, and 35 U.S.C.).

3. Intellectual Property and the National Information

Infrastructure: The Report of the Working Group on Intellectual

Property Rights (Washington, D.C.: Information Infrastructure

Task Force, 1995), 73 n. 227. Hereinafter White Paper.

4. White Paper, 84.

5. "Congress did not provide that one class in the community

could combine to restrain interstate trade and another class

could not. . . . It provided that 'every' contract, combination

or conspiracy in restraint of trade was illegal." Loewe v.

Lawlor, 208 U.S. 274 (1908); "Indians inhabiting this country

were fierce savages, whose occupation was war, and whose

subsistence was drawn chiefly from the forest. To leave them in

possession of their country, was to leave the country a

wilderness. . . ." Johnson v. M'Intosh, 21 U.S. 543, 590 (1823).

6. "As the entertainment and information markets have gotten

more complicated, the copyright law has gotten longer, more

specific, and harder to understand. Neither book publishers nor

libraries have any interest in making the library privilege

broad enough so that it would be useful to users that aren't

libraries, and neither movie studios nor broadcast stations have

any interest in making the broadcaster's privilege broad enough

to be of some use to say, cable television or satellite TV, so

that doesn't happen. Negotiated privileges tend to be very

specific, and tend to pose substantial entry barriers to

outsiders who can't be at the negotiating table because their

industries haven't been invented yet. So negotiated copyright

statutes have tended, throughout the century, to be kind to the

entrenched status quo and hostile to upstart new industries."

Litman, Digital Copyright, 25.

7. Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560,

561) (1996).

8. Reno v. ACLU, 521 U.S. 844 (1997).

9. James Boyle, "Overregulating the Internet," Washington Times

(November 14, 1995), A17.

10. See James Boyle, "The One Thing Government Officials Can't

Do Is Threaten Their Critics," Washington Times (March 6, 1996),

A16.

11. "The DFC was forged in 1995 in response to the release of

the Clinton administration's White Paper on Intellectual

Property and the National Information Infrastructure. The White

Paper recommended significantly altering existing copyright law

to increase the security of ownership rights for creators of

motion pictures, publishers and others in the proprietary

community. Members of the DFC recognized that if the policy

proposals delineated in the White Paper were implemented,

educators, businesses, libraries, consumers and others would be

severely restricted in their efforts to take advantage of the

benefits of digital networks." See

http://www.dfc.org/dfc1/Learning_Center/about.html.

12. See the classic account in Mancur Olson, The Logic of

Collective Action: Public Goods and the Theory of Groups, 2nd

ed. (Cambridge, Mass.: Harvard University Press, 1971).

13. See note 2 above.

14. Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as

amended in scattered sections of 17 and 18 U.S.C.).

15. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as

amended in scattered sections of 17 U.S.C.).

16. S 2291, 105th Cong. (1998).

17. Sony Corp. of America v. Universal City Studios, Inc., 464

U.S. 417 (1984).

18. See Tina Balio, Museum of Broadcast Communications, "Betamax

Case," Encyclopedia of TV (1997), available at

http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/

betamaxcase.htm ("The Betamax case went all the way to the

Supreme Court, which reversed the appeals court decision on 17

January 1984. By 1986, VCRs had been installed in fifty percent

of American homes and annual videocassettes sales surpassed the

theatrical box-office."). The year 1986 was also the peak of the

video rental market: "Video's high mark, according to studies by

A. C. Nielsen Media Research, was in late 1986, when an

estimated 34.3 million households with VCR's took home 111.9

million cassettes a month, or an average of 3.26 movies per

household." Peter M. Nichols, "Movie Rentals Fade, Forcing an

Industry to Change its Focus," New York Times (May 6, 1990), A1.

19. For background, see Wendy Gordon, "Fair Use as Market

Failure: A Structural and Economic Analysis of the Betamax Case

and Its Predecessors," Columbia Law Review 82 (1982): 1600-1657.

For accounts that imagine a reduction of fair use as transaction

costs fall, see Edmund W. Kitch, "Can the Internet Shrink Fair

Use?," Nebraska Law Review 78 (1999): 880-890; Robert P. Merges,

"The End of Friction? Property Rights and the Contract in the

'Newtonian' World of On-Line Commerce," Berkeley Technology Law

Journal 12 (1997): 115-136. This argument has hardly gone

unanswered with articles pointing out that it neglects both the

social values of fair use and the actual economics of its

operation. See Jonathan Dowell, "Bytes and Pieces: Fragmented

Copies, Licensing, and Fair Use in A Digital World," California

Law Review 86 (1998): 843-878; Ben Depoorter and Francesco

Parisi, "Fair Use and Copyright Protection: A Price Theory

Explanation," International Review of Law and Economics 21

(2002): 453-473.

20. "I believe the answer to the question of justification turns

primarily on whether, and to what extent, the challenged use is

transformative. The use must be productive and must employ the

quoted matter in a different manner or for a different purpose

from the original." Pierre N. Leval, "Toward a Fair Use

Standard," Harvard Law Review 103 (1990): 1111.

21. See Neil Weinstock Netanel, "Locating Copyright Within the

First Amendment Skein," Stanford Law Review 54 (2001): 1-86;

Yochai Benkler, "Free As the Air to Common Use: First Amendment

Constraints on Enclosure of the Public Domain," New York

University Law Review 74 (1999): 354-446; Larry Lessig, Melville

B. Nimmer Memorial Lecture: "Copyright's First Amendment" (March

1, 2001), in UCLA Law Review 48 (2001): 1057-1074; Melville B.

Nimmer, "Does Copyright Abridge the First Amendment Guaranties

of Free Speech and the Press?" UCLA Law Review 17 (1970):

1180-1204.

22. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th

Cir. 1992); Atari Games Corp. v. Nintendo of America Inc., 975

F.2d 832 (Fed. Cir. 1992).

23. Sony 464 U.S. at 441 n. 21.

24. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.

2001).

25. A&M Records v. Napster: C-SPAN Videotape 159534, Part 1 of 1

(October 2, 2000).

26. Felix Oberholzer-Gee and Koleman Strumpf, "The Effect of

File Sharing on Record Sales: An Empirical Analysis," Journal of

Political Economy 115, no. 1 (2007): 1-42.

27. Stan J. Liebowitz, "How Reliable Is the Oberholzer-Gee and

Strumpf Paper on File-Sharing?" available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id?1014399.

28. Rafael Rob and Joel Waldfogel, "Piracy on the High C's:

Music Downloading, Sales Displacement, and Social Welfare in a

Sample of College Students," available at

http://www.law.upenn.edu/polk/dropbox/waldfogel.pdf.

29. M. Peitz and P. Waelbroeck, "The Effect of Internet Piracy

on Music Sales: Cross-Section Evidence," Review of Economic

Research on Copyright Issues (December 2004): 71-79, available

at http://www.serci.org/docs_1_2/waelbroeck.pdf. For an

excellent general discussion see Rufus Pollock's summary of the

empirical evidence at

http://www.rufuspollock.org/economics/p2p_summary.html.

30. MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

31. J. H. Saltzer, D. P. Reed, and D. D. Clark, "End-to-End

Arguments in System Design," ACM Transactions on Computer

Systems (November 1984): 277.

32. Technically, this discussion fuses components of the

Internet--its transfer protocols, for example--with aspects of the

World Wide Web, the set of linked hypertext documents assembled

on top of it.

Notes: Chapter 5

1. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as

amended in scattered sections of 5, 17, 28, and 35 U.S.C.).

2. See Electronic Frontiers Foundation, "Unintended

Consequences," available at http://www.eff.org/wp/unintended-

consequences-seven-years-under-dmca.

3. See DVD Copy Control Association, "Frequently Asked

Questions," available at http://www.dvdcca.org/faq.html.

4. Thomas Mennecke, "Slyck.com Interviews Jon Lech Johansen"

(April 4, 2005), available at

http://www.slyck.com/news.php?story=733.

5. As is often the way, these pages have now been modified on

Wikipedia. At the time of writing, this excerpt can still be

found at http://www.indopedia.org/Eric_Corley.html.

6. Abraham Lincoln, Lecture on Discoveries and Inventions (April

6, 1858), available at

http://showcase.netins.net/web/creative/lincoln/speeches/discove

ries.htm.

7. See Neil Weinstock Netanel, "Locating Copyright Within the

First Amendment Skein," Stanford Law Review 54 (2001): 15

(citing Houghton Mifflin Co. v. Noram Publ'g Co., 28 F. Supp.

676 (S.D.N.Y. 1939); Houghton Mifflin Co. v. Stackpole Sons,

Inc., 104 F.2d 306 (2nd Cir. 1939) (upholding the validity of

the U.S. copyright in Mein Kampf ); Anthony O. Miller, "Court

Halted Dime Edition of 'Mein Kampf': Cranston Tells How Hitler

Sued Him and Won," Los Angeles Times, February 14, 1988, § 1, 4

(giving Cranston's version of the case's underlying facts)).

8. The Corley court was uncertain about this point.

("Preliminarily, we note that the Supreme Court has never held

that fair use is constitutionally required, although some

isolated statements in its opinions might arguably be enlisted

for such a requirement."). Universal City Studios v. Corley, 273

F.3d 429, 458 (2d Cir. 2001). In my view, both logic and those

"isolated statements" suggest that fair use is required. As I

point out later, when the Supreme Court revisited the matter in

the case of Eldred v. Ashcroft, 537 U.S. 186 (2003), it stressed

that it was precisely the internal limitations such as fair use

that made copyright law normally immune to First Amendment

scrutiny. The Court added "when . . . Congress has not altered

the traditional contours of copyright protection, further First

Amendment scrutiny is unnecessary." Ibid. at 221 (citing Harper

& Row, 471 U.S. at 560). Yet that is exactly what the DMCA does:

alters "the traditional contours of copyright protection" by

handing out the exclusive right at the same time as it confers a

legal power to remove the privilege of fair use.

9. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.

2d 294, 304-5 (S.D.N.Y. 2000).

10. Ibid., 329-30 (quoting Turner Broadcasting System, Inc. v.

FCC, 512 U.S. 622, 662 (1997) (quoting U.S. v. O'Brien, 391 U.S.

367, 377 (internal quotations omitted)).

11. Ibid., 331-332.

12. One empirical study seems to challenge this assumption,

though at modest levels. Rafael Rob and Joel Waldfogel, "Piracy

on the Silver Screen," Journal of Industrial Economics 55

(2007): 379-395. Rob and Waldfogel surveyed college

students--traditionally a population that engages in high levels

of downloading since they have "free" and extremely high speed

Internet connections, lots of leisure time, and low disposable

income. Even among this group, the authors found that total

levels of downloading were low--2.1 percent of paid consumption.

The authors also assumed that all unpaid downloading or DVD

burning was equal to piracy--an assumption that is clearly false.

The Sony case makes that clear. In fact, Rob and Waldfogel found

a positive relationship between second time unpaid viewings and

future paid viewings; watching the movie a second time on a

downloaded or privately made copy burned from the airwaves

actually was associated with more paid purchases. The authors

were skeptical of any causal link, however. Ibid., 389.

13. Admittedly, section 1201 only affects works protected under

the copyright act, so arguably the legal protection of the

digital fence would expire with the copyright term. But even if

the courts interpreted the statute this way, two problems would

remain. First, since the DMCA prohibited the trafficking in

tools which allowed the breaking of the encryption, the law

would have effectively forbidden the production of wire cutters

for gaining access to identically encrypted public domain

works--remember Judge Kaplan's discussion of the irrelevance of

Mr. Johansen's motives. Second, it would be trivially easy to

add a trivial amount of new copyrighted material to the work

that had fallen into the public domain. Access to the public

domain work would then be prohibited for another period of life

plus seventy years. And so on. The Copyright Office holds

hearings on the question of whether there are any "classes of

work" that need exemption from the DMCA's provisions. So far,

those exemptions have been highly restrictive in application.

14. Eldred v. Ashcroft, 537 U.S. 186 (2003) at 221 (citing

Harper & Row, 471 U.S. at 560).

15. Rob Pegoraro, "RealPlayer's iPod-Compatible Update 'Stunned'

Apple," Washington Post (August 8, 2004), F6.

16. Lexmark, Int'l v. Static Control Companies, Inc., 387 F.3d

522 (6th Cir. 2004).

17. Chamberlain Group, Inc. v. Skylink Tech., Inc., 381 F.3d

1178 (Fed. Cir. 2004). This of course was exactly the claim that

Mr. Corley's lawyers made, to no avail.

Notes: Chapter 6

1. Lisa de Moraes, "Kanye West's Torrent of Criticism, Live on

NBC," Washington Post (September 3, 2005), C1, available at

http://www.washingtonpost.com/wp-

dyn/content/article/2005/09/03/AR2005090300165.html.

2. John Leland, "Art Born of Outrage in the Internet Age," New

York Times (September 25, 2005), D3.

3. Ray Charles and David Ritz, Brother Ray: Ray Charles' Own

Story (Cambridge, Mass.:Da Capo Press, 1978), 86.

4. Robert W. Stephens, "Soul: A Historical Reconstruction of

Continuity and Change in Black Popular Music," The Black

Perspective in Music 12, no. 1 (Spring 1984): 32.

5. Forever Ray, available at

http://www.raycharles.com/the_man_biography.html.

6. Michael Lydon, Ray Charles (New York: Routledge, 2004), 419:

"Arnold Shaw, in The Rockin' 50's says that 'I Got a Woman' is

based on Jesus is All the World to Me. Because Renald Richard

left Ray's band before the song was recorded, he was not at

first properly credited: some record labels list [Ray Charles]

alone as the songwriter. Richard, however, straightened that out

with Atlantic, and he has for many years earned a substantial

income from his royalties."

7. See Stephens, "Soul," 32. The standard biographical

literature also repeats the same story:

In 1954 an historic recording session with Atlantic records

fused gospel with rhythm-and-blues and established Charles'

"sweet new style" in American music. One number recorded at that

session was destined to become his first great success.

Secularizing the gospel hymn "My Jesus Is All the World to Me,"

Charles employed the 8- and 16-measure forms of gospel music, in

conjunction with the 12-measure form of standard blues. Charles

contended that his invention of soul music resulted from the

heightening of the intensity of the emotion expressed by jazz

through the charging of feeling in the unbridled way of gospel.

"Ray Charles," Encyclopedia of World Biography, 2nd ed., vol. 3

(Detroit, Mich.: Gale Research, 1998), 469. Popular accounts

offer the same story:

This young, blind, black, gravelly-voiced singer brought

together the most engaging aspects of black music into one form

and began the process of synthesis that led to soul and,

ultimately, funk a decade later. He would turn around gospel

standards like "My Jesus Is All the World to Me," recreating it

as "I Got a Woman[.]"

Ricky Vincent, Funk: The Music, The People, and the Rhythm of

the One (New York: St. Martin's Griffin, 1996), 121. See also

Joel Hirschhorn, The Complete Idiot's Guide to Songwriting (New

York: Alpha Books, 2004), 108: "I Got a Woman was Ray's rewrite

of 'My Jesus Is All the World to Me.' "

Charles himself was more equivocal about the origins of the

song:

So I was lucky. Lucky to have my own band at this point in

my career. Lucky to be able to construct my musical building to

my exact specifications. And lucky in another way: While I was

stomping around New Orleans, I had met a trumpeter named Renolds

[sic] Richard who by thus time was in my band. One day he

brought me some words to a song. I dressed them up a little and

put them to music. The tune was called "I Got a Woman," and it

was another of those spirituals which I refashioned in my own

way. I Got a Woman was my first real smash, much bigger than

["]Baby Let Me Hold Your Hand[.]" This spiritual-and-blues

combination of mine was starting to hit.

Charles and Ritz, Brother Ray, 150.

8. See Lydon, Ray Charles, 419.

9. James Boyle, Shamans, Software, and Spleens: Law and the

Construction of the Information Society (Cambridge, Mass.:

Harvard University Press, 1996).

10. James Henke, Holly George-Warren, Anthony Decurtis, and Jim

Miller, The Rolling Stone Illustrated History of Rock and Roll:

The Definitive History of the Most Important Artists and Their

Music (New York: Random House, 1992), 130.

11. Great American Country, "Ray Charles Biography," available

at http://www.gactv.com/gac/ar_artists_a-

z/article/0,,GAC_26071_4888297,00.html.

12. "His 1955 smash 'I've Got a Woman,' for example, was adapted

from a gospel number he'd liked called 'I've Got a Savior.' "

Chip Deffaa, Blue Rhythms: Six Lives in Rhythm and Blues

(Urbana: University of Illinois Press, 1996), 161.

13. Columbia Catalog Number CO45097, available at

http://settlet.fateback.com/COL30000.htm.

14. J. C. Marion, "Ray Charles: The Atlantic Years," JammUpp 2

no. 32 (2004): 32,

http://home.earthlink.net/~v1tiger/jammuppvol2.html.

15. "If one can pinpoint a moment when gospel and blues began to

merge into a secular version of gospel song, it was in 1954 when

Ray Charles recorded 'My Jesus Is All the World to Me,' changing

its text to 'I Got A Woman.' The following year, he changed

Clara Ward's 'This Little Light of Mine' to 'This Little Girl of

Mine.' " Stephens, "Soul," 32.

16. Robert Lashley, "Why Ray Charles Matters," Blogcritics

Magazine, December 17, 2005,

http://blogcritics.org/archives/2005/12/17/032826.php:

But it was the staggering, nearly byzantine ambition that

encompassed Charles' musical mind which is the foundation for

his art. You can hear it in his first imprint on the pop music

world, 1955's I Got A Woman. The shuffling big beat borrows from

Louis Jordan's big band fusion, the backbeat is 2/4 gospel. The

arrangement is lucid, not quite jazz, not quite blues,

definitely not rock and roll but something sophisticated

altogether. The emotions are feral, but not quite the

primitiveness of rock and roll. It is the sound of life, a place

where there is an ever flowing river of cool. It, you might ask?

Rhythm and Blues, Ray Charles' invention.

A volcano bubbling under the surface, Ray spent the mid 50's

crafting timeless songs as if there were cars on an assembly[.]

Start with the blasphemous fusion of Hallelujah I [L]ove Her So

and This Little Girl of Mine, where Ray changes the words from

loving god to loving a woman, yet, in the intensity of his

performance, raises the question if he's still loving the same

thing.

The anonymous encyclopedists at Wikipedia agree:

Many of the most prominent soul artists, such as Aretha

Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in

the church and gospel music and brought with them much of the

vocal styles of artists such as Clara Ward and Julius Cheeks.

Secular songwriters often appropriated gospel songs, such as the

Pilgrim Travelers' song "I've Got A New Home," which Ray Charles

turned into "Lonely Avenue," or "Stand By Me," which Ben E. King

and Lieber and Stoller adapted from a well-known gospel song, or

Marvin Gaye's "Can I Get A Witness," which reworks traditional

gospel catchphrases. In other cases secular musicians did the

opposite, attaching phrases and titles from the gospel tradition

to secular songs to create soul hits such as "Come See About Me"

for the Supremes and "991?2Won't Do" for Wilson Pickett.

"Urban Contemporary Gospel," Wikipedia,

http://en.wikipedia.org/wiki/urban_contemporary_gospel.

17. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton,

N.J.: Princeton University Press, 1957), 96-97.

18. John Leland, "Art Born of Outrage in the Internet Age," New

York Times (September 25, 2005), D3.

19. Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780

F. Supp. 182 (S.D.N.Y. 1991).

20. Ibid., 183.

21. Kembrew McLeod, Owning Culture: Authorship, Ownership and

Intellectual Property Law (New York: Peter Lang, 2001), and Siva

Vaidhyanathan, Copyrights and Copywrongs: The Rise of

Intellectual Property and How It Threatens Creativity (New York:

New York University Press, 2001).

22. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792,

804n16 (6th Cir. 2005).

23. Walter Benjamin, "The Work of Art in the Age of Mechanical

Reproduction," in Illuminations: Essays and Reflections, ed.

Hannah Arendt, trans. Harry Zohn (New York: Harcourt, Brace &

World, 1968), 217-42.

24. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583

(1994).