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holders even though use of such quotes would plainly have
fallen under fair-use guidelines, decided it wasn t worth the
trouble to get permission; hence, the book was published
without all the lyrics she wanted to use.291 To turn fair use into
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the exclusive realm of authorized uses is to remove fair use
almost entirely. We ll come back to this crucial point later in
this chapter.
One of the keystones of intellectual property is that a
work goes into the public domain after what the Founders
defined as limited times, which allowed a copyrighted work
to pass into the public domain so others might freely build upon
it. Limited times were first defined as 14 years but have been
progressively extended by Congress at the behest of copyright
holders such as Disney. What were once 14-year terms have
now been extended to the life of the author plus 75 years, or 95
years when a copyright is held by a corporation. By amazing
coincidence, copyright terms seem to get extended every time
Mickey Mouse comes close to entering the public domain,
which means that nothing is going into the public domain any-
more. This is a double-barreled heist by the copyright holders.
They re stealing from our common heritage in order to protect a
few valuable works. And they re thwarting innovation.
If the rules and enforcement regimes that apply today had
been applied in the 1930s, Walt Disney might never have been
able to create Mickey Mouse, which was a derivative work
based on other people s creations. And Victor Hugo is surely
spinning in his grave at the way the Disney empire of today took
The Hunchback of Notre Dame and turned that story into a
children s cartoon. But his work had entered the public domain,
and new art was the result.
What does this mean for modern grassroots journalism,
which relies on people s freedom to use all manner of digital
content in all manner of ways? Nothing good.
eye of the beholder
There are many ironies in the current copyright debate. None is
more notable than the fact that the industries now pushing for
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such absolute control got their start doing what they d call
piracy today. But it s also a shame to see an industry that has
fought so honorably to maintain First Amendment protections,
without which it could not itself survive, now leading a charge
that threatens other people s speech.
Technological advances always threaten established busi-
ness models. And the people whose businesses are threatened
always try to stop progress. Cory Doctorow is an online civil
libertarian and science fiction author who published two novels
and also made them freely downloadable online the day they
were in bookstores. The Vaudeville performers who sued Mar-
coni for inventing the radio had to go from a regime where they
had one hundred percent control over who could get into the
theater and hear them perform to a regime where they had zero
percent control over who could build or acquire a radio and
tune into a recording of them performing, he told me. The per-
formers, in other words, wanted to prevent new technology
from disrupting a successful old business model.
It wasn t the only time. In one of the most important recent
examples, Hollywood tried to kill off the home video recorder.
Only by the narrowest margin in the Supreme Court, in a cru-
cial 1984 decision, did Americans preserve the right to tape a
TV show and play it back later.292
The advent of digital technology terrified the entertainment
industry, and for apparently good reasons. After all, a digital
copy of something doesn t degrade the way analog copies, such
as a copy of a videotape, do in just a couple of generations. And
cyberspace threatened to be the world s biggest enabler of
infringement because of how easy it is to copy and distribute
materials over it.
But the industry has cleverly, though wrongly, framed the
argument as stealing versus property rights. In fact, the
issue is nothing of the kind. Ideas are different than physical
property, and they have been treated distinctly through our his-
tory. If I take your car, you can t use it. If I have a copy of your
song, you still have the song. Infringement is wrong, and I don t
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defend it. But there has always been some infringement, and
copyright holders have lived with it as part of their overall bar-
gain with society.
Hollywood, and the music companies in particular, began
sounding an alarm in the early 1990s. They had the ear of Con-
gress largely a result of large campaign donations plus a bias
toward property rights over all other rights and in 1998, they
persuaded federal lawmakers to pass the Digital Millennium
Copyright Act (DMCA), a law that was said to bring copyright
policy into the digital age and that respected the rights of users
and producers.
The DMCA was radical and complex legislation.293 It
tipped the balance toward copyright holders far beyond any-
thing they d enjoyed before. One especially bad provision crimi-
nalized the use of technology that could be used to circumvent
copy protections, no matter how legitimately someone might use
the circumvention. It s even forbidden to tell people how they
can do such things, as Jon Johansen, the Norwegian hacker of
DVD encryption code, and Eric Corley, the publisher who dared
post it, discovered to their dismay.
The law has been abused repeatedly. Scholars have faced
legal threats for publishing research about the weak security
protections the entertainment companies have used on their
material.294 A Russian programmer was indicted in 2002, and
his company was put on trial (and acquitted) for selling soft-
ware that could be used to make copies of electronic books.295
A printer company has used the DMCA to sue the maker of an
inexpensive replacement cartridge.296 The cases grow in number
and strangeness every year.
charm and toughness
No one could sum up the issue from the entertainment
industry s perspective better than Jack Valenti, longtime head of
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