But it is as silly to think about peer-to-peer as applying just to music as it would have been to think about the Internet as applying just to pornography. Whatever the initial use of the technology, it has nothing to do with the potential of the architecture to serve many other extremely important functions.
It might be crazy to expect a high government official to speak the truth. It might be crazy to believe that government policy will be something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history -- free culture. If this is crazy, then let there be more crazies. Soon.
The legal system doesn't work. Or more accurately, it doesn't work for anyone except those with the most resources. Not because the system is corrupt. I don't think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so astonishingly high that justice can practically never be done.
There is a regulation of behavior on the Internet and in cyberspace, but that regulation is imposed primarily through code. The differences in the regulations effected through code distinguish different parts of the Internet and cyberspace. In some places, life is fairly free; in other places, it is more controlled. And the difference between these spaces is simply a difference in the architectures of control--that is, a difference in code.
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The more important point, however, is not about what the money does. It's about what has to be done to get the money. The effect of the money might be (democratically) benign. But what is done to secure that money is not necessarily benign. To miss this point is to betray the Robin Hood fallacy: the fact that the loot was distributed justly doesn't excuse the means taken to secure it.
If 'piracy means using the creative property of others without their permission- if 'if value, then right' is true- then the history of the content industry is a history of piracy. Every important sector of 'big media' today- film, records, radio, and cable TV-was born of a kind of piracy so defined. The consistent story is how last generation's pirates join this generation's country club-until now.
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Copyright law has got to give up its obsession with 'the copy.' The law should not regulate 'copies' or 'modern reproductions' on their own. It should instead regulate uses-like public distributions of copies of copyrighted work-that connect directly to the economic incentive copyright law was intended to foster.
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So, ignorant we are. But we're not stupid. Indeed... remaining ignorant about politics and our government is a perfectly rational response to the government we have. The question isn't what we know. The question is what we're capable of knowing, and doing, if we have the right incentives, and the right opportunity.
But, like all metaphoric wars, the copyright wars are not actual conflicts of survival. Or at least, they are not conflicts for survival of a people or a society, even if they are wars of survival for certain businesses or, more accurately, business models. Thus we must keep i mind the other values or objectives that might also be affected by this war. We must make sure this war doesn't cost more than it is worth. We must be sure it is winnable, or winnable at a price we're willing to pay.
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[The Internet] affects democracy... As more and more citizens express what they think, and defend it in writing, that will change the way people understand public issues. It is easy to be wrong and misguided in your head. It is harder when the product of your mind can be criticized by others. Of course, it is a rare human who admits that he has been persuaded that he is wrong. But it is even rarer for a human to ignore when he has been proven wrong. The writing of ideas, arguments, and criticism improves democracy.
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Economics itself offers a parallel that explains why this integration affects creativity. Clay Christensen has written about the 'Innovator's Dilemma': the fact that large traditional firms find it rational to ignore new, breakthrough technologies that compete with their core business. The same analysis could help explain why large, traditional media companies will undermine our tradition of free culture. The property right that is copyright is no longer the balanced right that it was, or was intended to be. The property right that is copyright has become unbalanced, tilted toward an extreme. The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must check with a lawyer.
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I think the reality is that copyright law has for a very long time been a tiny little part of American jurisprudence, far removed from traditional First Amendment jurisprudence, and that made sense before the Internet. Now there is an unavoidable link between First Amendment interests and the scope of copyright law. The legal system is recognizing for the first time the extraordinary expanse of copyright regulation and its regulation of ordinary free-speech activities.
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Creativity builds upon the public domain. The battle that we're fighting now is about whether the public domain will continue to be fed by creative works after their copyright expires. That has been our tradition but that tradition has been perverted in the last generation. We're trying to use the Constitution to reestablish what has always been taken for granted--that the public domain would grow each year with new creative work.
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A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a "permission culture" -- a culture in which creators get to create only with the permission of the powerful, or of creators from the past.
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A free culture is not a culture without property; it is not a culture in which artists don't get paid. A culture without property, or in which creators can't get paid, is anarchy, not freedom. Anarchy is not what I advance here. Instead, the free culture that I defend in this book is a balance between anarchy and control.
Some blame the drug companies. I don't. They are corporations. Their managers are ordered by law to make money for the corporation. They push a certain patent policy not because of ideals,but because it is the policy that makes them the most money. And it only makes them the most money because of a certain corruption within our political system-a corruption the drug companies are certainly not responsible for. The corruption is our own politicians' failure of integrity.
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I am big supporter of the idea of a global anti-corruption movement - but one that begins by recognizing that the architecture of corruption is different in different countries. The corruption we suffer is not the same as the corruption that debilitates Africa. But it is both corruption, and both need to be eliminated if the faith in democracy is not going to be destroyed.
We are a cut-and-paste culture. The aim of the protectionists is to argue that a cut-and-paste culture is criminal. Well, it's only criminal if there's nothing out there that you can freely cut and paste. If we increasingly mark material as available for these non-commercial uses, then people will have the opportunity to see its importance.
We live in a world with "free" content, and this freedom is not an imperfection. We listen to the radio without paying for the songs we hear; we hear friends humming tunes that they have not licensed. We tell jokes that reference movie plots without the permission of the directors. We read our children books, borrowed from a library, without paying the original copyright holder for the performance rights.
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