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Measurement is another fetish of professionalism, as if something that cannot be measured isn’t quite real. This was a central criticism by Sir Ivor Roberts, who wrote a stinging valedictory telegram when he retired as the British ambassador in Rome in 2006: “Well-conducted diplomacy cannot properly be measured. We manage or contain disputes; very rarely do we deliver a quantifiable solution. Indeed, we should be sceptical of ‘permanent’ solutions or models.”

“The nature of many kinds of skill cannot be defined,” Kay adds. “If  we could define or completely explain them in terms of a set of rules then anyone could do it.”

Kay also questions the professional mantra that we should slavishly copy winners

A free culture has been our past, but it will  only be our future if we change the path we are on right now.

But just as a free market is perverted  if its property becomes feudal, so too can a free culture be queered by  extremism in the property rights that define it. That is what I fear  about our culture today. It is against that extremism that this book is  written.

it is the special genius of a common law system, as ours is, that the  law adjusts to the technologies of the time. And as it adjusts, it  changes. Ideas that were as solid as rock in one age crumble in  another.

at least, this is how things happen when there's no one powerful  on the other side of the change. The Causbys were just farmers

We can glimpse a sense of this change by distinguishing between  commercial and noncommercial culture, and by mapping the law's  regulation of each. By “commercial culture” I mean that part of our  culture that is produced and sold or produced to be sold. By  “noncommercial culture” I mean all the rest.

At the beginning of our history, and for just about the whole of our  tradition, noncommercial culture was essentially unregulated.

But the law was never directly concerned  with the creation or spread of this form of culture, and it left this  culture “free.”

The Internet has set the stage for this erasure  and, pushed by big media, the law has now affected it.

This rough divide between the free and the controlled has now been  erased.

The consequence is that we are less and less a free  culture, more and more a permission culture.

This is not a protectionism to protect artists. It is instead a  protectionism to protect certain forms of business.

Yet, as I argue in the pages that follow, that is precisely what is  happening in our culture today. These modern-day equivalents of the  early twentieth-century radio or nineteenth-century railroads are using  their power to get the law to protect them against this new, more  efficient, more vibrant technology for building culture. They are  succeeding in their plan to remake the Internet before the Internet  remakes them.

the war to rid the world of Internet “pirates” will also rid  our culture of values that have been integral to our tradition from the  start.

 

These values built a tradition that, for at least the first 180 years  of our Republic, guaranteed creators the right to build freely upon  their past, and protected creators and innovators from either state or  private control

There's no doubt that “piracy” is wrong, and that pirates should be  punished. But before we summon the executioners, we should put this  notion of “piracy” in some context. For as the concept is increasingly  used, at its core is an extraordinary idea that is almost certainly  wrong.

 

The idea goes something like this:

 

Creative work has value; whenever I use, or take, or build upon the  creative work of others, I am taking from them something of value.  Whenever I take something of value from someone else, I should have  their permission. The taking of something of value from someone else  without permission is wrong. It is a form of piracy.

the “if value, then right"  theory of creative property

ng of how creative  property should work. It might well be a possible design for a system  of law protecting creative property. But the “if value, then right"  theory of creative property has never been America's theory of creative  property. It has never taken hold within our law.

 

Instead, in our tradition, intellectual property is an instrument. It  sets the groundwork for a richly creative society but remains  subservient to the value of creativity. The current debate has this  turned around. We have become so concerned with protecting the  instrument that we are losing sight of the value.

In all of these cases, Disney  (or Disney, Inc.) ripped creativity from the culture around him, mixed  that creativity with his own extraordinary talent, and then burned that  mix into the soul of his culture. Rip, mix, and burn.

with the birth of the Internet, this natural limit to the reach  of the law has disappeared. The law controls not just the creativity of  commercial creators but effectively that of anyone. Although that  expansion would not matter much if copyright law regulated only  “copying,” when the law regulates as broadly and obscurely as it does,  the extension matters a lot. The burden of this law now vastly  outweighs any original benefit—certainly as it affects noncommercial  creativity, and increasingly as it affects commercial creativity as  well.

Just at the time  digital technology could unleash an extraordinary range of commercial  and noncommercial creativity, the law burdens this creativity with  insanely complex and vague rules and with the threat of obscenely  severe penalties.

A rich ethic governs the  creation of doujinshi. It is not doujinshi if it is just a copy;  the artist must make a contribution to the art he copies, by  transforming it either subtly or significantly. A doujinshi comic can  thus take a mainstream comic and develop it differently—with a  different story line. Or the comic can keep the character in character  but change its look slightly. There is no formula for what makes the  doujinshi sufficiently “different.” But they must be different if they  are to be considered true doujinshi. Indeed, there are committees that  review doujinshi for inclusion within shows and reject any copycat  comic that is merely a copy.

“circles” of creators from across Japan  produce these bits of Walt Disney creativity

The problem with this story, however, as Mehra plainly acknowledges,  is that the mechanism producing this laissez faire response is not  clear. It may well be that the market as a whole is better off if  doujinshi are permitted rather than banned, but that doesn't explain  why individual copyright owners don't sue nonetheless. If the law has  no general exception for doujinshi, and indeed in some cases individual  manga artists have sued doujinshi artists, why is there not a more  general pattern of blocking this “free taking” by the doujinshi  culture?

erhaps the best account in the end was offered by a  friend from a major Japanese law firm. “We don't have enough lawyers,”  he told me one afternoon. There “just aren't enough resources to  prosecute cases like this.”

Yet there is an obvious reluctance, even among Japanese lawyers, to  say that the copycat comic artists are “stealing.” This form of Walt  Disney creativity is seen as fair and right, even if lawyers in  particular find it hard to say why.

 

It's the same with a thousand examples that appear everywhere once  you begin to look.

Instead, every society has left a certain bit of its culture free for  the taking—free societies more fully than unfree, perhaps, but all  societies to some degree.

 

The hard question is therefore not whether a culture is free.  All cultures are free to some degree. The hard question instead is “ How free is this culture?” How much, and how broadly, is the culture  free for others to take and build upon? Is that freedom limited to  party members? To members of the royal family? To the top ten  corporations on the New York Stock Exchange? Or is that freedom spread  broadly? To artists generally, whether affiliated with the Met or not?  To musicians generally, whether white or not? To filmmakers generally,  whether affiliated with a studio or not?

“Media literacy,” as Dave Yanofsky, the executive director of Just  Think!, puts it, “is the ability . . . to understand, analyze, and  deconstruct media images. Its aim is to make [kids] literate about the  way media works, the way it's constructed, the way it's delivered, and  the way people access it.”

 

This may seem like an odd way to think about “literacy.” For most  people, literacy is about reading and writing. Faulkner and Hemingway  and noticing split infinitives are the things that “literate” people  know about.

it is increasingly important to  understand the “grammar” of media. For just as there is a grammar for  the written word, so, too, is there one for media. And just as kids  learn how to write by writing lots of terrible prose, kids learn how to  write media by constructing lots of (at least at first) terrible media.

From my perspective, probably the most important  digital divide is not access to a box. It's the ability to be empowered  with the language that that box works in. Otherwise only a very few  people can write with this language, and all the rest of us are reduced  to being read-only.

 

“Read-only.” Passive recipients of culture produced elsewhere. Couch  potatoes. Consumers. This is the world of media from the twentieth  century.

“But isn't education about teaching kids to write?” I asked. In part,  of course, it is. But why are we teaching kids to write? Education,  Daley explained, is about giving students a way of “constructing  meaning.” To say that that means just writing is like saying teaching  writing is only about teaching kids how to spell. Text is one part—and  increasingly, not the most powerful part—of constructing meaning.

The  blog is a kind of public diary, and within some cultures, such as in  Japan, it functions very much like a diary.

Blogs allow for public discourse without  the public ever needing to gather in a single public place.

 

“I think you have to take the conflict of interest” out of  journalism, Winer told me. “An amateur journalist simply doesn't have a  conflict of interest, or the conflict of interest is so easily  disclosed that you know you can sort of get it out of the way.”

Blog space gives amateurs a way to enter the debate—“amateur” not in  the sense of inexperienced, but in the sense of an Olympic athlete,  meaning not paid by anyone to give their reports.

As Brown believes, we learn by tinkering. When “a lot of us grew up,”  he explains, that tinkering was done “on motorcycle engines, lawn-mower engines, automobiles, radios, and so on.” But digital  technologies enable a different kind of tinkering—with abstract ideas  though in concrete form. The kids at Just Think! not only think about  how a commercial portrays a politician; using digital technology, they  can take the commercial apart and manipulate it, tinker with it to see  how it does what it does. Digital technologies launch a kind of  bricolage, or “free collage,” as Brown calls it. Many get to add to or  transform the tinkering of many others.

 

The best large-scale example of this kind of tinkering so far is free  software or open-source software

Earlier technologies, such as the typewriter or word  processors, helped amplify text. But the Web amplifies much more than  text. “The Web . . . says if you are musical, if you are artistic, if  you are visual, if you are interested in film . . . [then] there is a  lot you can start to do on this medium. [It] can now amplify and honor  these multiple forms of intelligence.”

As Brown puts  it, “the Web [is] the first medium that truly honors multiple forms of  intelligence.”

We're building a technology that takes the magic of Kodak, mixes  moving images and sound, and adds a space for commentary and an  opportunity to spread that creativity everywhere. But we're building  the law to close down that technology.

 

“No way to run a culture,”

These separate stories sing a common theme. If “piracy” means  using value from someone else's creative property without permission  from that creator—as it is increasingly described today¹⁹—  then every industry affected by copyright today is the product  and beneficiary of a certain kind of piracy. Film, records, radio,  cable TV. . . . The list is long and could well be expanded. Every  generation welcomes the pirates from the last. Every generation—until  now.

 

This is piracy plain and simple. Nothing in the argument of this  book, nor in the argument that most people make when talking about the  subject of this book, should draw into doubt this simple point: This  piracy is wrong.

 

Which is not to say that excuses and justifications couldn't be made  for it. We could, for example, remind ourselves that for the first one  hundred years of the American Republic, America did not honor foreign  copyrights. We were born, in this sense, a pirate nation. It might  therefore seem hypocritical for us to insist so strongly that other  developing nations treat as wrong what we, for the first hundred years  of our existence, treated as right.

If 99.4 percent is not good enough, then this is a war on  file-sharing technologies, not a war on copyright infringement. There  is no way to assure that a p2p system is used 100 percent of the time  in compliance with the law, any more than there is a way to assure that  100 percent of VCRs or 100 percent of Xerox machines or 100 percent of  handguns are used in compliance with the law. Zero tolerance means zero  p2p. The court's ruling means that we as a society must lose the  benefits of p2p, even for the totally legal and beneficial uses they  serve, simply to assure that there are zero copyright infringements  caused by p2p.

Zero tolerance has not been our history. It has not produced the  content industry that we know today.

 

So copyright's duration has increased dramatically—tripled in the  past thirty years. And copyright's scope has increased as well—from  regulating only publishers to now regulating just about everyone. And  copyright's reach has changed, as every action becomes a copy and hence  presumptively regulated. And as technologists find better ways to  control the use of content, and as copyright is increasingly enforced  through technology, copyright's force changes, too. Misuse is easier to  find and easier to control. This regulation of the creative process,  which began as a tiny regulation governing a tiny part of the market  for creative work, has become the single most important regulator of  creativity there is. It is a massive expansion in the scope of the  government's control over innovation and creativity; it would be  totally unrecognizable to those who gave birth to copyright's control.

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 would find it rational to ignore new cultural trends. ³³ Lumbering giants not only don't, but should not, sprint. Yet if  the field is only open to the giants, there will be far too little  sprinting.

  

There is something innocent and obvious about the claim of the  copyright warriors that the government should “protect my property.” In  the abstract, it is obviously true and, ordinarily, totally harmless.  No sane sort who is not an anarchist could disagree.

 

But when we see how dramatically this “property” has changed— when  we recognize how it might now interact with both technology and markets  to mean that the effective constraint on the liberty to cultivate our  culture is dramatically different—the claim begins to seem less  innocent and obvious. Given (1) the power of technology to supplement  the law's control, and (2) the power of concentrated markets to weaken  the opportunity for dissent, if strictly enforcing the massively  expanded “property” rights granted by copyright fundamentally changes  the freedom within this culture to cultivate and build upon our past,  then we have to ask whether this property should be redefined.

 

Not starkly. Or absolutely. My point is not that we should abolish  copyright or go back to the eighteenth century. That would be a total  mistake, disastrous for the most important creative enterprises within  our culture today.

 

But there is a space between zero and one, Internet culture  notwithstanding.

 

For the single point that is lost in this war on pirates is a point  that we see only after surveying the range of these changes. When you  add together the effect of changing law, concentrated markets, and  changing technology, together they produce an astonishing conclusion:  Never in our history have fewer had a legal right to control more of  the development of our culture than now.

 

Not when copyrights were perpetual, for when copyrights were  perpetual, they affected only that precise creative work. Not when only  publishers had the tools to publish, for the market then was much more  diverse. Not when there were only three television networks, for even  then, newspapers, film studios, radio stations, and publishers were  independent of the networks. Never has copyright protected such  a wide range of rights, against as broad a range of actors, for a term  that was remotely as long. This form of regulation—a tiny regulation  of a tiny part of the creative energy of a nation at the founding—is  now a massive regulation of the overall creative process. Law plus  technology plus the market now interact to turn this historically  benign regulation into the most significant regulation of culture that  our free society has known.

As was  the case in the Soviet Union, though for very different reasons, we  will begin to see a world of underground art—not because the message  is necessarily political, or because the subject is controversial, but  because the very act of creating the art is legally fraught. Already,  exhibits of “illegal art” tour the United States.³ In what  does their “illegality” consist? In the act of mixing the culture  around us with an expression that is critical or reflective.

But fair use in America simply means the right to hire a lawyer to  defend your right to create. And as lawyers love to forget, our system  for defending rights such as fair use is astonishingly bad—in  practically every context, but especially here. It costs too much, it  delivers too slowly, and what it delivers often has little connection  to the justice underlying the claim. The legal system may be tolerable  for the very rich. For everyone else, it is an embarrassment to a  tradition that prides itself on the rule of law.

 

This is how code becomes law. The controls built into  the technology of copy and access protection become rules the violation  of which is also a violation of the law. In this way, the code extends  the law—increasing its regulation, even if the subject it regulates  (activities that would otherwise plainly constitute fair use) is beyond  the reach of the law. Code becomes law; code extends the law; code thus  extends the control that copyright owners effect—at least for those  copyright holders with the lawyers who can write the nasty letters that  Felten and aibopet.com received.

By insisting on the  Constitution's limits to copyright, obviously Eldred was not endorsing  piracy. Indeed, in an obvious sense, he was fighting a kind of  piracy—piracy of the public domain. When Robert Frost wrote his work  and when Walt Disney created Mickey Mouse, the maximum copyright term  was just fifty-six years. Because of interim changes, Frost and Disney  had already enjoyed a seventy-five-year monopoly for their work. They  had gotten the benefit of the bargain that the Constitution envisions:  In exchange for a monopoly protected for fifty-six years, they created  new work. But now these entities were using their power—expressed  through the power of lobbyists' money—to get another twenty-year  dollop of monopoly. That twenty-year dollop would be taken from the  public domain. Eric Eldred was fighting a piracy that affects us all.

Here is the core of the harm that comes from extending terms: Now  that technology enables us to rebuild the library of Alexandria, the  law gets in the way. And it doesn't get in the way for any useful  copyright purpose, for the purpose of copyright is to enable the  commercial market that spreads culture. No, we are talking about  culture after it has lived its commercial life. In this context,  copyright is serving no purpose at all related to the spread of  knowledge. In this context, copyright is not an engine of free  expression. Copyright is a brake.

 

What does this industry really want?

 

With very little effort, the warriors could protect their content. So  the effort to block something like the Eldred Act is not really about  protecting their content. The effort to block the Eldred Act is  an effort to assure that nothing more passes into the public domain. It  is another step to assure that the public domain will never compete,  that there will be no use of content that is not commercially  controlled, and that there will be no commercial use of content that  doesn't require their permission first.

 

The opposition to the Eldred Act reveals how extreme the other side  is. The most powerful and sexy and well loved of lobbies really has as  its aim not the protection of “property” but the rejection of a  tradition. Their aim is not simply to protect what is theirs. Their  aim is to assure that all there is is what is theirs.

But we as a culture have lost this sense of balance. We have lost the  critical eye that helps us see the difference between truth and  extremism. A certain property fundamentalism, having no connection to  our tradition, now reigns in this culture—bizarrely, and with  consequences more grave to the spread of ideas and culture than almost  any other single policy decision that we as a democracy will make.

 

 

 

A simple idea blinds us, and under the cover of darkness, much  happens that most of us would reject if any of us looked. So  uncritically do we accept the idea of property in ideas that we don't  even notice how monstrous it is to deny ideas to a people who are dying  without them. So uncritically do we accept the idea of property in  culture that we don't even question when the control of that property  removes our ability, as a people, to develop our culture  democratically. Blindness becomes our common sense.

IBM  is increasingly shifting its focus to the GNU/Linux operating system,  the most famous bit of “free software”—and IBM is emphatically a  commercial entity. Thus, to support “open source and free software” is  not to oppose commercial entities. It is, instead, to support a mode of  software development that is different from Microsoft's.⁸

 

The danger in media concentration comes not from the concentration,  but instead from the feudalism that this concentration, tied to the  change in copyright, produces. It is not just that there are a few  powerful companies that control an ever expanding slice of the media.  It is that this concentration can call upon an equally bloated range of  rights—property rights of a historically extreme form—that makes  their bigness bad.

And if there's nothing wrong with selling the  public domain, then there could be nothing wrong, in principle, with  selling access to material that is not in the public domain.

 

But what if the only way to get access to social and scientific data  was through proprietary services? What if no one had the ability to  browse this data except by paying for a subscription?

 

As many are beginning to notice, this is increasingly the reality  with scientific journals. When these journals were distributed in paper  form, libraries could make the journals available to anyone who had  access to the library. Thus, patients with cancer could become cancer  experts because the library gave them access. Or patients trying to  understand the risks of a certain treatment could research those risks  by reading all available articles about that treatment. This freedom  was therefore a function of the institution of libraries (norms) and  the technology of paper journals (architecture)—namely, that it was  very hard to control access to a paper journal.

Public Library of Science  (PLoS)

The Creative Commons is a nonprofit  corporation established in Massachusetts, but with its home at Stanford  University. Its aim is to build a layer of reasonable copyright  on top of the extremes that now reign. It does this by making it easy  for people to build upon other people's work, by making it simple for  creators to express the freedom for others to take and build upon their  work. Simple tags, tied to human-readable descriptions, tied to bullet-proof licenses, make this possible.

Simple —which means without a middleman, or without a lawyer.

These  three expressions together—a legal license, a human-readable  description, and machine-readable tags—constitute a Creative Commons  license.