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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.

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.

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.

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.

“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.”

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

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,”

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.

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.

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.

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.

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.

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.