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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.

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.

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

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

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.

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.”

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