Amateur-To-Amateur the Rise of a New Creative Culture by F

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No. 567 April 26, 2006 Routing

Amateur-to-Amateur The Rise of a New Creative Culture by F. Gregory Lastowka and Dan Hunter

Executive Summary

It is commonly said that copyright matters spread computer ownership, the rise of the because it encourages the production of socially Internet, and the development of social network- beneficial, culturally significant expressive con- ing software, threaten both the viability and the tent. Excessive focus on copyright law and policy, desirability of centralized control over the steps however, can obscure other information practices in the creative cycle. Those functions are being that also produce beneficial and useful expression. performed increasingly by individuals and disor- The functions that make up the creative cycle— ganized, distributed groups. creation, selection, production, dissemination, This raises questions about copyright as the promotion, sale, and use of expressive content— main regulatory force in creative information have historically been carried out and controlled practices. Copyright law assumes a central con- by centralized commercial actors. However, all of trol structure that applies less well to the creative those functions are undergoing revolutionary content cycle with each passing year. Copyright decentralization and disintermediation. law should be adjusted to recognize and embrace Different aspects of information technology, a distributed, decentralized creative cycle and the notably the digitization of information, wide- expanded marketplace of ideas it promises.

______F. Gregory Lastowka is an assistant professor of law at Rutgers-Camden School of Law. Dan Hunter is an assistant professor of legal studies at the Wharton School, University of Pennsylvania. 326109 PA567 1st Class.qxp 4/7/2006 12:01 PM Page 2

Copyright’s Introduction tices. Part of the friction is also attributable sphere has grown to copyright’s extraordinary scope. The two Copyright law today is like Rome at the are closely related. to encompass height of its empire. Rome was the center of Whatever the root of the current friction, a wide range the world, and the Roman Empire stretched the populace today, more than at any time pre- of activities from Syria to Britain, practically to the limits viously, is a player in the creative cycle. The of the imagination. Over centuries, Rome had public is creating, selecting, distributing, and involving the expanded its borders until it influenced a vast recasting information and is increasingly production, multitude of diverse societies. Roman control being policed and monitored pursuant to lasted for centuries, but eventually Rome fell copyright laws. Copyright’s former consumers reproduction, when the barbaric Visigoths stormed Rome’s are now copyright’s amateurs—the creators, distribution, gates in AD 410. Some people surely saw the producers, and disseminators of content. That and use of sack of Rome as the end of culture and civi- has important consequences for our system of lization, yet one could also frame it, not as a copyright. information. fall, but as a transformation. Rome’s empire People speak of copyright “consumers” became a less politically unified set of social engaged in the consumption of information groups, states, and governments. “content,” and those terms are correct insofar Like that of Rome, copyright’s empire has as they point to the fact that payments are expanded aggressively in the past few cen- regularly made for books, movies, and music. turies, and it now dominates a vast terrain of But they are also misleading: They tend to information practices. From relatively hum- conflate the physical medium with the infor- ble origins in regulating book-printing mation contained on it. Copyright is a law monopolies, copyright’s sphere has grown to regulating information practices, not a law encompass a wide range of activities involv- about tangible products. ing the production, reproduction, distribu- Cars consume gasoline and people con- tion, and use of information. sume food, but the information that is the Copyright is by and large imperial: copy- subject of copyright can never be consumed.2 right owners, specialists, and stakeholders After a book is read, the information remains. shape the scope and enforcement of copyright As all concede, intellectual property is, in eco- laws. The citizenry, in their view, is the passive nomic terms, nonrivalrous. Talking about the beneficiary of the copyright regime and is consumption of information content creates a described as “readers,” “listeners,” “viewers,” or serious potential for confusion and demeans “consumers” of “content”—the product that the role that the public plays in creating the copyright specialists create. Though copyright universe of expressive content. law has grown largely inscrutable to the Instead of a model that posits separate greater public, that has not been overly signif- manufacturers and consumers, consider the icant: The public is not regarded as part of the creation of content as a feature of human content-production processes.1 expressive activity. The amount of expressive Like Rome’s empire, copyright finds itself content created by and available to individu- today under threat from its borders. People als today is staggering, and, surprisingly, are increasingly aware that they are being copyright law has little to do with it. The “taxed” by copyright’s restrictions, but they majority of Americans today have computers have only a vague notion of how allegiance to that give them regular access to the informa- copyright benefits them. That discontent is tion phenomenon known as the World Wide largely attributable to the fact that copy- Web. A recent Pew Internet study on the cre- right’s formerly passive consumer is increas- ation of online content by individuals found ingly an active participant in the creative that 53 million Americans have uploaded cycle. The average citizen feels copyright law works to the net, including writing, art, video, intruding on her personal information prac- and audio creations.3

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The term “amateur-to-amateur” describes realm of all information and communication. the social phenomenon of popular informa- That line is increasingly blurred. The tangible tion creation and free distribution. The produc- fixation requirement in copyright law has joined er-participants in this process are “amateurs” with technological advances to increase the because they lack financial and proprietary amount of copyrighted material. Distributed- motives.4 The audience-participants are also network technologies are inherently problemat- amateurs because they generally do not pay for ic from the standpoint of copyright theory and the information that other amateurs create or enforcement. Peer-to-peer technologies like the the services they provide. They often build Internet are a substantially different type of upon, copy, select, and retransmit the original information technology than the technologies information in ignorance, and in technical vio- addressed by copyright in the past. lation, of copyright law. Emerging digital and network technolo- A leading example of such amateur partici- gies are challenging copyright law’s claim to pation in copyright processes is the social phe- prominence in creative information practices. nomenon of Web logs, or “blogs”: regularly Copyright has historically facilitated informa- updated and freely accessible Internet-based tion distribution by way of centralized and writings. The Pew survey indicated that some- integrated models of creation and distribu- where between 2 and 7 percent of U.S. Internet tion. Seven processes have traditionally been Emerging digital users were creating blogs in 2004. Web logs are chained together in this model: creation, selec- and network clearly protected by copyright and often link tion, production, dissemination, promotion, technologies are to other blogs or documents available on the purchase, and use. Until recently, all seven Internet. Millions of people write and read functions were conjoined out of necessity and challenging blogs every day, and during the past few years were under the control of centralized interme- copyright they have become a regular source of popular diaries. Only profitable works could be pro- law’s claim to news, information, and commentary. duced and distributed, and those works were Blogs are thus displacing, at least to some controlled, primarily, by integrated business prominence degree, the information and communication operations that took an intense interest in in creative space previously occupied by traditional protecting their business models through media such as television, radio, and newspa- copyright laws. The past model of centraliza- information pers. Yet people who write blogs are clearly not tion and focus on profit contrasts with the practices. acting in accord with the theory of copyright. present moment, in which the information The same can be said for those who post pho- practices that copyright affects are increasing- tographs, short stories, product reviews, and ly nonprofessional, socially distributed, and software programs to personal and communi- disintermediated. ty sites on the Web. Their motivations may be Two parallel spheres of information produc- based on the pursuit of reputation or self- tion exist today. One is a traditional, copyright- expression, but they are clearly not acting out based and profit-driven model that is strug- of a desire to commercially exploit an intellec- gling with technological change. The second is tual property right. The amateur-to-amateur a newly enabled, decentralized amateur produc- trend in information practices calls into question sphere, in which individual authors or tion the notion that the commercial incentive small groups freely release their work to other provided by copyright is the exclusive or pre- amateurs for experience, redistribution, and eminent way in which we encourage individu- transformation. The amateur sphere of content als to create useful content. production is today providing the public bene- Copyrighted content is a subset of all com- fits that were previously provided exclusively by municable information. Historically, the use of the mechanisms of copyright law. The emer- certain recording technologies (e.g., books, gence of amateur-to-amateur content develop- films, and magnetic tapes) has divided informa- ment as a viable alternative is something to her- tion protected by copyright from the general ald and to protect.

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communicable information. At the same time, Copyright and Information much communicable information does not Policy represent reality but rather extends or adds to it through expression: such things as songs, Copyright law creates a property right in fanciful stories, reenactments, and so on. communicative expression. In order to under- Copyright law regulates a subset of all that stand the effects of technological change and information—original works of authorship. the amateur-to-amateur trend on copyright, it Copyright generally does not cover infor- is important to understand and review the mation that lacks human origin. For exam- current scope of copyright. One of the most ple, when William Wordsworth revisited the important elements of U.S. federal copyright banks of the Wye river a few miles above law is that copyright obtains when communi- Tintern Abbey and experienced the sounds of cations are fixed in a tangible medium of waters rolling from their mountain springs, expression. the sight of steep and lofty cliffs, and the In the last two centuries, fixation technolo- plots of cottage ground and orchard tufts gies have proliferated, resulting in an ever- clad in one green hue, none of that raw sen- increasing quantity of communications gov- sory information was within the purview of erned by copyright. New information-capture copyright law.6 His description of it was. technologies have moved more and more types Copyright also excludes from its protection of communication and expression under the noncommunicative information patterns of umbrella of copyright protections. The most human origin. For instance, the arrangement significant of those technologies (for the pur- of cars in traffic, the shapes of piles of asphalt, poses of copyright) are distributed informa- the lines painted on highways, and the arrange- tion networks. The Internet is a vast expanse of ments of discarded boxes in a trashcan are all universally accessible stored and crafted infor- human-created perceptible patterns that can mation that has been created and freely dis- be captured and conveyed as visual informa- tributed largely by copyright amateurs. tion. But, generally, that information is not Fixation and copying are transparent today— subject to copyright protection. the average Internet user neither knows nor Artistry, while often assumed to be, is not a especially cares whether a “visit” to a website cre- requirement for copyright.7 Some amount of ates a digital copy of that website on a personal expressive “originality” is required for copy- computer. The Internet has essentially collapsed right protection to subsist, though. In the case the technological expansion of copyright pro- of Feist Publications v. Rural Telephone Service tection by making the fixation process trivial. Company,8 the Supreme Court ruled that a set Digital recorders, storage devices, and network of alphabetical phonebook listings could not In the last two connectivity for widespread dispersal are ubiqui- be protected by copyright law because they tous. Technologically fixed copies of expression lacked any creative spark of originality. centuries, fixation and communication have been removed from Finally, there is the requirement that a technologies have their past “privileged” status and are merely part work must be fixed in a tangible medium of 5 proliferated, of the process of conversing. expression. Among other things, the fixation requirement means, as a practical matter, resulting in an that copyright attaches to singular and iden- ever-increasing Copyright’s Theory of tifiable works segregated from the endless Information stream of human communicative activity by quantity of the four corners of a picture frame, for exam- communications “Information,” broadly speaking, is data ple, the silences at the beginning and end of a governed by that can be subject to perception, recording, or song, or the first and last pages of a novel. transmission. Almost all of perceptible reality Technology has changed that. Today, when copyright. can be recorded somehow and transposed into so much is continuously recorded, collabora-

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tive, contingent, and malleable, the begin- Copyright nings and ends of artistry can be hard to Copyright Creation and amateurs far determine. Technologies of Fixation Copyright casts a broad net over informa- outnumber tion recording and communication prac- Copyright began with the regulation of copyright tices. Copyright today extends to a vast field book printing. The invention of the printing professionals of information, including almost any record- press created the tremendous social revolu- ed and aggregated pattern of marks, symbols, tions in the 16th century and paved the way today. signals, or other representations. Indeed, for the Enlightenment. The reaction of the most of us infringe copyright laws as a mat- state to that change in information technol- ter of course in our information-saturated ogy, however, was neither delight nor the society. Even our children infringe copyrights immediate birth of copyright law—instead, long before they download Eminem songs: the state reacted with censorship. They sing “Happy Birthday” (a copyrighted In England, fear of the political effects of the song, the public performance of which is pro- unregulated press gave rise, in part, to the monop- tected) at public gatherings; they finger-paint olistic powers of the Stationers’ Company over pictures of Mickey Mouse (a copyrighted the printing industry. The Stationers’ Company character); they read Winnie the Pooh books was, essentially, a state-endorsed publishing car- (copyrighted works, public performance of tel.10 Of course, even in the early modern period, which is protected) aloud to their classes; and it was difficult to maintain the status quo in light they dress up their Barbie dolls and take pic- of technological change, and the Crown’s initial tures (creating unlicensed derivative works). attempts to control book-printing practices gave All those activities entail replicating or trans- way to intense criticism of the Stationers’ forming certain information patterns in vio- Company’s monopoly control of information lation of copyright law. distribution. Those infringing childhood activities will The result was a new statute that granted probably not trigger cease-and-desist letters. a relaxation of information regulation. The And, if litigated, any sensible judge would be Statute of Anne, enacted in 1710, is often hostile toward the plaintiffs. Yet, as a formal described as the statute that gave birth to and theoretical matter, those are indeed modern copyright control, but, in historical infringements of the exclusive rights granted context, copyright was an endorsement of a to copyright holders. democratic technology and a repeal of state As law professor Jessica Litman noted in censorship and monopoly.11 1996, “More than ever before, our copyright Technology has always been inextricably policy is becoming our information policy.”9 intertwined with copyright. As noted above, Seeing clearly the breadth of copyright’s puta- for a work to be protected under copyright tive control over information practices is an law, it must be “fixed in any tangible medium essential step in understanding the impor- of expression.”12 Fixation introduces technol- tance of amateur content. If one thinks of ogy into the equation of copyright at the very copyright exclusively in terms of the most moment of creation by requiring a physical popular music, the biggest paperback best- substrate and some method for fixing infor- sellers, and summer blockbuster movies, one mation patterns upon that substrate. For may be inclined to dismiss or deny the impor- example, federal copyright law does not grant tance of efforts of individuals who are not the “authors” of impromptu bedtime stories copyright “professionals.” However, if one any property rights in their original creations understands that copyright protections apply because they generally perform their artistry to e-mail, blogs, and digital photographs, it is through the spoken (but unrecorded) word. It easy to see that copyright amateurs far out- does, on the other hand, protect quotidian number copyright professionals today. communications that are fixed, such as digital

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photographs, doodles, and business memo- tion are increasingly archived online and randa. One might thus argue that copyright is searchable. A few keystrokes might be all that primarily about protecting pedestrian acts of it takes for a knowledgeable person to unearth recording, and only collaterally about protect- a typo-laden listserv debate that you partici- ing creativity. pated in a decade ago. Of course, the human body records infor- Although copyright has not historically mation as well. Human beings have, in their regulated our conversations and private lives, nervous systems, a very impressive set of senso- it is beginning to occupy this new terrain. In ry input mechanisms—a highly diverse and syn- an era of ubiquitous e-mail access and camera- chronous set of high-bandwidth visual, audito- phones, copyright law will increasingly be ry, tactile, gustatory, and kinesthetic sensors.13 used to regulate all forms of human commu- And, as Wordsworth noted, in lonely rooms, nication. An ever-increasing number of works amid the din of towns and cities, when he will be fixed and therefore protected by copy- recalled the Wye, the human mind’s playback right, and an increasing number of fixations technology is equally impressive and complex. may infringe existing copyrights. Every record- Human memory may be somewhat “lossy”— ed and transmitted image, sound, and set of it obviously lacks the verity and persistence of keystrokes is a candidate for copyright litiga- Although contemporary digital formats. But, unlike a tion in the hands of a creative lawyer. As Paris copyright has book or a compact disc, one usually has access Hilton has recently demonstrated, the prolif- not historically to one’s internal recording media, and there is eration of cheap and widespread recording no need to go through boxes in the attic to technologies has led to the merger of private regulated our retrieve an old memory. The average individual expression with public performance and dis- conversations and can “retrieve” a musical tune from years gone by, play. Her case gave new meaning to “author- 16 private lives, it is “replay” a facsimile silently in the mind, and ship” of a creative work. experience some approximation of the experi- beginning to ence of an audible broadcast. However, because occupy this new the technologies of the human memory are so Copyright and Technologies poorly understood and so inherently private, of Infringement terrain. they are essentially ignored by copyright.14 Increasingly, however, our private mental The current conflict between technology recordings and interpersonal conversations and copyright is, in some ways, not very new. are difficult to disentangle from the expand- Because technology and copyright have always ing reach of copyright law. In the past, most been inseparable, the struggle over new infor- conversations took place in the medium of mation recording and distribution technolo- resonating air, and many social copyright- gies has always been the primary struggle ani- infringing activities (especially those of chil- mating copyright law. Copyright holders have dren) were limited to private spaces immune vilified the capabilities of all new technologies, from prying eyes. In the past 20 years, howev- such as the radio, photocopying, and the VCR, er, conversations have become increasingly as those technologies have emerged.17 Twenty fixed and public. Our random thoughts and years ago, the cassette tape, not Napster, was comments are no longer safely removed from the bugaboo of the Recording Industry surveillance by the seclusion of physical spaces Association of America. and evanescence. Instead, what we say is fixed The policy responses to new information- in public virtual spaces such as Web logs, list- recording technologies have been varied. In servs, and other online environments, where some cases, such as broadcast radio, the tech- random thoughts and quickly typed reactions nologies essentially escaped any severe regu- are transformed into new works protected by lation by copyright. In rare cases, copyright- copyright and subject to monitoring.15 Our related technologies have been treated more personal histories and dossiers of conversa- or less like machine guns, radar detectors,

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and drug paraphernalia.18 The typical mod- of piracy, as well as sweeping litigation. But ern outcome of heated technology battles, there are legislative efforts as well—such as however, has been technology-specific regu- attempts to create paracopyright laws like the lations. To take just one example, legislative anti-circumvention provisions of the Digital battles ultimately led to specific statutory Millennium Copyright Act.20 Such provisions provisions that regulate the use of photocopy bring copyright into conflict with digital tech- machines in libraries.19 nologies: copyright holders seek to prevent the The Internet is, in some respects, just dissemination of new digital technologies and another new recording technology that the to control the manner in which the public stakeholders of copyright law will attempt to makes technological use of digital information. tame. It is, in essence, simply a technological However, posing the question in terms of protocol enabling the transmission of pack- “copyright” versus “technology” ignores the ets of data between disparate computers that contributions of copyright amateurs. The are part of a larger network—a new technolo- Internet’s prominence today owes very little to gy of copying. the source of the copyright industry’s panic: But the crucial difference between the the trade in Britney Spears mp3s. The utility of Internet and the photocopier is not merely the World Wide Web is probably best reflected the Internet’s ubiquity or its digital nature. in Google and other search engines, which Instead, the crucial aspect of the Internet is point users to an abundance of free (but nom- that it is a unified, distributed network. The inally copyright-protected) works. From the early engineers of the Internet created this standpoint of copyright, one might assume distributed-network architecture because it that Google or the creators of its content was a much better and sturdier means of would be requiring payments. But Google pooling and sharing information resources. does not charge per copy or per use, and nei- When they crafted the Internet’s structure, ther do the websites, discussion lists, blogs, they ensured that the protocols for commu- and other sources that Google indexes.21 In nication were very simple. other words, though billions of online works The Internet protocol does not recognize (webpages) fall within the ambit of copyright, the legal distinction between facts and they are being offered for copying gratis (in expressions, nor does it recognize concepts some cases, with advertising, in others, not) to like “derivative works” or “joint authorship.” hundreds of millions of people. Its speed and vitality come from its simplici- This bears repeating: the authors and ty and its lack of central chokepoints where owners of the information that has made the traffic might be monitored for copyright Internet valuable are, for the most part, infringements (among many other things). doing nothing to limit public access to their The authors and In short, the Internet’s logical architecture is information property; instead, they seem to owners of the a fabulous way to move any digital file from glory in the popularity and social attention any computer to any other computer on a that flows from wide distribution of their information that vast network—and to do so in a way that is expression. has made the difficult to monitor. John Perry Barlow’s fundamental insight The copyright industries have laid out the in a 1994 Wired magazine article22—that cost- Internet valuable copyright issue posed by the Internet in this less, perfect reproduction should change are, for the way: How can the problem posed by the copyright as a social institution—was well- most part, doing Internet as a copying machine be solved? How founded. The problem is that copyright law can we best retool the Internet so that Britney has yet to notice. nothing to limit Spears mp3s are no longer traded on Kazaa? Amateur and decentralized production public access to The industries’ current answer, for the most processes are today forming an alternative to part, seems to be a combination of press releas- the copyright model. The “big picture” in cre- their information es and educational campaigns about the costs ative information practices is changing, and property.

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With the new technologies are playing a central role in the word, some idea or concept exists, but we development of the transformation. Decomposing the func- are concerned only with how content—the tions that make up the life cycle of content recorded information—moves from its origin digital technology, makes clear the impact of new digital and to its social use. We therefore need concern the Internet, and network technologies.23 And that will lead to ourselves only with the fixed record itself. social software, a better understanding of what we should do In textual works, such as this Policy about copyright. Analysis, words are piled on words, forming distributed- sentences, which in turn form paragraphs, information until eventually the process stops. The collec- Content and Copyright tion of words that results is called (somewhat networks are arbitrarily to be sure) “the final work” that pushing content For the past 10 years, many people have comprises the essay, the law review article, the control away from argued that copyright is done for. Legal book, the poem, or the newspaper story. This scholars began to build new theories of copy- first stage, in which a creator writes, compos- commercial right around changes in digital technology. es, draws, paints, or otherwise creates fixed exploitation Scholars sought to theorize the implications expression, is “creation.” of costless dissemination via peer-to-peer net- Creation has been in the hands of amateurs and toward works, and some of those scholars also rec- for a long time, but only for certain types of amateur-to- ognized the influence that cheap reproduc- works. In areas like writing simple stories, 24 amateur models. tion had on copyright. But the changed where all one needs is a quill or pen and an technologies of reproduction and dissemina- idea, amateurs have been active all along. tion are only part of the story. The same types However, creation in many fields has required of changes penetrate all other parts of the broad collaboration and large investment, creative cycle. which tends to preclude individual or amateur These changes are not really about copying creation.25 Historically, for example, aspiring or copyright; they are about the entire process filmmakers were unable to produce motion of content development, how expressive infor- pictures without the help of financial backers mation makes the full journey from creators to and technical specialists. It is not surprising, users. The creative content cycle entails seven then, that the film industry exists in a set of discrete functions: (1) creation, (2) selection, (3) geographically centralized areas and relies on production, (4) dissemination, (5) promotion, significant collaborative authorship to tie (6) purchase, and (7) use. Every one of the func- together the interests of those who invest in tions involved in this process is being decentral- projects and those who perform, direct, film, ized and “amateurized.” Until recently, content and sound record the works.26 Motion picture relied on centralized control of those functions, creation, as any credit sequence will reveal, and they reinforced a centralized, commercial- involves the efforts of numerous scriptwriters, ized process. However, with the development of directors, actors, camera crews, best boys, spe- digital technology, the Internet, and social soft- cial effect artists, and so on. And, of course, the ware, distributed-information networks are dominant means of organizing all those peo- pushing content control away from commer- ple is the firm. Hence, motion picture produc- cial exploitation and toward amateur-to-ama- tion is an industry that comprises a small teur models. number of studios. Other domains, like music and television, Creation have used expensive authoring technologies In the beginning was the word. Copyright and therefore have similar arrays of investors, began with the word, though today it can also performers, recording professionals, editors, begin with the mark, the sound, or, increas- and creative teams who create new works. In ingly, with the motion of a mouse or the tap of popular music, for instance, the creation of a a finger on a keyboard. In the instant before hit song will often involve a number of dis-

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parate groups of actors, including composers, first movie, Tarnation, was shown at the lyricists, singers and musicians, and produc- Sundance Festival. It was probably the first ers. In television production, one finds multi- feature-length film edited entirely on iMovie ple collaborating scriptwriters, creative direc- and cost $218.32 in videotape and materials.29 tors, actors, and crews. In animation, various The proliferation of cheap, software-en- teams supervise various aspects of the creative abled authoring tools has affected all copyright process; in entertainment software, a team of industries. The impact of digitization on ama- programmers will create and refine the code of teur authorship first became obvious in the a major project. 1980s and 1990s with the advent of the home Advances in technology, however, are dra- personal computer. The standard-issue desk- matically reducing the costs of formerly top publishing programs on home personal expensive creative genres. Digital technology computers enabled amateur writers to com- has reduced creation cost largely by, as John pose, edit, typeset, and print legible and attrac- Perry Barlow observed, detaching information tive materials in ways that were previously from the physical plane.27 The technologies of within the technical capabilities of only the information capture, processing, and storage professional publishing industry.30 Desktop have shifted away from more cumbersome publishing significantly transformed printed analog equipment to cheap, lightweight, digi- textual information practices in our society. Advances in tal equipment and software. Although the technical revolution spelled the technology are Individuals now have many of the creation impending demise of many small commercial dramatically tools that were formerly available only to pro- printing shops, the book-publishing industry fessionals in the content industries. For accepted the commercial benefits of the tech- reducing the instance, in the area of music, software tools nological shift and was not threatened by it. costs of formerly today can replicate almost all the capabilities of Distributing desktop-published paper texts expensive creative the 1980s recording studio. Tools like Sonic was not possible on a grand scale for the average Foundry’s ACID range, Apple’s GarageBand, individual. Yet, as discussed in more detail below, genres. and Digidesign’s ProTools now provide ama- personal computer networks in the 1980s did teurs with high-quality recording, looping, begin to shift distribution potentials to individu- voice cleaning and audio effects for less than als during the early period of the personal com- the price of a secondhand guitar. And some of puter. E-mail messages, USENET and BBS dis- the early results of those amateur-friendly tech- cussions, educational papers, and FAQs prolifer- nologies have competed successfully with the ated during the 1980s. Today, the Web is clearly results of professional producers. In late 2003 the primary home of amateur creativity. Gary Jules and Michael Andrews’s cover ver- Most of the millions of Web logs today are sion of Tears for Fears’ “Mad World” went to decidedly amateur and personal works, record- number-one on the English charts. It was pro- ing the author’s life experiences, random duced in Andrews’s basement for $50.28 thoughts and observations, and romantic The rise in the popularity and prominence crises. If one doesn’t know the blogger, this of low-cost amateur production can be seen in type of material may not be very interesting; yet virtually all other types of content as well. The almost every blogger has a friend or family costs of capital that once precluded amateur member who will serve as an occasional reader. creation and required large-scale capital are Some bloggers have even become the equiva- rapidly vanishing. In the case of movies, cam- lent of small-town celebrities, attracting hun- eras, film stock, editing suites, and mastering dreds of thousands of readers per day. devices were prohibitively expensive for all but As will be discussed further below, Web the most highly capitalized players. Today the logs are increasingly offering one-stop infor- costs of both information capture and editing mation and entertainment shopping by have dropped dramatically, thanks to tools delivering, in addition to hyperlinks and tex- that are purely digital. Jonathan Caouette’s tual commentary, original digital photogra-

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phy, music and sound files, software pro- mechanics of selection in high-risk industries grams, and multimedia presentations. like pop music and movies. Those industries are based on a venture capital model of risky Selection production: No one knows what type of con- The next function in the traditional chain of tent is going to be successful, so many bets are copyright practices is selection. By “selection” placed on various alternative products.31 That we mean the exercise of some discriminatory is necessary because, even with selection judgment about which creative works warrant agents making their best bets, the majority of reproduction and distribution. Selection is the films, books, and songs are commercial flops. process whereby someone decides which works Yet one high-performing “hit” will more than are worthy of the additional investment in con- cover the costs of a large number of failures.32 veyance to society. One might suggest that cre- Optimizing the flop/hit ratio is the job of the ation itself is a form of selection. Every process selection agent, and the high stress and high of creating “new” work actually involves the turnover of staff in those industries are symp- intentional or accidental “selection” of words, toms of an environment where, as William sounds, and images from a palette of options. Goldman says, “no-one knows anything” Selection, however, may influence creation, as is about what makes the content successful, but often the case when an unfinished or planned agents have to bet anyway.33 work is selected for further development. Of course, some industries are less affected To understand how important the selection by those kinds of decisions than others, and function is in established copyright practices, the ease of being selected in a given industry is consider how the “spec screenplay” market generally inversely proportional to the expense functions. Tens of thousands of “speculative” and risk that the copyright intermediary will screenplays are created each year by aspiring agree to bear in order to exploit the content writers and mailed to agents, producers, pub- commercially. Getting a movie made is so lishers, and other agents of the commercial expensive and risky that selection in that movie industry. Most such scripts go unread, a industry is incredibly protracted, time-con- number are rejected, and a very tiny percentage suming, and cautious. Music and novel pub- is actually judged worthy of commercial devel- lishing is slightly expensive and risky, and opment. selection involves choosing a small number of The decision that a script is worth consider- works that appear to provide appropriate ing for turning into a movie is the epitome of probabilities of an appropriate return on the selection function. But similar selection investment. functions exist in every copyright industry. At the other end of the spectrum, law Aspiring musicians, singers, and songwriters review publishing is underwritten by a com- send demo tapes to a jaded and besieged group bination of individual law school contribu- of music industry executives. Visual artists tions, income from Lexis and Westlaw, and Selection is the compete for shows and the attention of gallery law library subscriptions. In the absence of a process whereby owners. Every March and August, law profes- bottom line (other than reputation), law someone decides sors inundate law review editors with cord after review editors do not perform close calcula- cord of pulverized timber, in an effort to attract tions of risk and return for each article. Given which works are the attention of those who control access to the large number of law reviews in the United worthy of “high-ranking” publications. Selection is States, the number of articles is nearly equiv- absolutely necessary because investments alent to the number of slots for articles. the additional should not be made in works that will not Thus, most articles are essentially guaranteed investment in recoup investments in production and dissem- publication somewhere. In most of the tradi- conveyance to ination. tional copyright industries, publishing capi- The significance of selection agents’ role tal is scarce and a small percentage of the society. can be seen in the premium placed on the works that could be produced actually is pro-

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duced. Someone, somewhere, must make While digitization and the Internet lower The need for ex decisions about whether a given work is physical resource constraints, there is anoth- ante selection worth exploiting. er significant resource constraint alleviated The vast majority of copyright-protected by selection agents: the constraint of limited diminishes as works today never move past creation to the time. An infinite number of mixed-quality the resource process of commercial selection. For instance, works is much more frustrating for the aver- constraints on most authors of e-mail, diaries, snapshots, and age person than a set of preselected works. children’s birthday videotapes are not general- The average individual will pay someone else production and ly inclined to seek out commercial exploiters to screen out the worst and point out the dissemination are of their creations. An equally great number of best. The use of trusted selection agents may artists, composers, and authors work diligent- generally increase selection efficiency, if the lowered. ly to develop their craft in their spare time but aesthetic judgments of the selection agent never actually submit their efforts to commer- can be calibrated closely enough to the cial exploiters. The number of amateur musi- desires of the individual. cians who fail to get a recording contract is Today distributed selection is an emerg- dwarfed by the number who never even try. ing reality. In various ways, distributed selec- What takes place in selection is an invest- tion is replacing the past functions of the ment decision. The agents who are perform- entertainment industries by sifting through ing the selection function—the screenplay and prioritizing large numbers of works. readers and the movie executives with green- Increasingly, “social software” allows for the light authority, the commissioning editors for profiling of personal preferences, cross- trade books and magazines, the artist and indexing of those preferences among individ- repertoire agents for the pop music industry, uals, and thereby predicting with relative reli- and so on—are engaged in making ex ante deci- ability the preferences of consumers. sions about the ex post value of the content Perhaps the best known social software– under consideration. reliant tool is Google, which ranks the relevance That structure makes perfect sense in of any given website by determining the num- heavily centralized industries where valuable ber of other sites that are linked to it. As com- assets and resources have to be deployed in puter scientist Edward Felten has explained, order to exploit the content. It is impossible “Google is not a mysterious Oracle of Truth but in those industries to publish all content a numerical scheme for aggregating the prefer- available because only a fraction of content ences expressed by web authors.”34 Google fil- would cover the cost of transferring that con- ters out the vast panoply of irrelevant material tent to the individual consumer. by collecting relevance assessments made by The need for ex ante selection diminishes as other users. the resource constraints on production and dis- Capturing individual preferences and writ- semination are lowered. If one can economically ing preference algorithms that rank informa- produce and deliver all content, then there is far tion’s relevance are generally known as collab- less need to be selective. Cheap digital storage orative filtering. Analog collaborative filtering and transmission through distributed networks has existed for a long time. For instance, the are moving the physical resource constraints of notion of good “word of mouth” to drive up the past toward zero. In an environment of near- sales of movie tickets, Billboard’s listing of top zero-cost production and dissemination, it singles and albums, or the New York Times’s makes much less sense to have a selection agent listings of “bestsellers” are processes by which, making ex ante decisions about works that the to some extent, the public casts votes that general public might like to see. It makes more buoy the sales of information products. But sense to empower the individual consumer to well-written collaborative filtering software choose from among a larger array of works that can offer much more personalized and can be made available at lower cost. nuanced varieties of recommendation.

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The process of collaborative filtering by demonstrate distributed-selection character- software is perhaps best described by the name istics because each blog usually has a of one of the first systems, People Helping One “blogroll,” or list of other similar blogs, and Another Know Stuff, or PHOAKS.35 The idea is to will usually link to and respond to the posts match a person, you, for example, with people in other like-minded blogs. Thus, if you like, who are similar to you in meaningful ways and for instance, the libertarian commentary of who have rated or reacted to content previous- “Instapundit,”38 then its blogroll will direct ly. If we can categorize you as belonging to a you to the work of other, like-minded blog- group, say a group that likes books with par- gers. There are various mechanisms that ticular subjects and themes, then the book rat- allow this process to be performed and ings or book purchases of other people in that updated automatically. group can be used to recommend things you That is a form of collaborative filtering, will find appealing. Familiar commercial albeit a fairly simple one.39 There are a num- examples include TiVo’s suggested broadcasts, ber of other, more sophisticated, examples. Amazon’s book recommendations, and The technology news and commentary sites Netflix’s movie recommendations.36 of Kuro5hin and Slashdot provide a distributed Distributed selection is increasingly a more selection mechanism through their modera- Distributed reliable predictor of preferences than are the tion process.40 Any posting on those sites is selection is traditional industry selection agents—com- rated by multiple users, and an average score increasingly a missioning editors, movie executives, and so is assigned to the posting. Other users can on. Distributed selection is real-time, individ- then set their threshold, to see only those more reliable ually tailored, and resistant to the personal postings that are rated above a certain level. predictor of generalities, inconsistencies, and information The approach can be generalized beyond preferences than deficits that plague traditional industry blogs and technology-related websites. For agents. The average selection agent makes a example, Threadless.com adopts this approach are the traditional gut reaction decision about the interest level in the fashion industry: Contributors submit industry selection in a particular market or submarket. The algo- T-shirt designs to Threadless, and users both rithmic distributed selection agent makes vote and comment on the designs. Designs agents—commis- individualized predictions based on the end that are rated above a certain level are then sioning editors, user’s interests. made available for purchase by users. In the movie executives, Though Google, Amazon, TiVo, and Netflix film industry a number of sites developed by might be the most familiar examples of this well-known directors and actors allow the and so on. type of distributed selection agent, we are begin- aspiring screenwriter to post her screenplay ning to see a number of others in various con- and have it assessed by other writers, industry tent industries.37 In the music field, for exam- players, and eventually, perhaps, Kevin Spacey ple, AudioScrobbler is a plug-in for various and Francis Ford Coppola.41 While broad par- music-playing applications. In most mp3 play- ticipation in these types of opt-in voting and back applications, users can rate music they like review mechanisms may seem surprising (par- and dislike on a five-star scale. You think Björk’s ticularly in light of increasing voter apathy in “Pagan Poetry” is sheer poetry and rate it at five political elections), the American Idol show stars, but you think Britney Spears’s “Toxic” is, demonstrates that a broad base of people is well, toxic and give it one star. AudioScrobbler actually interested in ranking and rating pref- checks your ratings against the playlists of erences as a form of entertainment. other users and finds those users whose rank- That is not to say that distributed agents ings are most similar to yours. It then recom- are necessarily better than a centralized agent. mends songs that those users rate highly but Distributed selection is certainly subject to are not on your playlist. abuse by volunteers as well as capture by mar- In the text arena, decentralized selection is keters.42 But it seems inevitable that the func- even more obvious: Consider blogs. Web logs tion of content selection in the future will be

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more socially distributed. Central selection quickly and inexpensively reproducing the agents will lose their relative power in much original work onto those media. the same way that the proliferation of cable However, as is now well understood, the television channels has led to the decline in last 20 years have profoundly altered produc- prominence of the three major American tion and reproduction of content. This started broadcast networks. In situations in which we with the introduction of consumer reproduc- can actually compare centralized ex ante and tion technology: Xerox reprography, audio decentralized ex post selection directly—for cassettes, and VCRs. Those technologies were example, the ex post distributed Google search introduced at a time when distributed cre- engine as contrasted with the ex ante central- ation and selection of content were not possi- ized, human-selected Yahoo! directory—the ble, so we think of them as “reproduction” distributed agent has garnered greater market devices.44 However, more and more, reproduc- share because it apparently works better. And tion devices are content production devices. for scope of material covered, the work of the Today, of course, the content production volunteer, amateur, and socially distributed device known as the general-purpose computer Open Directory Project43 is more comprehen- is found in a huge number of homes and sive than the Internet directory produced by offices; it comes standard with disk drives suffi- Yahoo! cient to store untold amounts of information; Distributed networks are transforming it has a high-quality video device to display text, the selection function. The conclusion is sim- movies, and images; it can be outfitted with ple: Traditional centralized ex ante selection is paper printers to print text, documents, and costly and decreases total available content. images; and it inevitably includes CD-ROM/ Now that distributed selection is possible, ex CD-R drives that can play and copy music and post selection among works by decentralized data; and DVD/DVD-ROM/DVD-R drives that agents seems to be a better alternative. can play and copy movies. Increasingly, with lightweight laptops and more and more versa- Production tile PDAs like the Treo or even Apple’s iPod, the In the production function, someone general-purpose computer is becoming a invests in preparing a work for the market. In mobile and personalized media-and-content the area of original oil paintings, this might device and a vital personal accessory much like just mean finding a frame—the original copy- the standard eyeglasses and wristwatches of the righted work is the relevant object of con- 20th century. sumption. But outside of that niche market, Consumers once needed intermediaries production invariably entails the re-produc- such as the recording industry for the production of the work. Even in broadcasting, a work tion of music. The public needed the industry must be reproduced in order to be exploited to invest in producing copies because, among commercially. So, in the case of film, a cellu- other things, individual consumers could not loid print is struck. In the case of packaged press their own vinyl. Later, consumers could software and music, the gold master compact tape music, but that was time-consuming and Consumers disc is produced and the consumer CDs are there was some loss in the quality of the work. reproduced from it. In book and magazine Today, with the advent of perfect digital once needed publishing, the text and graphics are typeset copies, the public can take care of the produc- intermediaries and multiple copies are run off from that mas- tion function on its own. The music industry, such as the ter version. Large-scale commercial reproduc- which in the past only had to pursue commer- tion in the past required substantial capital cial operations with the means of mass pro- recording investments: the purchase of physical media duction, has found itself struggling against industry for that bore the copies of the original work— the production capabilities of the average the production paper, film stock, and so on—and the pur- home-computer owner. The ubiquity of pro- chase of expensive machinery capable of duction devices, and the absence of need for of music.

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The Internet intermediaries, is a profound change that has The Internet revolutionized distribution at revolutionized perhaps, as Jessica Litman recently observed, the same time it revolutionized production. assumed the status of a cliché.45 Ten years ago, when Barlow wrote his article in distribution at Not only is the computer a production Wired, he talked about how the Internet in the same time it device, but, as noted above, the Internet itself is general would affect dissemination. Since that revolutionized a technology of production. Each time a web- time, the model of dissemination has become site or a blog is accessed, packets of data are even more decentralized with the develop- production. transported through the network to be re- ment of peer-to-peer networks like Napster, assembled on the requesting system.46 People Gnutella, FastTrack, FreeNet, and, most do not speak of “requesting the production of recently, BitTorrent. As others have pointed a copy” of a webpage, but that is exactly what out, those technologies might be said to mir- takes place when they “visit” websites. Thanks ror the information network structure of the to the production technology of the Internet Internet generally, in that they move away and the creative potential of the personal com- from centralized nodes of information pro- puter, “self-publishing” now abounds. duction toward distributed, variable-path But the genius of cheaper, decentralized models without any clear center. production is, not just that people who oth- The extraordinary increases in the ease of erwise would publish can do so more cheap- production and dissemination are well-known, ly, but that those who never considered that so we need sketch only the most obviously rel- they could publish are now free to do so, and evant features of the change in dissemination. they are making the most of this opportuni- First, with the increase in the capacity of hard ty. The blogosphere, and the World Wide disks, with the greater availability of band- Web more generally, is simply the greatest width, with distributed indices and servers, and advance in self-expression and self-publish- with encrypted transmission, dissemination is ing since the invention of the printing press. increasingly decentralized and incapable of Based on the number of people involved, it central control. may well be the most democratic advance in Applications that use distributed dissemina- individual publishing ever. tion are proliferating all the time. At first, there The production function, like the cre- was transfer of packets from one computer to ation and selection functions, has been radi- another using TCP/IP, the Transmission cally decentralized and amateurized by the Control Protocol/Internet Protocol. Then there technology of distributed networks. The pro- was the sharing of files, and the major protocol duction of content, once a primary market was file transfer protocol or FTP. Not long after function of the copyright industry, is a large- that, protocols for electronic mail and web- ly transparent feature of the Internet and dis- pages were adopted. More recently, we have tributed networks. seen peer-to-peer file sharing and the distributed dissemination of information posted in Dissemination blog pages. The protocol for this, RSS,47 allows Dissemination has historically entailed the “newsfeeds” to be established for all blogs, distribution of copies of works to outlets for thereby providing for decentralized dissemina- purchase. Physical distribution beyond one’s tion of news and other current information. immediate sphere invariably requires the coor- Barlow predicted that decentralized dissem- dination of supply chains. Bookstores and ination of digital information would revolu- newsstands are the most obvious examples of tionize our society. That prediction is coming the text-publishing industry supply chain. All true. Decentralized dissemination of content is copyright industries in the era before the incredibly important, and it will continue to Internet required dissemination mechanisms. grow in power and prominence in the future. Film required shipment of celluloid stock, Of course, the dissemination function music was shipped on vinyl discs, and so on. deals only with getting content out to con-

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sumers. Consumers still have to be made wear, and vacations—all of which in turn re- aware of the content and be convinced that popularize the copyrighted work. “Brand they need it. And that is the job of the pro- licensing” is one of the success stories of the motion function. entertainment industries of the second half of the 20th century. Promotion The promotion function is not simply about While the creation, selection, production, generating hype by flashing the product before and dissemination of content are all neces- eyeballs at every conceivable opportunity. There sary functions in the content cycle, they are is certainly some of that, but the promotion not sufficient. It is one thing to produce and function is more interesting than the story told disseminate a work; it is quite another to lead by simple, left-leaning critiques of Madison the consumer to the work and convince her Avenue and Hollywood. Promoters must over- to purchase and use it. Arguably, the most come real limits on consumer time and interest. important function in the copyright business In order to do that, promoters must leverage has always been promotion. For a work to reputational capital and cultural associations in succeed, individual consumers must some- complex ways. For instance, publishing compa- how be made aware of the work’s existence nies maintain separate imprints for different and, more important, be convinced to pur- varieties of content. Those imprints accrue It is often chase the work (or access to it). brand recognition for the type and quality of the sophisticated In the past, the processes of selection and works they publish. The imprints “Prentice- promotion, not promotion were separate, both temporally Hall,” “Financial Times,” and “Penguin” are and strategically. The work of a selection agent well-known imprimaturs of style and quality in, the qualities of was to find the diamonds in the rough, but respectively, college textbooks, business news, the artist or the promoter was a specialist in selling dia- and trade paperback books. Yet they are actually the work, that monds, cubic zirconia, or whatever was on all brands of just one company, Pearson. hand. The genius of the entertainment indus- Publication of any work within one of those generates the try is not in selecting Britney Spears over a mil- imprints, or within any other imprint owned by revenues in lion wannabes. Britney Spears is probably no another company, provides a promotion signal better a singer or performer than her competi- that the new work is of a nature that consumers commercial tors on Star Search so many years ago. What is of previous content in that imprint like. copyright mostly responsible for Britney Spears’s cur- Likewise, many types of serial works, such as markets. rent place on the popular music charts is a magazines or journals, carry a strong promo- well-oiled celebrity promotion apparatus. It is tional signal: if you liked the June issue of Cat often sophisticated promotion, not the quali- Fancy, you will probably like the July issue of Cat ties of the artist or the work, that generates the Fancy. A similar mechanism is at work in small revenues in commercial copyright markets. record labels, where particular labels—Def-Jam The importance of the promotion func- Records or Rhino Records—become associated tion to copyright industries is hard to over- with particular styles of music. As with text- state, and it is ignored in almost all accounts publishing imprints, these are often brands of of copyright. The greatest works of art, music, larger music labels. For instance, Vivendi’s and writing are not significant while the pub- Universal Music Group owns MCA Records, lic is unaware of them. Only promotion makes Polygram, Island/Def Jam, Motown, Decca them socially important. Indeed, the marriage Records, Geffen/DGC Records, Universal of marketing to copyright has fueled the Records, Interscope Records, and Rising Tide, explosion of value in many copyrights today: whereas Bertelsmann owns Arista Records, witness how Disney has wed a diversified BMG, RCA Records, Bad Boy Records, LaFace copyright portfolio with synchronized mar- Records, Time Bomb Records, and Windham keting efforts, transforming works into Hill Group. Obviously, Bad Boy Records and brands that sell action figures, fast food, sleep- Windham Hill Group benefit from not being

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synonymous with Arista Records. They send Other virtual communities are emerging to divergent signals to their divergent consumers recommend content to their members. That about the content that bears their respective started with Usenet and list servers, expanded imprints. through Yahoo! Clubs, and now finds its The various copyright industries engage in home in the blogosphere. Distributed recom- many other types of activities as part of their mendation systems like Epinions have been promotion function. In the popular music built to express opinions on all manner of business, the singer, promoter, and music label things, people, and content. One can find promote the content with music videos, con- interactive communities of specialists who are cert tours, live radio appearances, and maga- devoted to any topic and provide expert opin- zine appearances. The promotion function is ion on all manner of content. That may seem primarily about finding a mechanism to con- something less than a paradigm shift, but, nect potential consumers with content they are comparing it with the centralized copyright interested in using. Promotion is probably the promotion model, consider how we might feel most important function making the differ- having 50 people in each section of the book- ence between successful and unsuccessful store/record shop/movie theater who do exploitation of copyrighted content. nothing but assess the content and offer One might think that this would not advice to us. Consumers today can find the change with the advent of the personal com- opinions of the experts and aficionados who puter and the Internet. Firms like Penguin or share their interests almost exactly. Sony still rely on television, radio, and bill- The promotion function is, and will be, board advertising; direct mailings; and other significantly affected by distributed net- types of expensive marketing to find cus- works. A distributed amateur selection func- tomers. It would be reasonable to assume that tion can fulfill most of the same social role amateur content could never compete with performed by the selection and promotion Britney Spears, because promotion is so key to functions. Although that hardly means that the prominence and success of content, and works will no longer be promoted, it means amateurs simply can’t afford to promote their that social software will increasingly become content. a promotional instrument that will be more Increasingly, however, we are seeing the diversified and less subject to control by cen- decentralization and consequent amateur- tralized actors. ization of the promotion function. In fact, the selection and promotion functions are Purchase and Use merging. Consider the discussion above Purchase, in the traditional theory of copy- about how selection no longer must be per- right, creates the incentive for creation and formed by centralized agents but can occur also subsidizes the previous five processes. In through distributed recommendation tech- exchange for cash, a consumer acquires the niques, using collaborative filtering and right to access a work—generally in the form of social software. The personalized recommen- a physical item containing the content—a CD, dations produced also may take the place of DVD, or book. Purchase can be unrelated to Increasingly we advertising, specialized imprints, and even the acquisition of physical media. In the case are seeing the critics. The rating of a particular movie, of movie theatres, museums, or concert halls, decentralization book, or article by people who are just like all the consumer is getting for her cash is a you may be a much better mechanism of pro- right to experience the content in air-condi- and consequent motion than any of the mechanisms that tioned comfort, perhaps while enjoying a bag amateurization of centralized actors have had at their disposal. of popcorn the size of her head. The review function in Amazon.com is one in With the proliferation of peer-to-peer sys- the promotion which individuals are, essentially, promoting tems, many commentators have weighed in function. content in a decentralized manner. on methods by which people within the

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copyright industry might be paid. Those upon the content, much has changed. In Copyright methods include levies on computer systems, essence, whereas the “use” stage of the creative policy should online tip jars, electronic equivalents of busk- process in the past was when a creation ing, a return to the system of artistic patron- reached the public, the “use” stage in the ama- celebrate the new age, or earning money through public per- teur-to-amateur model is merely the begin- powers of formance while online content acts as pro- ning of the next stage in the creative cycle. The collaborative and motional material. amateur end user may become the amateur Those approaches are innovative and recreator or redistributor.48 amateur artistry interesting, and they show that a decentral- That shift should not be lamented. What that digital ized purchase function, if needed at all, does was once the largely passive reception of con- not have to look like a typical retail transac- tent by the public can now be the receipt of technologies have tion. But a traditional purchase function is new matter to be recast in the workshop of made possible. possible, and easy, for decentralized actors. public creativity and conversation. The most Five years’ experience with online payment valuable creative works today are not placed demonstrates how simple it is for purchases on a pedestal and admired in repose. If a new to be made through the Internet. The prac- work provides something that is engaging tice of “micropayments,” once shunned as and valuable, the average citizen amateur can technically unfeasible, is becoming increas- now modify and revise it, adding a new ingly common in the digital marketplace. soundtrack, a new chapter, a different edit, or But it also must be observed that a direct a derivative rendition. Each consumer is tech- financial return is not the foremost goal of nologically (though perhaps not legally) free, many players in the content chain. The former given time and inclination, to create his or goal of creating content associated with a par- her own version of the work and place it with- ticular business or artist in order to sell that in an ever-growing and faster-growing corpus content is giving way to individual authorship of works. and selection designed to build an artist’s When copyright industries look at those brand and personal reputation or to establish activities, they often decry amateur retooling a person’s membership in an online social of their properties as a form of theft. It is community. While such reputation enhance- nothing of the sort. Copyright policy should ment and community recognition will gener- celebrate the new powers of collaborative and ally lead to financial rewards of some sort, this amateur artistry that digital technologies may not occur through direct purchase. Just as have made possible and encourage their use. likely, it will be through live performance, Instead of using Congress and the courts to speaking engagements, co-branding, market- prohibit this kind of creative flowering, we ing of tangible products, and the like. should look for new ways to legally accom- The final function in the content chain is modate and encourage the democratic and use: the experience or manipulation of the creative potentials we are seeing. content by the purchaser. It might appear strange to include this as a “function” of the creative cycle at all, because the commercial Centralization and exploitation of a copyrighted product would Decentralization seem to begin with its creation and end with its purchase. However, use is an integral Many functions are involved in the cre- aspect of the life cycle of creative content. ation and commercial exploitation of con- If one thinks of use under the traditional tent. As we have seen, those functions have copyright model, use is merely passive recep- traditionally been performed by large, cen- tion of the content, and nothing has changed. tralized businesses. As it has democratized However, if one sees use as adapting, retrans- the steps in the creative cycle, technology has mitting, modifying, or otherwise building also decentralized those functions.

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Centralization during Expansion economies of scale in the promotion func- Until recently, centralized commercial tion: Advertising is high cost and capital control was intrinsic to nearly all the func- intensive. Thus, it is the domain of large pro- tions of the creative cycle discussed above. fessionalized firms. That was not a product of legal constraints To a somewhat lesser degree, creation, pur- but rather of the interplay between the mar- chase, and use were also subject to the control ketplace and the relevant technologies. Like of the agents of production and dissemina- Rome at the height of its empire, during the tion. As we suggested earlier, creation and period prior to digital technology, the copy- selection are tightly intertwined processes. It right regime reinforced centralized control of might have been possible to write a book in a almost every content function. lonely garret, but that book could not reach The lynchpins of the creative cycle requir- the public if it remained in the garret. ing centralized commercial control were pro- Therefore, selection was a function that made duction and dissemination. They were both centralized commercial actors essential even in capital-intensive functions that benefited a creative cycle that began with a lone author. from vertical integration and economies of Indeed, the creation function was in some scale. It was impossible to produce any of the cases subsidized and controlled by the same Until recently, content without big, expensive machines and entities that handled the other functions, centralized significant investment in labor. Offset print- again because that decreased risks. Where par- commercial ing presses, vinyl-record-mastering machines, ticular formulas are discovered—“boy bands” television cameras the size of cars, and record- in music, “chick-lit” for books, animated control was ing studios the size of warehouses all came movies based on fairytales, and so on—the intrinsic to nearly with hefty price tags and involved a skilled and same firms that act as promoters and distrib- all the functions expensive workforce. Dissemination was utors often control and supervise the creative equally expensive and subject to central con- process and essentially become the agents of of the creative trol. The basic model for the distribution of authorship. cycle. copyrighted content was the same as the Still, to some degree, decentralization of model for the distribution of widgets, or any content creation benefited content firms other physical object. Content generally came more than did fixed centralized control. embodied in some physical medium, and so Stables of artists are expensive to maintain, an expensive supply chain was necessary. and their productivity, in some cases, is diffi- The capital-intensive nature of produc- cult to ensure; think of early Hollywood’s “star tion and dissemination created a bottleneck system.” Outside creators, not maintained in and guaranteed the influence of producers the employ of the centralized actors, can be and distributors over all the other functions relied on to fuel the industry with new ideas. in the content cycle. The most obvious were In many industries, there is never a shortage of the adjacent functions of selection and pro- content being offered by eager outsiders. For motion. Effective selection was the main way instance, musical compositions and screen- to maximize purchases and recoup invest- plays are often created in a decentralized fash- ments in production and dissemination. So ion but are then purchased and used by indus- the selection function relied on skilled agents try entities as elements of sound recordings who were in the employ of those players in and films. Artistic genius, integrity, and rebel the copyright industries that controlled pro- independence have long been part of a duction and distribution. mythology attractive to creative artists. They The promotion function was also firmly have also made good grist for the mill of com- controlled by the industry. As with selection, mercial business. this was because successful promotion was Finally, the function of purchase was also essential to recouping investments in pro- under large-scale centralized control. Access to duction and dissemination. It was also due to retail channels was economically tied to the

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dissemination and promotion functions. Few The story of the copyright industry was— retailers of copyrighted content will stock during the period prior to consumer repro- material that is hard to obtain because of sup- duction technologies and the rise of the ply chain difficulties or that is going to linger Internet—a familiar one for all who had read on the shelves as a result of a lack of promo- Adam Smith on specialization51 or Ronald tional budgets. With the exceptions of a few Coase on the nature of the firm.52 For various small do-it-yourselfers—such as the Grateful reasons too arcane to investigate here, large Dead, who sold content and merchandise at firms are generally thought to be better than their concerts—the vast majority of content individuals at absorbing risk, planning strat- was sold and purchased through centralized egy, and coordinating markets. It is unsur- channels. prising that copyright’s domain during the The only function that was not clearly in the period prior to 1970 was centralized and con- hands of central actors was use. Traditionally, trolled by discrete copyright industries. use has not been a concern of the copyright industries, beyond attempts to prohibit lending, Decentralization and Revolution reproduction, and subsequent resale, because it As demonstrated above, the functions of has been regarded as passive absorption of the the creative cycle that formerly supported content rather than as further creation. But the centralization have migrated to the edges of use function can replicate the other creative- the system, to the amateurs who create the cycle functions of production, distribution, pro- content and the amateurs who use the con- motion, and even purchase through resale. Use tent. Two issues emerge from this movement can (and often does) extend the chain of com- toward amateurization: (1) why some indus- merce for any given work. The industry has been tries are disproportionately affected by the hostile to this kind of use (for obvious reasons). move toward the amateur-to-amateur envi- Postpurchase activities are not always ronment and (2) whether the rise of the ama- harmful to copyright owners, though. An teur-to-amateur model is inevitably a amusing example of this is found in Reefer destructive force for those industries. Madness, Eric Schlosser’s history of the drug With all the attention paid to the exchange and pornography industries.49 He tells the of copyrighted music on the Internet, it is too story of the dissemination of Deep Throat, one easy to forget that, in terms of net transfers of of the earliest successful pornographic movies. material protected by copyright, the peer-to- In an effort to “get a piece of the porno,”50 var- peer transfer of music files is really an exceed- ious small-time hoodlums duplicated the ingly small fraction of Internet traffic today. movie, at a time when celluloid film was the By far the prevalent exchanges are copies being only reproduction format available. They then made of texts, images, and computer pro- distributed the unauthorized prints to various grams. The World Wide Web is constructed pornographic theaters on the assumption from those components, and each time a web- that the owners of the copyright would not page loads, a transfer of material protected by sue for infringement because of the dubious copyright law has occurred. However, practi- The functions of legality of pornographic films at the time. cally all webpages are provided by the copy- However, representatives of the owners simply right holder with the express intention that the creative cycle showed up at theaters showing the film and the material be copied by others on the net- that formerly demanded a 50-50 cut of the take. According work, which makes lawsuits over copying supported to Schlosser, few theater owners refused. In an unlikely. unanticipated manner, unauthorized activi- The problem, originally with Napster and centralization ties actually assisted the copyright owners in now with other peer-to-peer services, is not have migrated to avoiding promotion, production, and distrib- that legions of downloaders have less respect ution costs they would otherwise have had to for musical copyrights than for other copy- the edges of the bear. rights. Rather, the centrifugal pressures system.

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The music described above disproportionately affect Although compression and file-sharing industry was the music because of the way it is disseminated software certainly played their part in bringing and consumed. digital music to the front lines of the copy- first content Twenty years ago, one might have surmised right wars, they were really the last tiny links in industry to suffer that the part of the copyright industry most a more important chain. The after-markets in the shock waves vulnerable to erosion by unauthorized net- MP3 files could never have existed if file shar- worked digital distribution would be books, ing via MP3s had not been remarkably easy— of copyright not music. Even in the 1980s, a 200-page pop- especially given that the people fueling the decentralization, ular paperback novel could easily have fit on market receive no remuneration and bear the one of the floppy diskettes that were widely risk of lawsuits. The answer to “Why music?” but it will not be available. It did not happen then, and even is that the technologies for the exploitation of the last. today peer-to-peer markets for Harry Potter music were already integrated into personal books are almost nonexistent. In the 1980s the computers by the 1990s, and the format of thought that popular music would be the van- music via computer provided the user with guard content in digital copyright discussions something roughly equivalent to the experi- would have seemed ludicrous—the personal ence of music in the prior formats. computers of that time generally had sound In general, technological advances will systems reminiscent of R2D2’s dialect in the increase decentralized amateur activity like file Star Wars films. Yet today, the piracy of digital sharing over the long term—the music indus- music is so widespread that some commenta- try was the first content industry to suffer the tors suggest that the music industry is dead. shock waves of copyright decentralization, but Why is the recording industry waging a it will not be the last. Perhaps at some point public relations war over copyright while the chore of creating a digital copy of a Harry Harry Potter books fly off bookstore shelves Potter book will be substantially lessened by in hardcover editions? Why is it that some advances in scanning devices and optical char- content industries are so affected by decen- acter recognition. Perhaps habituation of the tralization and others are not? public to reading from tablet computers or There are some obvious differences between the availability of screens that mimic the look various content industries that lead to differ- and feel of paper will give users the experience ences in the effects of the trend toward decen- of reading from a book. And perhaps new tralization and amateurization. The major compression schemes, faster broadband con- determining factor seems to be whether the nections, and decryption software will make content is available, and may be used, in a native the often-reported incidents of peer-to-peer digital format. movie sharing something more than a bogey- Contrast musical recordings and books. man that appears very often in the press but Even though the text of a work of fiction very rarely in the average home. Certainly the could have fit on a floppy disk in the 1980s, increasingly widespread use of more powerful books have never been widely distributed in digital cameras, scanners, and phone-cameras digital versions that a personal computer will increase unauthorized copyright after- could interpret. The sale of music on compact markets for images. discs (beginning in the mid-1980s), on the It is likely that the movie industry will other hand, combined with the widespread eventually face the same issues faced by the inclusion of compact disc drives on computers music industry. Movies are released today in (beginning in the mid-1990s) effectively sealed digital format on DVDs. This means that the fate of the music industry. Today’s file- users can get the same experience from a sharing programs like Kazaa and Morpheus copy procured online as from an original are essentially just the back-formations of the DVD. Once network bandwidth and disk choice of the compact disc as a distribution storage capacity catch up, the movie industry mechanism. will follow the music industry into a spiral of

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copyright infringement actions, finger-point- smoothly. Though the industry as structured ing, and recriminations. Which brings us to now may falter, large firms may no longer be the question of whether this is a death spiral. needed to create extraordinarily detailed, Is decentralization necessarily a destructive complicated, rich, and formerly expensive force for the content industries? works (like blockbuster films). The discussion above draws attention to Open-source software—like Linux or MySQL two, seemingly inconsistent, notions. Decen- —provides the model for distributed production tralization seems to provide greater opportu- of complex creative objects.53 Microsoft spends nities for creativity, yet an entire creative hundreds of millions of dollars producing an industry, the music industry, is supposedly operating system, yet open-source methods faced with wholesale evisceration as a conse- mean that a superior operating system can be quence of applying decentralized functions to built by amateurs collaborating around the music. At first these two positions don’t seem world. There are, by now, a sufficient number of to be reconcilable. How could creativity flour- examples of this type of open-source creativity— ish but the creative industry founder? in areas including software, newspapers, and Our suggestion is this: When, as is true commentary—to allow us to conclude that this today, valuable content can be created for type of organization can supplant the firm in the decreasing costs, decentralization of the func- production of complex creative objects. That is The erosion of tions in the creative cycle will lead to a much not to say that the firm is necessarily dead; rather, the power of the greater proliferation of expressive content a new form of social and community organiza- centralized without great participation by copyright- tion can produce content that once was the holding firms. The erosion of the power of the province solely of the centralized, heavily capital- copyright firm centralized copyright firm heralds the rise of ized industries. heralds the rise of the power of the decentralized copyright ama- Indeed, the future may hold an “open- the power of the teur. source blockbuster movie”—though, of course, It is often said that everyone has a book in we can’t be sure that it will look anything like decentralized him: decentralized content functions mean blockbusters as we currently know them. What copyright that everyone can now write the book inside we can say, though, is that decentralized and him, produce it, distribute it, and have it select- amateur collaborative processes may produce amateur. ed and used by that tiny subset of the popula- new, innovative artistic forms and works with tion that would really love it. The majority of social and economic value that is hard to pre- writers may well be better off under this model, dict or evaluate beforehand. What we urge is and the majority of readers may well be better that such projects be allowed and encouraged off in this model. Those who benefited from to grow, not strangled in the crib because they the centralized system envisioned by copyright conflict with the traditional role of copyright may be worse off, but if society is better off, law in the creative process. does the erosion of copyright’s value matter so The firms and industries that rely on copy- much? right are not ordained by God or fate. They Of course, there are some downsides. The exist because of historically contingent facts story is somewhat more complicated when it that required centralized control of the func- comes to large-scale creative endeavor. With tions that move creative material from creator the average cost of a studio movie now in the to user. William Gibson charts that historical tens of millions of dollars, and some reaching contingency in discussing the rise and fall of hundreds of millions, we might think that musicians and the music industry: decentralization will spell the end of all Prior to the technology of audio recording, moviemaking, since file sharing will destroy there was relatively little one could do to make the movie industry’s revenue model and pre- serious money with music. Musicians could vent massive investments in blockbuster perform for money, and the printing press had films. But perhaps that does not follow so given rise to an industry in sheet music, but

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great fame, and wealth, tended to be a matter It is not surprising that people within the of patronage. The medium of the commercial copyright industries see the impending decline audio recording changed that and created an of their business models with some apprehen- industry predicated on an inherent technolog- sion. Imperial Romans saw the disappearance ical monopoly of the means of production. of their empire as the end of civilization. They Ordinary citizens could neither make nor could not conceive that another, more interest- manufacture audio recordings. That monop- ing order might rise in its place. But instead of oly has now ended. The window, then, in empire we saw empires. Instead of Rome we which one could become the Beatles and occu- saw the emergence of many different cultures, py that sort of market position, is seen to have peoples, and states. A similar process is hap- been technologically determined.54 pening in the creative content cycle. Instead of The content industries do not much mat- a unitary system called copyright governing ter in and of themselves (except, of course, to our information practices, we are seeing the those who work in them). What matters is emergence of a distributed, messy agglomera- the social benefit of having creative content tion of opportunities in content creation, pro- available to our society. Losing the copyright duction, distribution, and so on. industries would be terrible if, and only if, It is important to see that the amateur-to- they were the sole means of generating social- amateur model that new technologies have ly valuable creative content. thrust upon us will not be thwarted by copy- But the amateur-to-amateur trend now right law. With time, technology will inevitably provides individuals with the opportunity to dictate that copyright’s empire—the central, all- meet society’s needs for creative expression as encompassing structure for development of well as the previously unknown pleasures of creative content—will decline and may well fall. being petty agents in the broader creative cul- New tribes of amateurs will emerge and become ture. Society benefits greatly from this expand- significant forces in cultural content, occupy- ed content generation and from the democra- ing various places on the old chain links of the tization of media and communications that it creative cycle and displacing their predecessors. enables. The coming years promise individu- This transformation does not signal the end als and collaborative groups even greater of culture. In fact, it does not even signal the end opportunities to create popular content. As a of copyright. But it does suggest that, just as the result, society as a whole is likely to be better Roman Empire became modern-day Europe, off. We should allow and promote decentral- copyright might be best transformed into some- ization of all functions in the creative cycle. thing else. It should, chiefly, come to be a more democratic system. It should reflect contemporary reality by becoming a law that protects lim- Conclusion ited rights in particular valuable forms of expression, not a law that acts as a censor. “Rome did not fall. It was transformed.”55 Just as Europe reflects ancient Rome, copy- Rome was once the center of the world. What right will undoubtedly continue to reflect its we think of as the fall of an empire was, Peter imperial heritage in many ways. But it will Just as the Roman Brown reminds us, just the transfer of need to change in important ways as well. Empire became Roman influence into a much different Copyright can no longer claim to be like Rome modern-day world. It is meaningless to ask whether the in the sphere of creative production: all- unitary might of imperial Rome was some- encompassing, all-powerful, all-important. Europe, copyright how inherently superior to the distributed, might be best messy agglomeration of states that emerged transformed into after Rome fell. Some things were better, Notes things were worse. On average, things were 1. See Joseph P. Liu, “Copyright Law’s Theory of something else. just different. the Consumer,” Boston College Law Review 44

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(2003): 402 (identifying this as the “couch pota- Journal of Law & Technology 10 (1996): 42–43. to” understanding of the copyright consumer). 15. See generally James Boyle, “Foucault in Cyberspace: 2. Jane C. Ginsburg, “From Having Copies to Surveillance, Sovereignty, and Hard-wired Censors,” Experiencing Works: The Development of an Access University of Cincinnati Law Review 66 (1997): 177. Right in U.S. Copyright Law,” Journal of the Copyright Society 50 (2003): 113 (describing the diminishing 16. In 2003 a widespread Internet distribution importance of physical “copies” to copyright law). occurred of a videotape of Paris Hilton’s sexual encounter with one Rick Saloman. Saloman him- 3. Pew Internet & American Life Project, Content self marketed the video and even filed a copyright Creation Online, February 29, 2004. registration for it. He sued a defendant in federal court for reproducing the video without his per- 4. For similar formulations describing the same gen- mission. The defendant claimed that Saloman’s eral category of information producers and distribu- copyright registration was invalid because he had tors, see Yochai Benkler, “Freedom in the Commons, failed to list Hilton as a coauthor who participated Towards a Political Economy of Information,” Duke in the authorship of the recording. See “Paris Law Journal 52 (2003):1249 (“non-market”); James Hilton ‘Directed’ Sex Video,” CNN.com, February Boyle, “The Second Enclosure Movement and the 24, 2004, www.cnn.com/2004/SHOWBIZ/02/24/ Construction of the Public Domain,” Law and hilton.sextape.reut/. Contemporary Problems 66 (2003): 45 (“volunteers”); F. Gregory Lastowka, “Free Access and the Future of 17. Jane C. Ginsburg, “How Copyright Got a Bad Copyright,” Rutgers Computer and Technology Law Name for Itself,” Columbia Journal of Law and the Journal 27 (2001): 293 (“altruists”); and Eben Arts 26 (2002): 67 (describing the general response Moglen, “Anarchism Triumphant: Free Software of copyright holders to new technologies as and the Death of Copyright,” First Monday, August 2, “Pavlovian”). 1999, http://moglen.law.columbia.edu/publication s/anarchism.html (describing “Anarchism as a 18. See Liu, p. 410 (describing technology-specific Mode of Production”). lawsuits concerning the Rio MP3 player and MP3.com). 5. See generally Ginsburg, “From Having Copies to Experiencing Works”; and Liu. 19. Pursuant to 17 U.S.C. § 108 and 37 C.F.R. § 201.14, supervised library photocopiers require 6. William Wordsworth, “Lines Composed a Few an elaborate copyright restriction notice. Miles above Tintern Abby,” 1798. 20. 17 U.S.C. § 1201(a). 7. See Bleistein v. Donaldson Lithographing Company, 188 U.S. 239 (1903); see generally Alfred C. Yen, 21. In fact, Google’s search algorithm essentially “Copyright Opinions and Aesthetic Theory,” discriminates against password-protected works Southern California Law Review 71 (1998): 247. because its search engine cannot “see” works for which payment is required, and thus cannot index 8. 499 U.S. 340 (1990). those websites. Google also prioritizes works on the basis of perceived popularity, and inevitably 9. Jessica Litman, “Copyright Noncompliance free-access websites are more popular than web- (Or Why We Can’t Just Say ‘Yes’ to Licensing),” sites that demand payment for access to content. New York University Journal of International Law and Politics 29 (1996): 251. 22. John Perry Barlow, “The Economy of Ideas,” Wired 2, no. 3 (1994), http://www.wired.com/wired/ 10. Lyman Ray Patterson, Copyright in Historical archive/2.03/economy.ideas_pr.html. The essay is Perspective (Nashville, TN: Vanderbilt University full of rhetorical excess and ranges over many argu- Press, 1968), pp. 28–32. ments why the Net will destroy copyright. It includes observations that jurisdictional problems 11. Ibid., p. 145. will be fatal, that information is a “verb not a noun,” and that information is “a relationship not a thing.” 12. 17 U.S.C. §102(a). Much of this is amusing, though the core insight remains, and it was all the more interesting and sur- 13. See generally Joseph Ledoux, Synaptic Self: How prising that it came from a member of the Grateful Our Brains Become Who We Are (New York: Viking Dead: a person who would ordinarily be viewed as Adult, 2003). favoring strong copyright protection as the basis for commercial exploitation of his expression. 14. See generally David Nimmer, “Brains and Other Paraphernalia of the Digital Age,” Harvard 23. See ibid. Mark Nadel has a similar interest in

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articulating and analyzing discrete “stages” of social 33. William Goldman, Adventures in the Screen activities relevant to the copyright process. See Trade (New York: Warner Books, 1989), p. 39. Mark S. Nadel, “The Consumer Product Selection Process in an Internet Age: Obstacles to Maximum 34. Felten explained this on his weblog. See Edward Effectiveness & Policy Options,” Harvard Journal of W. Felten, “Googlocracy in Action,” http://www. Law and Technology 14 (2001): 183. freedom-to-tinker.com/archives/000509.html.

24. Jessica Litman, Digital Copyright (New York: 35. See http://www.phoaks.com//index.html. Prometheus Books, 2001); and Ray Ku, “The Creative Destruction of Copyright: Napster and the 36. The systems are primarily automated, collab- New Economics of Digital Technology,” University orative systems but have human overrides. See of Chicago Law Review 69 (2002): 263. Lisa Guernsey, “Making Intelligence a Bit Less Artificial,” New York Times, May 1, 2003. 25. See, e.g., James Boyle, Shamans, Software, & Spleens: Law and the Construction of the Information Society 37. See Clay Shirky, “The Music Business and the (Cambridge, MA: Harvard University Press, 1996), pp. Big Flip,” http://shirky.com/writings/music_flip. 41, 51, 159–61 (discussing the history of the concept of html (suggesting ways distributed selection might authorship and the construction of self-interest and work in the music industry and its effect on A&R— romantic authorship); Rosemary Coombe, The industry lingo for artists and repertoire). Cultural Life of Intellectual Properties: Authorship, Approp- riation, and the Law (Durham, NC: Duke University 38. http://www.instapundit.com/. Press, 1998), pp. 211–12, 219–20 (examining problems with conception of romantic authorship); and Mark 39. Other examples within the blogosphere include Lemley, “Romantic Authorship and the Rhetoric of Popdex, a website popularity index, http://www. Property,” Texas Law Review 75 (1997): 873 (same). popdex.com/; Blogdex, an index of the “most con- tagious” blogs and memes, http://www.blogdex. 26. See F. Jay Dougherty, “Not a Spike Lee Joint? com/; and Daypop, a blog-based news and current Issues in the Authorship of Motion Pictures under events service, http://www.daypop.com/. U.S. Copyright Law,” University of California at Los Angeles Law Review 49 (2001): 225. 40. See Yochai Benkler, “Coase’s Penguin, Or, Linux and the Nature of the Firm,” Yale Law Journal 27. Barlow. 112 (2002): 394–95.

28. “Gary Jules Remains at Number One,” BBC News, 41. See Trigger Street Productions website, http:// December 28, 2003, http://news.bbc.co.uk/go www.triggerstreet.com/gbase/Trigger/Homepage; /pr/fr/-/1/hi/entertainment/music/335 2667.stm and America Zoetrope and Virtual Studio, http:// www.zoetrope.com/about.cgi. 29. Jason Silverman, “Here’s the Price of Fame: $218.32,” Wired News, January 20 2004, http:// 42. See F. Gregory Lastowka, “Search Engines, www.wired.com/news/digiwood/0,1412,61970,00. HTML, and Trademarks: What’s the Meta For?” html?tw=wn_tophead_2. Virginia Law Review 86 (2000): 835–84 (discussing strategic manipulation of search engine rankings). 30. See Steven Levy, Insanely Great: The Life and Times of Macintosh, the Computer That Changed Everything (New 43. http://www.dmoz.org/. York: Viking, 2000), pp. 210–11; and Wikipedia, “Word Processor,” http://en.wikipedia.org/wiki/ 44. Of course, from the perspective of the central- Word_processor. ized players in the copyright industries, these are “unauthorized reproduction” technologies. 31. See, e.g., John Seabrook, “The Money Note,” New Yorker, July 7, 2004, p. 42. (examining the 45. Jessica Litman, “War Stories,” Cardozo Arts & business model of the music industry and the bet- Entertainment Law Journal 20 (2002): 337. ting strategy on singers and music styles). 46. Boyle, “The Second Enclosure Movement,” p. 40. 32. “I asked Flom [an A&R executive in the music industry] whether he thought hits might become 47. The acronym RSS is said to stand for “Really less important to the record business. ‘That ain’t Simple Syndication” or sometimes “RDF Site gonna happen,’ he said. ‘If anything, hits can be Summary.” See http://blogs.law.harvard.edu/tech/ more important than ever, because you can make rss or http://www.answerbag.com/q_view.php/772. stars on a global scale now. . . . [T]he day we stop seeing hits is the day people stop buying records.’” 48. Liu, pp. 406–21 (discussing more active approach- Seabrook, pp. 42, 46. es to the theory of consumer “use”).

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49. Eric Schlosser, Reefer Madness: Sex, Drugs, and upwards of 48,000 pins in a day.” Adam Smith, An Cheap Labor in the American Black Market (New Inquiry into the Nature and Causes of the Wealth of York: Houghton Mifflin, 2003). Nations, 1776.

50. Ibid., p. 137. 52. Ronald H. Coase, “The Nature of the Firm,” Economica 4 (1937): 386. 51. “[A] workman not educated to this business (which the division of labor has rendered a distinct 53. See Benkler, “Coase’s Penguin.” trade), nor acquainted with the use of the machinery employed in it (to the invention of which the 54. William Gibson, Address to Directors Guild of same division of labor has probably given occa- America “Digital Day”, Los Angeles, May 17, 2003, sion), could scarce . . . make one pin in a day, and http://www.williamgibsonbooks.com/archive certainly could not make twenty. . . . I have seen a /2003_05_01_archive.asp#200322370. small manufactory of this kind where 10 men only were employed. . . . But though they were very poor, 55. Peter Brown, The Cult of the Saints: Its Rise and and therefore but indifferently accommodated Function in Latin Christianity (Chicago: University with the necessary machinery, they could . . . make of Chicago Press, 1981), p. 36.

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OTHER STUDIES IN THE POLICY ANALYSIS SERIES

566. Two Normal Countries: Rethinking the U.S.-Japan Strategic Relationship by Christopher Preble (April 18, 2006)

565. Individual Mandates for Health Insurance: Slippery Slope to National Health Care by Michael Tanner (April 5, 2006)

564. Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act by Timothy B. Lee (March 21, 2006)

563. Against the New Paternalism: Internalities and the Economics of Self- Control by Glen Whitman (February 22, 2006)

562. KidSave: Real Problem, Wrong Solution by Jagadeesh Gokhale and Michael Tanner

561. Economic Amnesia: The Case against Oil Price Controls and Windfall Profit Taxes by Jerry Taylor and Peter Van Doren (January 12, 2006)

560. Failed States and Flawed Logic: The Case against a Standing Nation- Building Office by Justin Logan and Christopher Preble (January 11, 2006)

559. A Desire Named Streetcar: How Federal Subsidies Encourage Wasteful Local Transit Systems by Randal O’Toole (January 5, 2006)

558. The Birth of the Property Rights Movement by Steven J. Eagle (December 15, 2005)

557. Trade Liberalization and Poverty Reduction in Sub-Saharan Africa by Marian L. Tupy (December 6, 2005)

556. Avoiding Medicare’s Pharmaceutical Trap by Doug Bandow (November 30, 2005)

555. The Case against the Strategic Petroleum Reserve by Jerry Taylor and Peter Van Doren (November 21, 2005)

554. The Triumph of India’s Market Reforms: The Record of the 1980s and 1990s by Arvind Panagariya (November 7, 2005)

553. U.S.-China Relations in the Wake of CNOOC by James A. Dorn (November 2, 2005)

552. Don’t Resurrect the Law of the Sea Treaty by Doug Bandow (October 13, 2005)

551. Saving Money and Improving Education: How School Choice Can Help States Reduce Education Costs by David Salisbury (October 4, 2005)

550. The Personal Lockbox: A First Step on the Road to Social Security Reform by Michael Tanner (September 13, 2005) 326109 PA567 1st Class.qxp 4/7/2006 12:01 PM Page 27

549. Aging America’s Achilles’ Heel: Medicaid Long-Term Care by Stephen A. Moses (September 1, 2005)

548. Medicaid’s Unseen Costs by Michael F. Cannon (August 18, 2005)

547. Uncompetitive Elections and the American Political System by Patrick Basham and Dennis Polhill (June 30, 2005)

546. Controlling Unconstitutional Class Actions: A Blueprint for Future Lawsuit Reform by Mark Moller (June 30, 2005)

545. Treating Doctors as Drug Dealers: The DEA’s War on Prescription Painkillers by Ronald T. Libby (June 6, 2005)

544. No Child Left Behind: The Dangers of Centralized Education Policy by Lawrence A. Uzzell (May 31, 2005)

543. The Grand Old Spending Party: How Republicans Became Big Spenders by Stephen Slivinski (May 3, 2005)

542. Corruption in the Public Schools: The Market Is the Answer by Neal McCluskey (April 14, 2005)

541. Flying the Unfriendly Skies: Defending against the Threat of Shoulder- Fired Missiles by Chalres V. Peña (April 19, 2005)

540. The Affirmative Action Myth by Marie Gryphon (April 6, 2005)

539. $400 Billion Defense Budget Unnecessary to Fight War on Terrorism by Charles V. Peña (March 28, 2005)

538. Liberating the Roads: Reforming U.S. Highway Policy by Gabriel Roth (March 17, 2005)

537. Fiscal Policy Report Card on America’s Governors: 2004 by Stephen Moore and Stephen Slivinski (March 1, 2005)

536. Options for Tax Reform by Chris Edwards (February 24, 2005)

535. Robin Hood in Reverse: The Case against Economic Development Takings by Ilya Somin (February 22, 2005)

534. Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems by Michael A. Einhorn and Bill Rosenblatt (February 17, 2005)

533. Who Killed Telecom? Why the Official Story Is Wrong by Lawrence Gasman (February 7, 2005)

532. Health Care in a Free Society: Rebutting the Myths of National Health Insurance by John C. Goodman (January 27, 2005) 326109 PA567 1st Class.qxp 4/7/2006 12:01 PM Page 28

531. Making College More Expensive: The Unintended Consequences of Federal Tuition Aid by Gary Wolfram (January 25, 2005)

530. Rethinking Electricity Restructuring by Peter Van Doren and Jerry Taylor (November 30, 2004)

529. Implementing Welfare Reform: A State Report Card by Jenifer Zeigler (October 19, 2004)

528. Fannie Mae, Freddie Mac, and Housing Finance: Why True Privatization Is Good Public Policy by Lawrence J. White (October 7, 2004)

527. Health Care Regulation: A $169 Billion Hidden Tax by Christopher J. Conover (October 4, 2004)

526. Iraq’s Odious Debts by Patricia Adams (September 28, 2004)

525. When Ignorance Isn’t Bliss: How Political Ignorance Threatens Democracy by Ilya Somin (September 22, 2004)

524. Three Myths about Voter Turnout in the United States by John Samples (September 14, 2004)

523. How to Reduce the Cost of Federal Pension Insurance by Richard A. Ippolito (August 24, 2004)

522. Budget Reforms to Solve New York City’s High-Tax Crisis by Raymond J. Keating (August 17, 2004)

521. Drug Reimportation: The Free Market Solution by Roger Pilon (August 4, 2004)

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