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Intellectual "Property" in the Digital Age
Frank Field
Links Home : Copyright : Case Law : Eldred v. Ashcroft

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Challenge to the Sonny Bono Act - is there a limit to the length of copyright terms in the Constitution?

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· 7-2 Decision (12/12)

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-REC Eldred v. Ashcroft WWW site
[3 hits, 2 votes, Average Rating 0.00] [Added: 6th Aug 2002]

News and other postings. The place to go for the latest poop.
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-REC Eldred v. Ashcroft: A Primer
[6 hits, 0 votes, Average Rating 0] [Added: 23rd Oct 2002]

Washtington Post; October 9, 2002. Excellent resource.
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-REC *Disney's Copyright Conquest: Mouse Trap
[5 hits, 0 votes, Average Rating 0] [Added: 22nd Oct 2002]

The New Republic; Jeffrey Rosen; October 22, 2002. Lawmeme discussion

But although they recognized it as a bad law, Chief Justice William Rehnquist and his colleagues expressed skepticism about the constitutional basis for striking down this flamboyant piece of special interest legislation. "We've said there was a general grant" of power to Congress "and that Congress was free to run with it in many respects," Rehnquist told Lessig in an uncharacteristic burst of deference to Congress. In fact, the constitutional arguments against the CTEA are the same ones Rehnquist has made the centerpiece of his judicial legacy: that the Constitution grants Congress limited powers, which may only be exercised for carefully enumerated purposes. Seen in this light, the case for striking down the CTEA is actually stronger than the case for striking down the Violence Against Women Act, the Brady Bill, the Gun-Free School Zones Act, and other federal laws that Rehnquist and his conservative colleagues have held exceed Congress's enumerated powers. If the Court upholds the CTEA while continuing to strike down far less objectionable statutes in the name of limited federal government, Rehnquist's crusade to limit Congress's power will be clearly revealed to be based not on devotion to constitutional text and history but on the political and economic interests that a given law serves.

...Decades from now Rehnquist and his conservative colleagues will be remembered above all for their decisions restricting Congress's power. These decisions have been legitimately criticized for being based more on an abstract devotion to states' rights than on the text and history of the Constitution. Now the Court has before it a law that is constitutionally offensive on every level: It clashes with the explicit limits on Congress's power set out in the text and original understanding of the copyright clause, it represents a naked transfer of wealth to a handful of greedy heirs of pop-culture icons from the '20s, and it threatens to constrict public domain on the Internet for generations to come. If the Court sets limits on Congress's power in the context of commerce but not in the context of copyright, the only difference would be one of political perspective. If there ever were a case in which it makes sense to hope that the conservatives are true to their purported strict constructionist principles, this is it.

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-REC Case puts copyright in public spotlight
[4 hits, 1 votes, Average Rating 10.00] [Added: 23rd Oct 2002]

Globe and Mail; Brian Kelcey; October 10, 2002. Local PDF - this is too good a text to lose.

At first glance, this is dull case law. But when Eldred v. Ashcroft reached the United States Supreme Court Wednesday, it had the atmosphere of a Star Wars premiere. Young software programmers in crisp suits camped out before sunrise to get into the gallery, beating a lineup that wrapped around a street corner hours before the hearing began. Media access was on a rare "reservations-only" system, with reporters crammed behind curtains and pillars to fit them in. When an old man in a bow tie arrived at a side door, he was asked if he was there for the Eldred case. His reply: "who isn't?"

Intellectual property law is not supposed to be this popular. But thanks to Eldred v. Ashcroft, the movement to limit or curtail copyrights and patents has moved out from the fringe and into the mainstream.

...On its constitutional merits, Mr. Lessig may lose Eldred v. Ashcroft. But, measured as "political action" of the sort that Mr. Broton is looking for, Mr. Lessig has already won more than the Court will ever give him. While copyright-dependent industries spend their time lobbying lawmakers and filing lawsuits, a Stanford Law professor is outflanking them by turning intellectual property consumers and producers into a court of public opinion.

The aftermath of Wednesday's hearing underlined the contrast. A crowd of reporters spent 10 minutes interviewing Mr. Lessig and Mr. Eldred. Then, one reporter spoke out in frustration, wondering why she couldn't find anyone to speak in favour of the CTEA. The media did get someone on the record - but only because Mr. Lessig was kind enough to point to Congresswoman Bono, standing silently among the spectators.

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-REC Copyright in the Balance: LJ Talks with Lawrence Lessig
[3 hits, 0 votes, Average Rating 0] [Added: 16th Jul 2002]

The Library Journal; Andrew Richard Albanese; July 15, 2002.

In a promising sign for libraries and the public, the U.S. Supreme Court agreed in February 2001 to review whether Congress overstepped its bounds in 1998 when it passed the Sonny Bono Copyright Term Extension Act, extending copyright terms for another 20 years. Lessig will argue the case, Eldred v. Ashcroft, on behalf of a group of online publishers that offer digital editions of public domain books for free over the Internet. Two lower courts already ruled against the plaintiffs, but hopes are high in the library community that the third time could be the charm.

...Yet the fight against term extensions is just one battle in a much broader copyright war being waged against the public interest and libraries, which are often its representatives. LJ recently caught up with a busy Lessig to talk about Eldred, copyright, and other challenges threatening the work of libraries.

From The Shifted Librarian
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-REC Eldred v. Ashcroft - DC Circuit ruling
[1 hits, 0 votes, Average Rating 0] [Added: 7th May 2002]

Law.com; Ginsburg, Circuit Judge; July 13, 2001. 99-5430
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-REC Glitterati vs. Geeks
[2 hits, 0 votes, Average Rating 0] [Added: 11th Oct 2002]

Newsweek; Steven Levy; October 14, 2002. Since we know that MSNBC will eventually drop this, heres' the local PDF
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-REC H'wood pleading for long copyright
[3 hits, 0 votes, Average Rating 0] [Added: 6th Aug 2002]

The HollyWood Reporter; Brooks Boliek; August 6, 2002. So, here's what the other side thinks:

In February, the Supreme Court shocked the copyright industries when it agreed to hear a challenge to the Sonny Bono Copyright Term Extension Act, which extended the amount of time copyright holders retain rights. The copyright industries fought hard to get the term extended, arguing that they were losing money to European nations that have similar laws.

A decision by the court could set limits on Congress' ability to decide copyright terms and could even roll back the current term. The court is scheduled to hear the case Oct. 9.

In the "friend-of-the-court" brief filed Tuesday with the high court by the MPAA, the studios contended that the law is consistent with the Constitution and 200 years of copyright law.

"The Constitution is plain and clear that Congress has the authority to set copyright terms," MPAA president and CEO Jack Valenti said of the organization's filing. "The opponents of (CTEA) failed to make an impression on Congress during the original debate on this law. Having gotten nowhere with Congress, they have now dressed up their policy arguments as constitutional ones. The CTEA keeps creators and copyright owners in this nation on even footing with their counterparts in other parts of the world and provides incentives for the creation of new works and the continued preservation and restoration of older ones."

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-REC Law Profs to USSC: Copyright Law Subject to 1st Amend Review
[2 hits, 0 votes, Average Rating 0] [Added: 20th May 2002]

LawMeme; Ernets Miller; May 20, 2002. "Prominent constitutional law professors Jack Balkin (Yale), Yochai Benkler (NYU), Burt Neuborne (NYU), Robert Post (Boalt Hall), and Jed Rubenfeld (Yale) have filed an Amicus Curiae brief in the case of Eldred v. Ashcroft, which will be before the US Supreme Court. Read their brief (Brief of Jack Balkin, et. al., as Amici Curiae in Support of the Petitioners [PDF] ). Additional Amici and the official plaintiff's brief can be found on the official LEGAL DOCUMENTS webpage. Two excellent mock briefs (one each for petitioners and defendant) can be found on this LawMeme article concerning Yale's moot court finals (Yale Law Moot Court Verdict - Eldred Wins!)." Lots of good links. UPDATE: Slashdot discussion, with more links: Eldred Attracts Heavyweight Supporters
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-REC Lawrence Lessig's Supreme Showdown
[9 hits, 1 votes, Average Rating 7.00] [Added: 18th Sep 2002]

Wired; Steven Levy; October 2002.

The Great Liberator Lawrence Lessig helped mount the case against Microsoft. He wrote the book on creative rights in the digital age. Now the cyberlaw star is about to tell the Supreme Court to smash apart the copyright machine.

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-REC Loyola of Los Angeles Law Review Conference on Eldred v. Ashcroft
[4 hits, 1 votes, Average Rating 1.00] [Added: 6th Aug 2002]

Loyola of Los Angeles Law Review; several authors. Needs updating over time.
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-REC Open Law's Eldred v. Ashcroft Site
[4 hits, 0 votes, Average Rating 0] [Added: 20th Feb 2002]

Open Law - compedium of materials on the case
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-REC Reply Brief: Eldred v. Ashcroft
[3 hits, 0 votes, Average Rating 0] [Added: 5th Sep 2002]

Openlaw.org; September 5, 2002.
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-REC Split IP Bar Feuds Over Copyright Law
[2 hits, 0 votes, Average Rating 0] [Added: 7th May 2002]

Law.com; Brenda Sandburg; May 7, 2002. " The showdown over the amicus brief represents the growing divide between the two sides of the IP bar. On one side are those who favor strong protection of intellectual property rights. On the other are those who say IP owners are unjustly trying to extend their rights at the expense of the public."
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-REC Supreme Court Accepts Eldred Case
[1 hits, 0 votes, Average Rating 0] [Added: 19th Feb 2002]

Slashdot.org; February 19, 2002. Certiori given to Eldred v. Ashcroft, challenging the latest extension of copyright. Might be a chance for the Supremes to make a sweeping change, but they generally never do sweeping things without a huge reason; and one has not been made apparent to them yet....
There's a Salon article, too: Supreme Court to decide on Web copyrights; Gina Holland
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-REC The Future of Profit: The Fate of the Commons in the IP World, Part II
[5 hits, 0 votes, Average Rating 0] [Added: 25th Jun 2002]

Copyfight; Donna Wentworth; June 24, 2002. A look at the interleaving of private and public interests in the Eldred case, looking a some amicus curiae briefs
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-REC THE MOUSE THAT ATE THE PUBLIC DOMAIN: Disney, The Copyright Term Extension Act, And eldred V. Ashcr
[24 hits, 1 votes, Average Rating 10.00] [Added: 5th Mar 2002]

Findlaw's Writ; Chris Sprigman; March 5, 2002. Full title: THE MOUSE THAT ATE THE PUBLIC DOMAIN: Disney, The Copyright Term Extension Act, And Eldred V. Ashcroft - an excellent article summarizing the case law to date and the issues surrounding the case. Well worth a read!! A Slashdot discussion is here:The Mouse that Ate the Public Domain
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-A Bookworm's Battle
[5 hits, 0 votes, Average Rating 0] [Added: 22nd Oct 2002]

The Chronicle of Higher Education; Volume 49, Issue 9, Page A35; Andrea Foster; October 25, 2002.

Harvard University's Berkman Center for Internet and Society, which spearheaded the lawsuit, approached Mr. Eldred after The New York Times ran an article in January 1999 about his struggle with copyright law. Jonathan L. Zittrain, a Harvard law professor who has helped craft the legal challenge -- along with the center's Lawrence Lessig and Charles R. Nesson -- says Mr. Eldred is a striking example of how one person's efforts to advance scholarship and the public domain have been stifled by Congress's kowtowing to entertainment interests.

"You basically couldn't ask central casting for a better face," Mr. Zittrain says. "There's none of the sort of ego that one stereotypically encounters with people on a mission."

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-All Roads lead to Rome
[2 hits, 0 votes, Average Rating 0] [Added: 18th Sep 2002]

FT Online; Richard Epstein; September 4, 2002. A look at Eldred and the "rational basis" versus "intermediate basis" decisions on IP.
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-An Abuse of Copyright
[10 hits, 0 votes, Average Rating 0] [Added: 14th Oct 2002]

New York Times; Opinion; October 11, 2002.

Copyright law requires a balancing of the interest of copyright holders against the rights of everyone else. Artists are entitled despite the arguments of Napster and its defenders to a property interest in their work for a reasonable period of time. But the public also has an interest in seeing that copyrights eventually lapse, and that creative work enters the public domain with no need to pay royalties. Contemporary artists are then free to borrow from these older works, a creative tradition that dates back to the ancients.

... There is clearly a correlation between copyright and creativity. No one but a blockhead writes except for money, Samuel Johnson said, and those who subscribe to that view would be unlikely to write if, the minute they completed their work, others could copy it with impunity. But it is a highly reluctant artist and one with extraordinary concern for his heirs who will not create unless his work is protected for a full 70 years after his death.

The purpose of the 1998 Congressional extension was not protecting artists, but enriching media companies that hold property rights in their creations, virtually in perpetuity. The founders did not envision copyright being put to this use, and the Supreme Court should not allow it.

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-An Uphill Battle in Copyright Case
[4 hits, 0 votes, Average Rating 0] [Added: 14th Oct 2002]

New York Times; Amy Harmon; October 14, 2002.

"My sense is that the case could be in trouble," Charles Nesson, the co-director of the Berkman Center for Internet & Society at Harvard Law School, said afterward at a lunch reception. "They saw the problem, but they didn't necessarily buy our solution."

... As guests munched on chicken Caesar salad and sesame noodles, Lawrence Lessig, the Stanford law professor who argued the case, reminded them that what mattered most was that a public debate had begun about why the public domain matters.

... But there was also a growing acknowledgment among the loose coalition of nonprofit groups, lawyers, Internet publishers and librarians that most people still do not quite understand the relevance of copyrights to their lives.

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-Books Online, No US Access
[5 hits, 0 votes, Average Rating 0] [Added: 23rd Oct 2002]

Books Online Lessig Blog cite

The following books are by authors that have died more than 50 years ago, which places them in the public domain in many countries, particularly those outside the US and Europe. However, they remain copyrighted under United States law, where works copyrighted in 1923 or later can be protected for up to 95 years after publication.

Do NOT download or read these books online if you or your system are in the United States or in another country where copyright protections can extend more than 50 years past an author's death. The author's estate and publishers still retain their legal and moral rights to oversee the work in those countries. (Also, in many European countries, copyrights have recently been extended to last 70 years past the author's death.) Follow this link for more details on copyrights laws of various countries.

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-Case Could Shift Balance in Debate on Public Domain
[1 hits, 0 votes, Average Rating 0] [Added: 20th Feb 2002]

New York Times; Amy Harmon; February 20, 2002.
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-Freeing Mickey Mouse
[6 hits, 0 votes, Average Rating 0] [Added: 10th Nov 2002]

Technology Review; Seth Shulman; November 2002.
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-High Court Hears Copyright Case
[1 hits, 0 votes, Average Rating 0] [Added: 20th Feb 2002]

Wired.com; Associated Press; February 19, 2002
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-Justices Hear Arguments in Challenge to Copyrights
[3 hits, 0 votes, Average Rating 0] [Added: 14th Oct 2002]

New York Times

; Linda Greenhouse; October 9, 2002.

No member of the Supreme Court had a good word today for the 1998 law that added 20 years to all existing copyrights. But that did not make the job any easier for Professor Lawrence Lessig of Stanford Law School, who faced an uphill battle to persuade the justices that the extension, which Congress adopted at the behest of the Walt Disney Company and other powerful corporate copyright holders, was not only bad policy but unconstitutional.

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-Justices to Review Copyright Extension
[12 hits, 0 votes, Average Rating 0] [Added: 20th Feb 2002]

New York Times; Linda Greenhouse; February 20, 2002.
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-Lessig on the Future of the Public Domain
[1 hits, 0 votes, Average Rating 0] [Added: 8th Apr 2002]

O'Reilly Network; Richard Koman; April 2, 2002. A discussion of the Eldred case. Slashdot discussion: Lessig on the Future of the Public Domain
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-Little Copyright Case That Could?
[2 hits, 0 votes, Average Rating 0] [Added: 1st Aug 2002]

Law.com; Michael P. Hammond Jr., The Connecticut Law Tribune; August 1, 2002.

In what may turn out to be one of the most far-reaching copyright cases to reach the high court in decades, the U.S. Supreme Court will hear arguments this fall about whether there is any limitation on Congress' power to retrospectively increase the term of copyright protection.

...Other plaintiffs included historians, a church choir leader and other publishers of public domain materials who use, copy, reprint, perform, enhance, restore or sell works of music, art, film or literature that are in the public domain. Collectively, they seek a declaratory ruling that the Copyright Term Extension Act is unconstitutional. In their complaint, they allege that works they were preparing to use were created in 1923 and that, but for the passage of the Copyright Term Extension Act, these works could have been legally copied, distributed or performed on and after Jan. 1, 1999. Central to the plaintiffs' argument is that retrospective extensions of copyrights do not encourage artists to create new works. In a recent interview, Lessig said that the 1998 act would not inspire Gershwin, for instance, to write new songs. The 1998 act, according to the plaintiffs, favors large corporate copyright owners at the expense of the public's right to use the works for free.

...Eldred v. Ashcroft has the potential to generate a broad ruling that will change the scope of copyright law and the public domain for the Internet age. A decision for the plaintiffs will certainly hasten the entry of older copyrights into the public domain. But even if the case affirms traditional copyright principles or breathes new life into the idea/expression dichotomy and "fair use" principles, the Court may seek to further its recent agenda concerning limits on congressional power. In the meantime, Eldred provides the backdrop for discussions about the continuing role of copyrights to both support and limit the First Amendment's guarantee of free expression.

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-Making My Own Music
[5 hits, 0 votes, Average Rating 0] [Added: 14th Oct 2002]

New York Times; Kevin Kelley; October 12, 2002.

The passion of fans is unstoppable and technology will make it only more so. Listeners, readers and watchers now have the means to do chores that companies themselves used to have to do. Yet instead of seeing this new force as a positive development, corporate copyright holders view it as something that must be quashed. While reformatting an old film is more trouble than slipping a CD into a personal computer, as bandwidth and storage continue to drop in price, more movie fans will have the means to convert old films. Given the benefits of digitized films, there is little question that film buffs, powered only by passion, would rush to convert the 500 to 1,000 films that fall out of copyright each year if the copyright period is not extended.

All that is keeping fans from this work is the steady erosion of the public domain by corporate copyright holders. Copyright extension serves only to keep everyone fans and corporations away from old masterpieces. If the Supreme Court upholds the current law, some old works of uncertain ownership, which would normally be allowed to come into the public domain, will now be locked up for another couple of decades. For some films on old stock, this could be their death.

Under the current copyright regime, short-term profit outweighs long-term value. As copyright protection lurches toward perpetuity, America's cultural heritage in whatever media is increasingly becoming the property of corporate copyright holders. But it belongs to all of us. Technology has given fans the means to enhance and protect this common heritage. The law should give them the right.

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-Mickey Mouse versus Wired Magazine
[4 hits, 0 votes, Average Rating 0] [Added: 24th Oct 2002]

Findlaw's Writ; Marci Hamilton; October 24, 2002. Full title: MICKEY MOUSE VERSUS WIRED MAGAZINE: The Supreme Court Considers Whether A Law Extending The Copyright Term Is Constitutional

Make no mistake: the copyright term is now too long, if one judges the question from the perspective of the academic or artist or author who needs public domain fodder to draw upon, and cannot afford to license every work he or she needs to create the new works necessary for this culture.

The current term--life plus 70 years--means that an entire generation or two may not have the power ever to use a work freely, because they will likely die before it falls into the public domain. If the author creates his or her work at 30 and dies at 80, then the copyright will be protected for a staggering 120 years. That's ridiculous - and bad policy for a free society that needs the raw materials found in the public domain to generate the "new" that refreshes perspectives and challenges the status quo.

That is not to say, however, that term extension is unconstitutional. And indeed the Court will probably hold that the term extension Act is perfectly valid.

...In sum, I hold out little hope that the Supreme Court can save the United States from an overly long term of duration. Mickey Mouse won in Congress and will win at the Supreme Court. The most the challengers can expect by way of victory is for the Court to make some rather clear noises about the fact that the term is getting awfully long and there must be a stopping point somewhere - even if not at life plus 70.

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-Mickey Mouse vs. The People
[7 hits, 0 votes, Average Rating 0] [Added: 21st Feb 2002]

Salon; Damien Cave; February 21, 2002. Good history of the case
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-Opposing Copyright Extension WWW Site
[4 hits, 0 votes, Average Rating 0] [Added: 23rd Oct 2002]

Arizona State University; Dennis Karjala. Huge number of resources; cited in Lessig Blog
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-Setting Boundaries on Copyrights
[1 hits, 0 votes, Average Rating 0] [Added: 20th Feb 2002]

Wired.com; Kendra Mayfield; February 20, 2002.
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-Studios' copyright goal is total control
[2 hits, 0 votes, Average Rating 0] [Added: 1st Oct 2002]

SiliconValley.com; Dan Gillmor; September 29, 2002.

So the movie and music companies are going back to Congress for another helping. They are asking for laws that would force technology innovators to restrict the capabilities of devices -- cripple PCs and other machines that communicate so they can't make copies the copyright holders don't explicitly allow. Amazingly, the entertainment industry also wants permission to hack into networks and machines they believe are being used to violate copyrights.

Here is what it all means. To protect a business model and thwart even the possibility of infringement, the cartel wants technology companies to ask permission before they can innovate. The media giants want to keep information flow centralized, to control the new medium as if it's nothing but a jazzed-up television. Instead of accepting, as they do today, that a certain amount of penny-ante infringement will occur and then going after the major-league pirates, they call every act of infringement -- and some things that aren't infringement at all -- an act of piracy or stealing. Saying it doesn't make it so.

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-The Cultural Anarchist vs. the Hollywood Police State
[3 hits, 1 votes, Average Rating 0.00] [Added: 23rd Sep 2002]

Los Angeles Times; David Streitfeld; September 22, 2002. Cited in Doc Searls weblog

A Stanford Professor (Larry Lessig) Is One Supreme Court Decision Away From Ending Copyrights on Thousands of Movies, Books and Songs. If He Wins, the Entertainment Industry Will Have to Find Other Ways to Make Money

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