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World is divided between atoms and bits:

1. Atoms - Law of Real Property

  • Classic domain of law, law followed behind conquerer
    • Conquer with troops, then withdraw troops and install police => Law protects property so property can be developed
    • Self-protection--we have to protect ourselves, but law does what we can't do

2. Code - How is it different?

  • Code as all intellectual property
    • Not hard to protect when copying was slow but then Printing Press => Copyright.
  • Jefferson questioned the concept of copyright in ideas. His statement on this point
    • Ideas can be infinitely copied without anybody losing property
    • Ideas as air and fire

3. Reason for copyright in the Constitution

    • Creators need incentive to create, so state should offer means of control, but it should be limited
    • Real objective is the creation and spread of ideas
  • Copyright veering off intended path
    • 1790 - 14 years
    • 1998 - Mickey Mouse Protection Act - 90+ years
    • Engine of extension happens in the 1960s and 1970s, Hollywood realizes its IP wealth and lobbying abilities
    • American corporations afraid of competition with other markets
      • Jack Valenti - ANGRY MAN! Lobbying wizard
      • Reagan - Comes straight out of Hollywood's environment of IP control and vows commitment to maintain American technology superiority.
  • What happened?
    • Caribbean Basin Economic Recovery Act (1983) - Caribbean broadcasting US-copyrighted movies without asking for permission. Strategy developed of linking trade to IP protection.
      • If a country is asked to honor copyright and doesn't, there will be trade sanctions.
    • Watch List (1988) - Copyright holders can complain to US trade office.
    • TRIPS (1994) - Further implements the strategy
    • US Supreme Court affirms that copyright law does not infringe on the First Amendment.

4. Counterstrand

  • Univac
    • Hardcore old school
    • Flexible code
  • Networks
    • TBL invents HTML, networks grow
  • John Perry Barlow - lyricist of Grateful Dead, head of the EFF
  • Shawn Fanning - Napster
    • Peer-to-peer opens the floodgates and takes down the fences
    • Credibility of law called into question, since it has so much responsibility and inability to work
    • Bittorrent - Anyone can download anything written in bits.

5. Long-term picture

  • Environment populated with two sensibilities
    • Corporate/proprietary domain/wealth
      • Military cannot exist now without corporation
      • Profit and the structure of law that allows it
    • Aggregation of willing energies to create wealth
      • Public domain/common/wealth
  • Google's question: Can you use the public domain and nonproprietary sensibility to make money?
    • Question of openness has grey areas
  • Charles Fried
    • Individuality => Freedom
    • Recognition of importance of individuals => Freedom