9-18-class-notes2

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
- The Economy of Ideas (1994) Said that copyright is dead: nothing to hold the wine.
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
OPEN CODE<=>LAW
- 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