"PROPERTY"
“财产”

The copyright warriors are right: A copyright is a kind of property.
It can be owned and sold, and the law protects against its theft.
Ordinarily, the copyright owner gets to hold out for any price he
wants. Markets reckon the supply and demand that partially determine
the price she can get.
版权斗士们是对的：版权是一种财产（property）。它可以被拥有和出售，法律
也保护其不被盗窃。通常，版权所有者可以开任何其希望的价格。市场根据供需
来公平地计算出其价格。

But in ordinary language, to call a copyright a "property" right is a
bit misleading, for the property of copyright is an odd kind of
property. Indeed, the very idea of property in any idea or any
expression is very odd. I understand what I am taking when I take the
picnic table you put in your backyard. I am taking a thing, the picnic
table, and after I take it, you don't have it. But what am I taking
when I take the good /idea/ you had to put a picnic table in the
backyard - by, for example, going to Sears, buying a table, and
putting it in my backyard? What is the thing I am taking then?
但就通常语言意义上来讲，把版权称为“财产”是有些误导的，因为版权的财产
性是一种奇怪的财产性（property）。确实，任何主意和表达（expression）有
财产性这个概念本身就非常奇怪。我明白当我从您后院将您野餐用的桌子拿走时，
我拿走的是什么，因为您已经没有它了。但我“拿走”（take）您将野餐桌放在
后院的这个好_主意意_时——比如，去Sears（美国的一家百货公司）买一张桌子，
然后放到我的后院——我拿走了什么？

The point is not just about the thingness of picnic tables versus
ideas, though that's an important difference. The point instead is
that in the ordinary case - indeed, in practically every case except
for a narrow range of exceptions - ideas released to the world are
free. I don't take anything from you when I copy the way you dress -
though I might seem weird if I did it every day, and especially weird
if you are a woman. Instead, as Thomas Jefferson said (and as is
especially true when I copy the way someone else dresses), - He who
receives an idea from me, receives instruction himself without
lessening mine; as he who lights his taper at mine, receives light
without darkening me."~[1]
关键不只是野餐桌的物体属性和主意相对比，当然这也是个重要的区别。关键是
通常意义上——除了小范围内有例外，几乎在所有情况下——发表（release）到世
界上的主意是自由的。当我学您穿衣服时，我没从您那儿拿走任何东西——当然
如果我每天都这样做会显得挺怪异，尤其是如果您是个女人[注：因为作者是男
人]。正如托马斯·杰弗逊（Thomas Jefferson）所说（特别符合当我学别人穿
衣服的情况），——从我这儿得到点子的人，从我这儿得到了教导但没减少我
的（点子）；就像点燃我小蜡头儿的人，得到了光亮但没有使我处于黑暗。”

[1]: Letter from Thomas Jefferson to Isaac McPherson (13 August
1813) in /The Writings of Thomas Jefferson,/ vol. 6 (Andrew A.
Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333-34.
[1]：托马斯·杰弗逊给 Isaac McPherson 的信 (1813年8月13日),选自《托
马斯`杰弗逊的作品》, 卷6（Andrew A. Lipscomb， Albert Ellery
Bergh，编， 1903）, 330， 333-34。）

The exceptions to free use are ideas and expressions within the reach
of the law of patent and copyright, and a few other domains that I
won't discuss here. Here the law says you can't take my idea or
expression without my permission: The law turns the intangible into
property.
主意和表达可以被自由使用的这一例外在专利和版权法中都适用，在其它几个我
这里不做讨论的领域里也是这样。这里（here），法律说你不能未经我允许拿走
我的主意或表达：法律将无形的东西变为了财产（property）。

But how, and to what extent, and in what form - the details, in other
words - matter. To get a good sense of how this practice of turning
the intangible into property emerged, we need to place this "property"
in its proper context.~[97] My strategy in doing this will be the same
as my strategy in the preceding part. I offer four stories to help put
the idea of "copyright material is property" in context. Where did the
idea come from? What are its limits? How does it function in practice?
After these stories, the significance of this true statement -
"copyright material is property" - will be a bit more clear, and its
implications will be revealed as quite different from the implications
that the copyright warriors would have us draw.
但细节是如何、在多大程度上和以哪种形式产生影响。【？】为了能很好地明白
将无形的东西变为财产（property）的这种做法是如何出现的，我们需要将“财
产”放到合适的背景中。[1]我的策略和先前部分用的一样。我给出四个故事帮助
您将“版权作品（material）是财产”放到背景当中。这个概念从哪里来？它的
局限是什么？实际当中它如何起作用？读完这些故事，“版权作品是财产”这一
正确的陈述会更清晰一些，它包含的意思（implication）也会被揭示出来。您会
发现它与那些版权斗士们想让我们得出的结论是大不一样的。

[2]: As the legal realists taught American law, all property rights
are intangible. A property right is simply a right that an
individual has against the world to do or not do certain things
that may or may not attach to a physical object. The right itself
is intangible, even if the object to which it is (metaphorically)
attached is tangible. See Adam Mossoff, "What Is Property? Putting
the Pieces Back Together," /Arizona Law Review/ 45 (2003): 373,
429 n. 241.
[2]：如法律现实主义教授的美国法律，所有的财产权都是无形的。财产权不
过是个人反对（against）世界做某些事或不做某些事的权力，可以附属也可以
不附属于物质对象。权力本身事无形的，即使其（象征意义地）附属有行的东
西上。参阅 Adam Mossoff， 《财产是什么？将碎片归位》，出自《亚利桑那
州法律评论》，45（2003）：373,429 n. 241。

“PROPERTY”(关于所有权(简体), Tranlsator: iBuzzo, bxy)

---

CHAPTER SIX: FOUNDERS

William Shakespeare wrote Romeo and Juliet in 1595. The play was first published in 1597. It was the eleventh major play that Shakespeare had written. He would continue to write plays through 1613, and the plays that he wrote have continued to define Anglo-American culture ever since. So deeply have the works of a sixteenth-century writer seeped into our culture that we often don't even recognize their source. I once overheard someone commenting on Kenneth Branagh's adaptation of Henry V: "I liked it, but Shakespeare is so full of cliches."
In 1774, almost 180 years after Romeo and Juliet was written, the "copy-right" for the work was still thought by many to be the exclusive right of a single London publisher, Jacob Tonson.1 Tonson was the most prominent of a small group of publishers called the Conger.2 who controlled bookselling in England during the eighteenth century. The Conger claimed a perpetual right to control the "copy" of books that they had acquired from authors. That perpetual right meant that no one else could publish copies of a book to which they held the copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated.
Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the history of copyright is 1710, the year that the British Parliament adopted the first "copyright" act. Known as the Statute of Anne, the act stated that all published works would get a copyright term of fourteen years, renewable once if the author was alive, and that all works already published by 1710 would get a single term of twenty-one additional years.3 Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774?
The reason is that the English hadn't yet agreed on what a "copy-right" was--indeed, no one had. At the time the English passed the Statute of Anne, there was no other legislation governing copyrights. The last law regulating publishers, the Licensing Act of 1662, had expired in 1695. That law gave publishers a monopoly over publishing, as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said that the publishers, or "Stationers," had an exclusive right to print books.
There was no positive law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to both the words of legislatures and the words of judges to know the rules that are to govern how people are to behave. We call the words from legislatures "positive law." We call the words from judges "common law." The common law sets the background against which legislatures legislate; the legislature, ordinarily, can trump that background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law.
This question was important to the publishers, or "booksellers," as they were called, because there was growing competition from foreign publishers. The Scottish, in particular, were increasingly publishing and exporting books to England. That competition reduced the profits of the Conger, which reacted by demanding that Parliament pass a law to again give them exclusive control over publishing. That demand ultimately resulted in the Statute of Anne.
The Statute of Anne granted the author or "proprietor" of a book an exclusive right to print that book. In an important limitation, however, and to the horror of the booksellers, the law gave the bookseller that right for a limited term. At the end of that term, the copyright "expired," and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed.
Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right at all?
For the booksellers, and the authors whom they represented, had a very strong claim. Take Romeo and Juliet as an example: That play was written by Shakespeare. It was his genius that brought it into the world. He didn't take anybody's property when he created this play (that's a controversial claim, but never mind), and by his creating this play, he didn't make it any harder for others to craft a play. So why is it that the law would ever allow someone else to come along and take Shakespeare's play without his, or his estate's, permission? What reason is there to allow someone else to "steal" Shakespeare's work?
The answer comes in two parts. We first need to see something special about the notion of "copyright" that existed at the time of the Statute of Anne. Second, we have to see something important about "booksellers."
First, about copyright. In the last three hundred years, we have come to apply the concept of "copyright" ever more broadly. But in 1710, it wasn't so much a concept as it was a very particular right. The copyright was born as a very specific set of restrictions: It forbade others from reprinting a book. In 1710, the "copy-right" was a right to use a particular machine to replicate a particular work. It did not go beyond that very narrow right. It did not control any more generally how a work could be used. Today the right includes a large collection of restrictions on the freedom of others: It grants the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on.
So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the term was that no one could reprint Shakespeare's work without the permission of the Shakespeare estate. It would not have controlled anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be allowed to make his films. The "copy-right" was only an exclusive right to print--no less, of course, but also no more.
Even that limited right was viewed with skepticism by the British. They had had a long and ugly experience with "exclusive rights," especially "exclusive rights" granted by the Crown. The English had fought a civil war in part about the Crown's practice of handing out monopolies--especially monopolies for works that already existed. King Henry VIII granted a patent to print the Bible and a monopoly to Darcy to print playing cards. The English Parliament began to fight back against this power of the Crown. In 1656, it passed the Statute of Monopolies, limiting monopolies to patents for new inventions. And by 1710, Parliament was eager to deal with the growing monopoly in publishing.
Thus the "copy-right," when viewed as a monopoly right, was naturally viewed as a right that should be limited. (However convincing the claim is that "it's my property, and I should have it forever," try sounding convincing when uttering, "It's my monopoly, and I should have it forever.") The state would protect the exclusive right, but only so long as it benefited society. The British saw the harms from special-interest favors; they passed a law to stop them.
Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers. Booksellers sound quaint and harmless to us. They were not viewed as harmless in seventeenth-century England. Members of the Conger were increasingly seen as monopolists of the worst kind--tools of the Crown's repression, selling the liberty of England to guarantee themselves a monopoly profit. The attacks against these monopolists were harsh: Milton described them as "old patentees and monopolizers in the trade of book-selling"; they were "men who do not therefore labour in an honest profession to which learning is indetted."4
Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment was teaching the importance of education and knowledge spread generally. The idea that knowledge should be free was a hallmark of the time, and these powerful commercial interests were interfering with that idea.
To balance this power, Parliament decided to increase competition among booksellers, and the simplest way to do that was to spread the wealth of valuable books. Parliament therefore limited the term of copyrights, and thereby guaranteed that valuable books would become open to any publisher to publish after a limited time. Thus the setting of the term for existing works to just twenty-one years was a compromise to fight the power of the booksellers. The limitation on terms was an indirect way to assure competition among publishers, and thus the construction and spread of culture.
When 1731 (1710 + 21) came along, however, the booksellers were getting anxious. They saw the consequences of more competition, and like every competitor, they didn't like them. At first booksellers simply ignored the Statute of Anne, continuing to insist on the perpetual right to control publication. But in 1735 and 1737, they tried to persuade Parliament to extend their terms. Twenty-one years was not enough, they said; they needed more time.
Parliament rejected their requests. As one pamphleteer put it, in words that echo today,
I see no Reason for granting a further Term now, which will not hold as well for granting it again and again, as often as the Old ones Expire; so that should this Bill pass, it will in Effect be establishing a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to Trade, a Discouragement to Learning, no Benefit to the Authors, but a general Tax on the Publick; and all this only to increase the private Gain of the Booksellers.5
Having failed in Parliament, the publishers turned to the courts in a series of cases. Their argument was simple and direct: The Statute of Anne gave authors certain protections through positive law, but those protections were not intended as replacements for the common law. Instead, they were intended simply to supplement the common law. Under common law, it was already wrong to take another person's creative "property" and use it without his permission. The Statute of Anne, the booksellers argued, didn't change that. Therefore, just because the protections of the Statute of Anne expired, that didn't mean the protections of the common law expired: Under the common law they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors.
This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary chutzpah. Until then, as law professor Raymond Patterson has put it, "The publishers . . . had as much concern for authors as a cattle rancher has for cattle."6 The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave.
The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander Donaldson.7
Donaldson was an outsider to the London Conger. He began his career in Edinburgh in 1750. The focus of his business was inexpensive reprints "of standard works whose copyright term had expired," at least under the Statute of Anne.8 Donaldson's publishing house prospered and became "something of a center for literary Scotsmen."
"[A]mong them," Professor Mark Rose writes, was "the young James Boswell who, together with his friend Andrew Erskine, published an anthology of contemporary Scottish poems with Donaldson."9
When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold inexpensive editions "of the most popular English books, in defiance of the supposed common law right of Literary Property."10 His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection.
The London booksellers quickly brought suit to block "piracy" like Donaldson's. A number of actions were successful against the "pirates," the most important early victory being Millar v. Taylor.
Millar was a bookseller who in 1729 had purchased the rights to James Thomson's poem "The Seasons." Millar complied with the requirements of the Statute of Anne, and therefore received the full protection of the statute. After the term of copyright ended, Robert Taylor began printing a competing volume. Millar sued, claiming a perpetual common law right, the Statute of Anne notwithstanding.11
Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever protection the Statute of Anne gave booksellers, it did not, he held, extinguish any common law right. The question was whether the common law would protect the author against subsequent "pirates." Mansfield's answer was yes: The common law would bar Taylor from reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them.
Considered as a matter of abstract justice--reasoning as if justice were just a matter of logical deduction from first principles--Mansfield's conclusion might make some sense. But what it ignored was the larger issue that Parliament had struggled with in 1710: How best to limit the monopoly power of publishers? Parliament's strategy was to offer a term for existing works that was long enough to buy peace in 1710, but short enough to assure that culture would pass into competition within a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited.
The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix.
Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included Thomas Beckett.12 Donaldson then released an unauthorized edition of Thomson's works. Beckett, on the strength of the decision in Millar, got an injunction against Donaldson. Donaldson appealed the case to the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before.
As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of attention throughout Britain. Donaldson's lawyers argued that whatever rights may have existed under the common law, the Statute of Anne terminated those rights. After passage of the Statute of Anne, the only legal protection for an exclusive right to control publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected.
The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the "law lords," members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted.
The reports about the law lords' votes are mixed. On some counts, it looks as if perpetual copyright prevailed. But there is no ambiguity about how the House of Lords voted as whole. By a two-to-one majority (22 to 11) they voted to reject the idea of perpetual copyrights. Whatever one's understanding of the common law, now a copyright was fixed for a limited time, after which the work protected by copyright passed into the public domain.
"The public domain." Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual. After 1774, the public domain was born. For the first time in Anglo- American history, the legal control over creative works expired, and the greatest works in English history--including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan--were free of legal restraint.
It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, where most of the "pirate publishers" did their work, people celebrated the decision in the streets. As the Edinburgh Advertiser reported, "No private cause has so much engrossed the attention of the public, and none has been tried before the House of Lords in the decision of which so many individuals were interested."
"Great rejoicing in Edinburgh upon victory over literary property: bonfires and illuminations."13
In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The Morning Chronicle reported:
By the above decision . . . near 200,000 pounds worth of what was honestly purchased at public sale, and which was yesterday thought property is now reduced to nothing. The Booksellers of London and Westminster, many of whom sold estates and houses to purchase Copy-right, are in a manner ruined, and those who after many years industry thought they had acquired a competency to provide for their families now find themselves without a shilling to devise to their successors.14

"Ruined" is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords meant that the booksellers could no longer control how culture in England would grow and develop. Culture in England was thereafter free. Not in the sense that copyrights would not be respected, for of course, for a limited time after a work was published, the bookseller had an exclusive right to control the publication of that book. And not in the sense that books could be stolen, for even after a copyright expired, you still had to buy the book from someone. But free in the sense that the culture and its growth would no longer be controlled by a small group of publishers. As every free market does, this free market of free culture would grow as the consumers and producers chose. English culture would develop as the many English readers chose to let it develop-- chose in the books they bought and wrote; chose in the memes they repeated and endorsed. Chose in a competitive context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many.
At least, this was the rule in a world where the Parliament is anti-monopoly, resistant to the protectionist pleas of publishers. In a world where the Parliament is more pliant, free culture would be less protected.
中文（简体）

莎士比亚于1595年创作了罗密欧与朱丽叶，该剧本在1597首次出版发行，这是莎士比亚主要戏曲中的第十一部。他于1613年终止创作，而他的剧本却不断的影响着英美文化，直到现在。16世纪作家们的著作是如此深远地影响着我们以致于我们都不会去考证他们的来源。我曾无意中听到有人这样评价《亨利五世》Knneth Branagh的改编版：我喜欢他的，而莎士比亚的原作却充满了陈词滥调。

1774年，写出罗密欧与朱丽叶后的将近180年，仍有很多人认为该著作的“出版权”为伦敦出版商Jacob Tonson一人所拥有。Tonson是当时一个被称为康吉的出版业集团的首领。康吉集团在整个18世纪都控制着英格兰的书商。康吉集团宣称他们对从作者那里获得的书拥有永久的“出版权”，永久“出版权”意味着别人不能对他们持有版权的书进行出版。因此古典文学作品的书价居高不下，那些促使生产物美价廉版本的竞争也随之不复存在。

现今，任何一个懂一点版权法的人对于1774年的现象都是无法理解的。版权史上比较著名的一年应该是1710年，这一年英国国会修改了最初的“版权”法案。以“安妮法令”而著称，这项法案明确指出所有已出版的作品都将得到一个为期14年的版权期，只要作者还活着就可继续更新，并且所有在1710年之前出版的著作都将额外得到21年的专用期（？）。根据这项法律，《罗密欧与朱丽叶》应该在1731年即是免费的。那么为什么在1774年与此相关的一些发行物仍然在唐森的控制之下呢？

原因是英国还未对“什么是‘版权’”达成协定，当然实际上，当时还没有一个国家做到了。在英国通过“安妮女王法令”时，还没有其他的立法来指导版权（法）。规范出版商的最后法律，1662年的特许法，到1695年就已到期。作为刑事法庭掌握何者被出版的一条更简便的途径，那项法律给予出版商控制出版物的专有权。但是当它到期之后，还没有一项制定法规定出版商或“文具商”拥有发行书（刊）的专有权。

没有制定法并不代表没有法律。英美法律惯例从字面上看就是来自立法机构和法官这两者的条文，而后者则须知晓那些如何管理人们行为的规则（？）。我们将来自立法机构的条文称为“制定法”，将来自法官的条文称为“习惯法”（还是共同法，普通法？）。习惯法给立法机构立法设置了一条底线，通常，只有在立法机构通过一项法律替代它的情况下立法机构才能超越这条底线。因此，当特许法到期之后，真正的问题在于习惯法是否独立于任何制定法之外（？）保护了版权。

对于出版商或者是那些被人称作“书商”的来说，这个问题很重要，因为来自外国出版商的竞争正在加剧。尤其是苏格?既耍钦嚼丛蕉嗟亟榭霭娌⒊隹谥 劣⒏窭肌?这些竞争导致康吉的利益滑坡，这就要求国会通过一项法律赋予他们拥有控制出版物的专有权来应对。这种需求最终导致了“安妮女王法令”的出台??

“安 妮女王法令”赋予书本的作者或者所有者印刷书本的权利。然而，这项法令存在一个重大的局限，同时也让书商感到惊骇的是，它在赋予书商那项权利的同时还附带 一项限制条文。在那项限制条文的结尾写明，当版权到期之后，那些著作将会重获自由，并可以被任何人出版发行。大概如此这项立法才能让人信服吧！

现在，让人一时不解的事情在这?铮何裁垂嵯拗屏苏庀钭ㄓ腥ā２皇俏伟凑账撬瓒ǖ哪茄聪拗疲俏?非设限不可？

因为书商们以及他们所代表的作者们有着强烈的（？）。以《罗密欧与朱丽叶》为例：这部戏剧为莎士比亚创作，将它带入这个世界的也是他的天才思想。当他创作 这部戏剧（这个有争议，但在这里并不重要）的时候他并未占用任何人的财产，……（？）。那么法律又为何允许有其他人出现并在未经莎士比亚本人或者他的财产 的许可而擅自占有他的戏剧呢？是什么原因允许其他人“掠取”莎士比亚的作品呢？

回答这个问题可以从两个方面着手：首先我们应该注意到在“安妮法令”时期“版权”观念的特殊性。其次我们必须意识到“书商”的重要性。

先来谈关于版权的问题。在过去的三百年中，“版权”这个概念在不断地深入我们的生活。但是在1710年，这个概念在人们的观念中还不是很清晰，因为他还只是一项非常特殊的权力。版权的出现是为了明确限定：禁止其他人重印书本。1710年， 所谓的“版权”还只是一项允许使用一种特定的机器复制一部特定的著作的权力。它根本就不能超越于这项狭义的权力之外，更不能控制著作通常意义上的使用权。 今天的版权概念则包括一大堆限制他人自由使用他人著作的权力——授予作者复制的专有权，分发的专有权和表演的专有权等等。

那么我们按照这种情况来假设，就算莎士比亚作品的版权是永久的，根据条文来看，版权法原意也只是仅仅局限在，没有得到莎士比亚授权的情况下，没人能重印莎士比亚的作品。它并没有限制其他的权力，诸如表演，是否可以翻译，或者是否Kenneth Branagh被允许将它拍成电影。“版—权”仅仅是指印刷出版的专有权—不会更少，不过也仅此而已。

英国人甚至用怀疑的态度来看待对版权的保护期。他们经历了太久的丑陋的“唯一权力”，特别是这种唯一权力是王室所赐予的。为了废除垄断尤其是对出版业的垄断，英国和王室打了一场文明仗。亨利8世给Darcy以印刷圣经的专利权，以及印刷扑克牌的垄断。英国议会受开始反抗王室的力量。1656年，议会通过了垄断法，限制对新发明的垄断。1710年议会开始急于对付对出版业的日益猖獗的垄断。

所以，当版权被看作是一种垄断的权力的时候自然而然的也被看作是一种应该被限制的权力。（括号内没有翻译）政府会保护这种唯一的权力，只要它对社会有好处。英国人看到了来自这种特殊利益的海处，所以他们颁布法律终止了这种唯一权力。

其次是书商，不仅版权处于垄断状态，在书的销售方面也一样。对于我们来说书商好象是无辜的，但是在17世纪中叶的英格兰他们却不是那么无辜的。康戈尔（Conger）集团的成员们日益被人们看作是最可恶的垄断者，是以出卖英格兰文明而维护自己垄断利益的英国王室代表们的走狗。人们用很严厉的语言攻击这些垄断者：米尔顿说他们是专利权的受益者，是书的交易中的垄断者。

很多人认为当启蒙运动使人们认识到知识的重要性并且知识得到广泛传播时，书商们的这种垄断行为没有促进反而阻碍了知识的正常传播。应该成为启蒙运动时代的标志，而这些强大的商业利润成了这种观点发展的绊脚石。

为 了平衡商业利益与知识共享之间的冲突，英国议会决定增加书商之间的竞争。增加竞争的最简单的方法就是扩享大书的利用价值。因此议会限制了书商拥有版权的时 间，从而保证任何一个出版商能够在某一时期内得到这些有价值的书的出版权。然而这个方法对每一本当时现存的著作的限期只有21年，这是议会向书商们作出的妥协。对版权的限期能间接确定版商之间的竞争程度同时也能确定文化的传播程度及其意义。

当1731年到来时（经历了安妮法的第一个21年），书商们开始担心起来，他们看到了随之而来的更多的竞争者，和所有的竞争者一样他们不喜欢有新的竞争者出现。开始时他们否认安妮法，坚持永久版权，但是到了1735年和1737年他们又试图说服议会延长他们拥有出版权的期限。21年不够，他们说，他们需要更长的时间。

议会驳回了他们的要求，一个小册子的作者记载了这一事件，总之它符合了今天的要求。

我 看没有理由去延长那个期限，这一次延长了就会有第二次，那么这个期限将一次次的被延长，就像旧的法律一次次的被废止一样。所以假如这次要求通过了就等于是 建立了永久的版权垄断，这将注定是法律史上的一次丑闻；它也将是对自由交易的巨大束缚，是对求知的打击；对作者本人没有什么益处，同样对公共税收也无益 处；所有这些都只增加了书商个人的收入。

被 议会拒绝后出版商们开始求助于法官。他们的论点简单而直接。他们认为安妮法作为一项正式法律被通过给予了作者本人正当的保护，但是保护作者的那些法律条文 并不意于取代习惯法，相反，正是补充了习惯法。习惯法规定剥夺以及不经允许使用别人创作的“财产”是不正确的。书商们认为安妮法和习惯法在这一点上是相同 的。所以，仅仅安妮法对他们版权的保护终止了，并不能说明习惯法的保护也终止了。也就是说，即使安妮法规定的版权期满了，根据习惯法他们也拥有禁止某一本 书出版的权利。他们说这是保护作者的唯一可行的方法。

这是一个聪明的辩解，在当时还得到一些法官们的支持，这也显示了其超常的厚颜无耻。那时候，就想法学教授Raymond Paherson所说：出版商关心作者就如同牧场主关心他养的牛一样。书商从不关心将作者的权利置于何地。他只关心作者的著作所给他带来的垄断利益。

书商们的辩解不攻自破，促使书商们狡辩失败的英雄是一个叫做亚历山大·Donaldson的书商。

Donaldson是伦敦康戈尔集团以外的人，他于1750年在爱丁堡开始了他出版上的职业生涯他主要以低价重新出版那些“版权超出期限的作品”，在安妮法的保护下Donaldson的事业至少还算兴旺，并成为“苏格兰文学青年中的中心人物”。

MarkRose教授记载：在他们中间，年轻的James Boswell和他们的朋友Andraw Erkin以及Donaldson一起出版了当代苏格兰诗选集。

当 伦敦书商们试图关闭Donaldson在苏格兰的书店时，Donaldson却将书店开到了伦敦。他在那里出售各种畅销英文书籍的廉价版本，公开挑衅文学 财产习惯法的维护者。他的书的出售使康戈尔集团的书价下降了30%-50%，而且他是在已经失去了安妮法的保护的基础上用他自己的实力参与竞争的。

伦敦的书商们很快采取措施以阻止类似Donaldson的这种“非法盗印”行为，他们向法院提起了上诉。一些诉讼确实成功的打击了“盗版者”。早期最成功的诉讼应该是MillarｖTaylar的例子。

Millar 也是一个出版商，他于1792年买下了James Thomson（托马逊）的诗集“The Season”的出版权。Millar服从了安妮法的，并理所当然地得到了安妮法的保护。版权期满后Rorbert Taylar开始竞争该诗集的出版权。这时Millar上诉要求该书在习?叻ɑ∩系挠谰冒嫒ǎ挥械玫桨材莘ǖ闹С帧?

令当今律师们惊讶的是英国历史上最伟大的法官Lord Mansfield竟然同意书商的要求。他认为无论安妮法给了书商什么样的保护都没有废止任何一款习惯法的条文。问题在于习惯法能否让作者远离随之而来的 盗版者。Mansfield的答案是肯定的。他说习惯法能禁止Taylar在不经Millar同意的情况下翻印托马逊的诗。习惯法的法律条纹就是这样有效 的给予了书商们永久的权利使他们能够永久地控制某些书的出版。

这只能被看做是一种抽象意义上的公正，如果公正仅仅是第一条规则的逻辑推理的话，Mansfield 的结论可能还有点道理。但是他忽略了1710年议会为之争论不休的更大的问题，那就是如何更好的控制出版商的垄断能力。议会的对策是为现存的著作提供一个 足够长的时间以求得1710年的和平，而这个时间又要足够短以确保英国文化能够在适当的时间内转入竞争。议会确定在21年以内英国能够从英王室所觊觎的垄 断文化成长为我们现在所继承的自由文化。

另一边保卫安妮法的战斗并未结束，这边Donaldson却陷入了混乱。

Millar 在他成功后不久于人世，所以他的成功没有继续下去。他的集团将Thomson的是诗卖给了印刷者组成的企业联合组织，这个组织也包括Thomson Beckett在内。Donaldson随后发行了Thomson诗集的盗版版本，Beckett在Millar成功的鼓励下，开始打击 Donaldson。Donaldson就此事向上议院提起上诉，上议院的功能相当于我们的高级法院。1774年2月上议院（还是应该翻译为安妮法）才有 机会诠释60年前议会对版权限期的含义。

Donaldson 与Beckett之间的这场官司得到了来自不列颠的广泛关注，其轰动性几乎没有别的案件可以企及。Donaldson的律师们认为任何权利都是习惯法为基 础而存在的，安妮法的通过使这种基础不存在了。所以自安妮法通过以后，书商们控制出版的唯一权利只能从安妮法那里寻求合法的保护。这样，当安妮法规定的一 部作品的版权期满后，它就失去了安妮法的保护。

上议院是一个临时的机构，法律问题首先由那些司法大臣们表决并呈递个上议院。而司法大臣是的功能类似于我们高级法院的审判员。司法大臣表决后上议院做总的决议。

有关司法大臣们的表决情况非常混乱，根据某些法律条款，永久出版权好象是占上风的。但是上议院的表决是决不含糊的，以22：11的绝对优势否决了永久版权。无论人们对习惯法是怎样理解的，现在版权已经有了期限，在限定时间以外著作本身就进入了不受版权限制的状态。

“不受版权限制状态”。在Donaldson V Beckett案之前，不受版权限制状态没有一个明确的概念。1774年前，舆论普遍认为习惯法的版权是永久性的；1774年以后不受版权限制状态诞生 了，在英美历史上，第一次，法律对创作的限制失去了效力，英国历史上很多伟大的著作，包括莎士比亚、培根、米尔顿、约翰逊以及布尼安的作品终于脱离了法律 的束缚。

这对于我们来水真是难以想象，但在当时上议院的这个决议引起了民众以及政界的强烈反应。在苏格兰，大多数“非法盗印者”开始工作，人们在街头庆祝这个决议的通过。正如Edinburgh Advertiser所报道的：没有别的私人案件能如此公众的关注，也没有别的决议能像上议院的这个决议一样使那么多人感兴趣。

灯火通明显示着人们胜利后的巨大喜悦。

然而在伦敦，至少在出版界，与爱丁堡相反的反应同样强烈。Morning Chronicle报道说：

这个决议使将近20，000英镑昨天还是财富的东西化为虚无，很多伦敦以及政界的书商们卖掉财团及房子以购买版权，他们都以同样的方式毁灭了。这些人经过多年辛苦的经营以为他们可以给他们的家人以优裕的生活，但是现在他们却发现他们没有一个先令可以传给他们的后代了。

用“毁 灭”这个词来形容是有一点夸张，但用以说明变化的深刻却一点也不夸张。上议院的这个决定意味着书商们再也不能控制英国文化如何成长及发展了，从此以后英国 的文化走向自由。这并不是说版权不能个人化，在著作出版后的一段时间内，书商是唯一能控制该著作出版的权利拥有者；这也不意味着该著作可以被非法盗印，即 使是版权期满后你也必须从另一个人手里买得这本书的版权。自由的意思是说文化及其成长发展不在控制在一小部分人的手中。就像任何一个自由市场一样，自由文 化的市场的发展方向应该是由消费者和生产者双向选择的。英国文化将沿着英国读者所选择的方向发展，他们可以选择读什么样的书，也可以选择写什么样的书，chose in the memes they repeated and endorsed.
选择竞争的机制，给大家什么样的文化以及怎样给都服从多数而不是少数几个人的意愿。

至少，这是在议会反对垄断的社会中有这样一个规则去反对保护出版商的请求，如果是在议会易于屈从的时代，自由文化就不那么受保护了。

Chapter 6: Founders(创立者(简体), Tranlsator: AlanJiang, Reviewers:Isaac;創立者(簡繁體), Tranlsator: Marian;創立者(繁體), Tranlsator: Marian)

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CHAPTER SEVEN: Recorders

Jon Else is a filmmaker. He is best known for his documentaries and has been very successful in spreading his art. He is also a teacher, and as a teacher myself, I envy the loyalty and admiration that his students feel for him. (I met, by accident, two of his students at a dinner party. He was their god.)

Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today.

In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. Stagehands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage.

During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a television set. Playing on the television set, while the stagehands played checkers and the opera company played Wagner, was The Simpsons. As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene.

Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless "fair use" or some other privilege applies.

Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-half-second image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program.

Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox.

Then, as Else told me, "two things happened. First we discovered...that Matt Groening doesn't own his own creation --- or at least that someone [at Fox] believes he doesn't own his own creation." And second, Fox "wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of ... entirely unsolicited Simpsons which was in the corner of the shot."

Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He explained to her, "There must be some mistake here.... We're asking for your educational rate on this." That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told.

"I wanted to make sure I had my facts straight," he told me. "Yes, you have your facts straight," she said. It would cost $10,000 to use the clip of The Simpsons in the corner of a shot in a documentary film about Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And if you quote me, I'll turn you over to our attorneys." As an assistant to Herrera told Else later on, "They don't give a shit. They just want the money."

Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera. To reproduce this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before.

There's no doubt that someone, whether Matt Groening or Fox, owns the copyright to The Simpsons. That copyright is their property. To use that copyrighted material thus sometimes requires the permission of the copyright owner. If the use that Else wanted to make of the Simpsons copyright were one of the uses restricted by the law, then he would need to get the permission of the copyright owner before he could use the work in that way. And in a free market, it is the owner of the copyright who gets to set the price for any use that the law says the owner gets to control.

For example, “public performance” is a use of The Simpsons that
the copyright owner gets to control. If you take a selection of favorite
episodes, rent a movie theater, and charge for tickets to come see “My
Favorite Simpsons,” then you need to get permission from the copyright owner. And the copyright owner (rightly, in my view) can charge whatever she wants—$10 or $1,000,000. That’s her right, as set by the law.

But when lawyers hear this story about Jon Else and Fox, their first
thought is “fair use.”1 Else’s use of just 4.5 seconds of an indirect shot
of a Simpsons episode is clearly a fair use of The Simpsons—and fair use does not require the permission of anyone.

So I asked Else why he didn’t just rely upon “fair use.” Here’s his reply:

The Simpsons fiasco was for me a great lesson in the gulf between
what lawyers find irrelevant in some abstract sense, and what is crushingly relevant in practice to those of us actually trying to make and broadcast documentaries. I never had any doubt that it was “clearly fair use” in an absolute legal sense. But I couldn’t rely on the concept in any concrete way. Here’s why:

1. Before our films can be broadcast, the network requires that we buy Errors and Omissions insurance. The carriers require a detailed “visual cue sheet” listing the source and licensing status of each shot in the film. They take a dim view of “fair use,” and a claim of “fair use” can grind the application process to a halt.

2. I probably never should have asked Matt Groening in the first place. But I knew (at least from folklore) that Fox had a history of tracking down and stopping unlicensed Simpsons usage, just as George Lucas had a very high profile litigating Star Wars usage. So I decided to play by the book, thinking that we would be granted free or cheap license to four seconds of Simpsons. As a documentary producer working to exhaustion on a shoestring, the last thing I wanted was to risk legal
trouble, even nuisance legal trouble, and even to defend a principle.

3. I did, in fact, speak with one of your colleagues at Stanford Law School . . . who confirmed that it was fair use. He also confirmed that Fox would “depose and litigate you to within an inch of your life,” regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them.

4. The question of fair use usually comes up at the end of the project, when we are up against a release deadline and out of money.

In theory, fair use means you need no permission. The theory therefore
supports free culture and insulates against a permission culture.But in practice, fair use functions very differently. The fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight. The law has the right aim; practice has defeated the aim.

This practice shows just how far the law has come from its eighteenth-century roots. The law was born as a shield to protect publishers’ profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not.
中文简体
第七章：记录员
琼.艾尔斯(Jon Else)是摄影导演。以拍摄纪录片闻名的他成功地将电影艺术传播给大众。他也是一名教师，他学生对他的忠诚和敬佩让同为教师的我忍不住羡慕。(一次偶然的晚餐聚会上，我遇见他的两个学生。他们就像对神一样景仰他。)

我曾经参与过艾尔斯执导的一部纪录片。在空暇时，他跟我讲了一个今时今日在美国创造电影所引发的关于自由的故事。
在1990年，艾尔斯忙于制作一部关于瓦格纳的“尼伯龙根的指环”的纪录片。片子的重点是圣佛朗西斯科歌剧的舞台管理者。舞台管理者是一部歌剧中最有趣，最具有色彩性的元素。在表演期间，他们吊在控制廊和灯光塔的舞台下面，并与舞台上的艺术表演形成了的对比。

在其中的一次录制过程中，艾尔斯在拍一些舞台管理者在玩西洋棋。在房间的一角，是一部电视机，在瓦格纳歌剧的陪同下，在这些管理者下棋的同时，电视中播放的正是“辛普森”。正如艾尔斯所料，与卡通漫画的接触，非常有助于捕捉这些场景中特别的情调。
几年后，当他最终有了足够的资金来完成这部纪录片时，艾尔斯尝试着解除当年拍摄过程中录下的那几秒“辛普森”片中的版权，因为理所当然的原因，那几秒钟的录像是有版权的；并且，如果想使用带有版权的材料，你必须得到版权所有者的许可——除非是“合理使用”或者通过某种特权申请。
艾尔斯打电话到“辛普森”的制作者——马特.格劳宁（Matt Groening）的办公室，希望得到许可。格劳宁认可了那段录像。它出现在房间的一角上一个很小的电视机上，并且只有四秒半的时长。这能有什么呢？格劳宁很高兴能在纪录片中看到这段录像，但是他告诉艾尔斯，还是要联系一下这个项目的制作公司，格雷西电影公司。

格 雷西电影公司也同意了请求，但是他们和格劳宁一样，希望能够更谨慎一些。于是，他们告诉艾尔斯和福克斯公司联系一下，也就是他们的上级公司。艾尔斯打电话 给福克斯公司，并且告诉了他们有关于这个在房间的一角拍摄到的镜头的情况，说格劳宁已经许可了他。他只是希望得到福克斯公司的进一步许可。

然后，艾尔斯告诉我，“发生了两件意想不到的事情，首先，我们发现格劳宁并不拥有他自己的作品，或者说，福克斯公司的某些人认为格劳宁并不拥有他的作品。”第二，福克斯公司“希望我们对这墙角里出现的完全主动提供的四秒半钟的录像付1万美元的许可费。”

艾尔斯确信这里面有一个误会，他去找一些他认为级别更高的人，丽贝卡. 赫雷拉（Rebecca Herrera）主管许可的副主席。他向她解释道：“这里面一定出现了一些小错误……我们想知道你对教育评估标准的看法。”这就是教育评估标准，赫雷拉告诉艾尔斯。一天后，艾尔斯又打电话询问，并证实了他说听到的。

“我只是想保证我的纪录片的真实性”他告诉我。“是的，你已经保持了它的真实性”她说。实际上，在这个瓦格纳歌剧的纪录片中，使用的这几秒钟墙角里面的辛普森录像，将花费1万美元。然后，令人惊讶的是，赫雷拉告诉艾尔斯“如果你要更详细一些，可以去找见我们的律师”。正如后来赫雷拉的一个助手告诉艾尔斯的一样“他们并不在乎，他们只是想要钱。”

艾尔斯没有钱购买这个录像的版权,它只是出现在歌剧的后台一角，一台正在播放的电视画面上的.想要真实地重现事实，将会超出纪录片的预算。在电影公映前的最后时刻，艾尔斯通过数字手段，把那段录像替换为他10年前所拍的一个片子——“三位体后来的日子”[?]

毋庸置疑——格劳宁，或者福克斯公司，他们中肯定有人拥有“辛普森” 一片的版权。那版权是他们的财产。很多时候，想使用有版权的材料，是需要得到版权所有者的许可的。如果艾尔斯对辛普森版权的使用方式是法律所限定的使用方 式，那么，他必须在他开始使用这些材料之前，得到版权所有者的许可。而且，在自由市场中，只要是在法律上归版权所有者控制的使用方式，就由版权所有者自己 来确定使用这些版权的价格。

举个例子，“公众表演”是辛普森的 版权所有者拥有的一种使用方式。如果你选择了一段你最喜欢的情节，租用了电影院，并且对来看“我最喜爱的辛普森”的人卖票收费，那么，你必须得到版权所有 者的许可。版权所有者（在我看来是这样）可以收取任何她想要的费用——十美元或者一百万美元。这是她的权力，法律所规定的权利。

但是当律师们听到这个艾尔斯和福克斯公司的事情后，他们的第一反应是“合理使用”1 。艾尔斯这仅仅4.5秒间接拍摄的辛普森片断，很明显是对辛普森的“合理使用”——而合理使用是不必经过任何人的许可的。

于是我问艾尔斯，为什么不借助“合理使用”，他作了如下回答：

辛普森的彻底失败给我在深渊的夹缝中上了深刻的一课，深渊一边是律师们在抽象的理解中寻找不相干的东西，另一边是绝对关系到实际的我们要努力完成并公映纪录片。我从来没有怀疑过，在法律意义上，这绝对是一个非常确切的“合理使用”但是我不能以任何具体的方式来指望和依靠这个概念。因为：

1.在我们的电影播放之前，广播网要求我们购买过失责任保险。承保人要求我们提供一份详细的“可视节目一览表”,列出电影中每一个镜头的原始资料和版权的情况。他们并不看好“合理使用”，声明“合理使用”只会最终将申请拖至夭折。
2.我也许根本就不应该先向格劳宁询问。但是我知道（至少大家都这么说），福克斯公司有过追查并停止没有执照的辛普森使用的历史，正象乔治·卢卡斯（George Lucas）在“星球大战”中的使用而引起的引人注目的诉讼一样。 所以我决定遵循书上的做法，认为我们这四秒辛普森或免费或便宜的许可是能得到批准的。
3.事实上，我曾跟你在斯坦福法学院的一位同事谈过这个问题，他当时肯定了我关于这属於公平应用的观点。不过他同时也表示无论我的主张有何等价值，福克斯公司一定会“在法庭上对你的做法缁铢必较” 。他让这个问题变得清晰多了：就看谁能获得更大法律部门的支持以及谁的钱袋更鼓，我还是他们。
4.“合理使用”的问题基本上都发生在项目接近完成的阶段—最后期限眼看就到而且资金告罄。
理 论上说，合理使用意味着你不需要许可。同样的理论因此支持自由文化并使他们和许可文化划清界限。不过在实际中，合理使用的案例大相径亭。法律上模糊不清的 界定，以及与越界行为相关连的庞大法律责任，意味着对很多类型的创作者来说有效的合理使用是微不足道的。法律出於合理的目的，实践却与之背道而驰。

实践的存在恰恰表现了法律与其18世纪根?粗涞木薮蟛钜臁７傻慕⑹俏吮Ｕ铣霭嫔痰睦娌槐晃奘雍侠硎褂么嬖诘?“海盗” 们的不合理使用损害。这个法律最终却成长为对一切有或者没有变通可能性的使用都要干涉的双刃剑。

Chapter 7: Recorders(记录员(简体), Tranlsator: babyking, zGAso,Reviewers:babyking;)

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CHAPTER EIGHT: Transformers
In 1993, Alex Alben was a lawyer working at Starwave, Inc. Star- wave was an innovative company founded by Microsoft cofounder Paul Allen to develop digital entertainment. Long before the Internet became popular, Starwave began investing in new technology for delivering entertainment in anticipation of the power of networks.
Alben had a special interest in new technology. He was intrigued by the emerging market for CD-ROM technology—not to distribute film, but to do things with film that otherwise would be very difficult. In 1993, he launched an initiative to develop a product to build retrospectives on the work of particular actors. The first actor chosen was Clint Eastwood. The idea was to showcase all of the work of Eastwood, with clips from his films and interviews with figures important to his career.
At that time, Eastwood had made more than fifty films, as an actor and as a director. Alben began with a series of interviews with Eastwood, asking him about his career. Because Starwave produced those interviews, it was free to include them on the CD.
That alone would not have made a very interesting product, so Starwave wanted to add content from the movies in Eastwood's career: posters, scripts, and other material relating to the films Eastwood made. Most of his career was spent at Warner Brothers, and so it was relatively easy to get permission for that content.
Then Alben and his team decided to include actual film clips. “Our goal was that we were going to have a clip from every one of East-wood's films,” Alben told me. It was here that the problem arose. “No one had ever really done this before,” Alben explained. “No one had ever tried to do this in the context of an artistic look at an actor's career.”
Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, “Well, what will it take?”
Alben replied, “Well, we're going to have to clear rights from everyone who appears in these films, and the music and everything else that we want to use in these film clips.” Slade said, “Great! Go for it.”
The problem was that neither Alben nor Slade had any idea what clearing those rights would mean. Every actor in each of the films could have a claim to royalties for the reuse of that film. But CDROMs had not been specified in the contracts for the actors, so there was no clear way to know just what Starwave was to do.
I asked Alben how he dealt with the problem. With an obvious pride in his resourcefulness that obscured the obvious bizarreness of his tale, Alben recounted just what they did:
So we very mechanically went about looking up the film clips. We made some artistic decisions about what film clips to include—of course we were going to use the “Make my day” clip from Dirty Harry. But you then need to get the guy on the ground who's wiggling under the gun and you need to get his permission. And then you have to decide what you are going to pay him.
We decided that it would be fair if we offered them the day- player rate for the right to reuse that performance. We're talking about a clip of less than a minute, but to reuse that performance in the CD-ROM the rate at the time was about $600.
So we had to identify the people—some of them were hard to identify because in Eastwood movies you can't tell who's the guy crashing through the glass—is it the actor or is it the stuntman? And then we just, we put together a team, my assistant and some others, and we just started calling people.
Some actors were glad to help—Donald Sutherland, for example, followed up himself to be sure that the rights had been cleared. Others were dumbfounded at their good fortune. Alben would ask, “Hey, can I pay you $600 or maybe if you were in two films, you know, $1,200?” And they would say, “Are you for real? Hey, I'd love to get $1,200.” And some of course were a bit difficult (estranged ex-wives, in particular). But eventually, Alben and his team had cleared the rights to this retrospective CD-ROM on Clint Eastwood's career.
It was one year later—“and even then we weren't sure whether we were totally in the clear.”
Alben is proud of his work. The project was the first of its kind and the only time he knew of that a team had undertaken such a massive project for the purpose of releasing a retrospective.
Everyone thought it would be too hard. Everyone just threw up their hands and said, “Oh, my gosh, a film, it's so many copyrights, there's the music, there's the screenplay, there's the director, there's the actors.” But we just broke it down. We just put it into its constituent parts and said, “Okay, there's this many actors, this many directors, . . . this many musicians,” and we just went at it very systematically and cleared the rights.
And no doubt, the product itself was exceptionally good. Eastwood loved it, and it sold very well.
But I pressed Alben about how weird it seems that it would have to take a year's work simply to clear rights. No doubt Alben had done this efficiently, but as Peter Drucker has famously quipped, “There is nothing so useless as doing efficiently that which should not be done at all.”2 Did it make sense, I asked Alben, that this is the way a new work has to be made?
For, as he acknowledged, “very few . . . have the time and resources, and the will to do this,” and thus, very few such works would ever be made. Does it make sense, I asked him, from the standpoint of what anybody really thought they were ever giving rights for originally, that you would have to go clear rights for these kinds of clips?
I don't think so. When an actor renders a performance in a movie, he or she gets paid very well. . . . And then when 30 seconds of that performance is used in a new product that is a retrospective of somebody's career, I don't think that that person . . . should be compensated for that.
Or at least, is this how the artist should be compensated? Would it make sense, I asked, for there to be some kind of statutory license that someone could pay and be free to make derivative use of clips like this? Did it really make sense that a follow-on creator would have to track down every artist, actor, director, musician, and get explicit permission from each? Wouldn't a lot more be created if the legal part of the creative process could be made to be more clean?
Absolutely. I think that if there were some fair-licensing mechanism—where you weren't subject to hold-ups and you weren't subject to estranged former spouses—you'd see a lot more of this work, because it wouldn't be so daunting to try to put together a retrospective of someone's career and meaningfully illustrate it with lots of media from that person's career. You'd build in a cost as the producer of one of these things. You'd build in a cost of paying X dollars to the talent that performed. But it would be a known cost. That's the thing that trips everybody up and makes this kind of product hard to get off the ground. If you knew I have a hundred minutes of film in this product and it's going to cost me X, then you build your budget around it, and you can get investments and everything else that you need to produce it. But if you say, “Oh, I want a hundred minutes of something and I have no idea what it's going to cost me, and a certain number of people are going to hold me up for money,” then it becomes difficult to put one of these things together.
Alben worked for a big company. His company was backed by some of the richest investors in the world. He therefore had authority and access that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high?
These costs are the burdens of a kind of regulation. Put on a Republican hat for a moment, and get angry for a bit. The government defines the scope of these rights, and the scope defined determines how much it's going to cost to negotiate them. (Remember the idea that land runs to the heavens, and imagine the pilot purchasing fly- through rights as he negotiates to fly from Los Angeles to San Francisco.) These rights might well have once made sense; but as circumstances change, they make no sense at all. Or at least, a well-trained, regulation- minimizing Republican should look at the rights and ask, “Does this still make sense?”
I've seen the flash of recognition when people get this point, but only a few times. The first was at a conference of federal judges in California. The judges were gathered to discuss the emerging topic of cyber-law. I was asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an L.A. firm, introduced the panel with a video that he and a friend, Robert Fairbank, had produced.
The video was a brilliant collage of film from every period in the twentieth century, all framed around the idea of a 60 Minutes episode. The execution was perfect, down to the sixty-minute stopwatch. The judges loved every minute of it.
When the lights came up, I looked over to my copanelist, David Nimmer, perhaps the leading copyright scholar and practitioner in the nation. He had an astonished look on his face, as he peered across the room of over 250 well-entertained judges. Taking an ominous tone, he began his talk with a question: “Do you know how many federal laws were just violated in this room?”
For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the rights to these clips; technically, what they had done violated the law. Of course, it wasn't as if they or anyone were going to be prosecuted for this violation (the presence of 250 judges and a gaggle of federal marshals notwithstanding). But Nimmer was making an important point: A year before anyone would have heard of the word Napster, and two years before another member of our panel, David Boies, would defend Napster before the Ninth Circuit Court of Appeals, Nimmer was trying to get the judges to see that the law would not be friendly to the capacities that this technology would enable. Technology means you can now do amazing things easily; but you couldn't easily do them legally.

We live in a “cut and paste” culture enabled by technology. Anyone building a presentation knows the extraordinary freedom that the cut and paste architecture of the Internet created—in a second you can find just about any image you want; in another second, you can have it planted in your presentation.
But presentations are just a tiny beginning. Using the Internet and its archives, musicians are able to string together mixes of sound never before imagined; filmmakers are able to build movies out of clips on computers around the world. An extraordinary site in Sweden takes images of politicians and blends them with music to create biting political commentary. A site called Camp Chaos has produced some of the most biting criticism of the record industry that there is through the mixing of Flash! and music.
All of these creations are technically illegal. Even if the creators wanted to be “legal,” the cost of complying with the law is impossibly high. Therefore, for the law-abiding sorts, a wealth of creativity is never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released.
To some, these stories suggest a solution: Let's alter the mix of rights so that people are free to build upon our culture. Free to add or mix as they see fit. We could even make this change without necessarily requiring that the “free” use be free as in “free beer.” Instead, the system could simply make it easy for follow-on creators to compensate artists without requiring an army of lawyers to come along: a rule, for example, that says “the royalty owed the copyright owner of an unregistered work for the derivative reuse of his work will be a flat 1 percent of net revenues, to be held in escrow for the copyright owner.” Under this rule, the copyright owner could benefit from some royalty, but he would not have the benefit of a full property right (meaning the right to name his own price) unless he registers the work.
Who could possibly object to this? And what reason would there be for objecting? We're talking about work that is not now being made; which if made, under this plan, would produce new income for artists. What reason would anyone have to oppose it?
In February 2003, DreamWorks studios announced an agreement with Mike Myers, the comic genius of Saturday Night Live and Austin Powers. According to the announcement, Myers and DreamWorks would work together to form a “unique filmmaking pact.” Under the agreement, DreamWorks “will acquire the rights to existing motion picture hits and classics, write new storylines and—with the use of state- of-the-art digital technology—insert Myers and other actors into the film, thereby creating an entirely new piece of entertainment.”
The announcement called this “film sampling.” As Myers explained, “Film Sampling is an exciting way to put an original spin on existing films and allow audiences to see old movies in a new light. Rap artists have been doing this for years with music and now we are able to take that same concept and apply it to film.” Steven Spielberg is quoted as saying, “If anyone can create a way to bring old films to new audiences, it is Mike.”
Spielberg is right. Film sampling by Myers will be brilliant. But if you don't think about it, you might miss the truly astonishing point about this announcement. As the vast majority of our film heritage remains under copyright, the real meaning of the DreamWorks announcement is just this: It is Mike Myers and only Mike Myers who is free to sample. Any general freedom to build upon the film archive of our culture, a freedom in other contexts presumed for us all, is now a privilege reserved for the funny and famous—and presumably rich.
This privilege becomes reserved for two sorts of reasons. The first continues the story of the last chapter: the vagueness of “fair use.” Much of “sampling” should be considered “fair use.” But few would rely upon so weak a doctrine to create. That leads to the second reason that the privilege is reserved for the few: The costs of negotiating the legal rights for the creative reuse of content are astronomically high. These costs mirror the costs with fair use: You either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don't have to rely upon fair use rights. Either way, the creative process is a process of paying lawyers—again a privilege, or perhaps a curse, reserved for the few.
中文（繁体/简体)
　
1993年, 亚历克斯.奥尔本在一家名为星浪(Starwave, Inc)的公司担任律师,这是一家致力于开拓数字娱乐的创新型公司,由微软公司(Microsoft)的创始人之一保罗•艾伦(Paul Allen )创办.早在国际互联网兴起之前,星浪公司就预见到网络的威力,开始大力投资新技术进军娱乐产业.

奥尔本一直对新科技有着特殊的兴趣.他曾一度为CD-ROM技术所激发的新兴市场而激动万分---(这样)不仅仅是分发电影，而可以围绕电影做一些其他方法非常难以做到的事情.1993年,他主动着手(首次?)开发了一种产品,(该产品)可以回顾某个特定演员的过往作品.(?不太顺口哦)首个被选定的对象是克林特•伊斯特伍德,把他的所有作品一一展示出来,包括他参演电影的摘录,和被认为在他职业生涯里至关重要的访谈.

其时,伊斯特伍德身兼演员和导演,拍摄了有超过50部电影.奥尔本为此围绕他的演艺生涯对他做了个系列采访.因为星浪公司可以据此加工这些访谈,刻录在CD里免费使用.

当然,一个单纯的访谈并不让人觉得有趣,所以星浪公司打算从伊斯特伍德参演过的影片里选出海报、剧本以及其他有关其电影的材料为其加点“料”.伊斯特伍德在华纳兄弟公司度过了他的大部分演艺生涯,取得内容(版权)许可也因此相对容易多了.
接下来奥尔本和他的团队决定把现有电影剪辑也加进去."我们的目标是想为伊斯特伍德的所有电影都做个剪辑",奥尔本告诉我.但显然这正是问题所在."之前没有人真正做过这类事情",他解释着,"也没有人尝试着顺着这个方向为演员的演艺生涯作一个艺术性的回顾."

奥尔本把他的想法告诉了公司的首席执行官迈克尔·斯兰德,斯兰德有点怀疑:"哦,那它会给我们带来什么好处呢?"(这样理解?)

奥尔本回答道:"我们将不得不向这些影片中出现的每一个人,以及在这些影片中我们想要使用的音乐和其它所有内容取得版权许可."斯兰德回答:"太好了,我们应该去争取!"

然而问题在于奥尔本和斯兰德谁也不知道澄清版权将意味着什么.如果影片被再作他用,这些影片中的演员们都该有权利得到版税.但CDROMs和演员之间并没有特定的合同(约束),所以对星浪公司来说,事情变得有些棘手起来.

我问奥尔本最后如何解决了这个问题.尽管被他的奇特经历光环所掩盖,奥尔本流露出对自身能力显而易见的自豪,他开始讲述解决此事的过程.

所以我们非常机械地开始着手查询这些电影剪辑.我们从艺术角度考虑哪些电影剪辑应该被采用---当然我们将会采用来自《肮脏的哈里》中的“Make my day”专辑。但接着你必须联络到影片中扮演被枪指着而颤抖角色的那个家伙并得到他的许可，然后你必须决定你将给以他什么报酬。

我们决定按日计算报酬给他们，作为再次使用他们表演内容的权利，这样应该会合理些。我们意在用小于一分钟的片段,然而在CD-ROM采用如此短时间的小片段大概价格也在600美元左右。

所以我们不得不确认出片中人物，因为在伊斯特伍德的电影中有些演员你是很难识别的，比如你不能辨别究竟是哪个家伙在扮演冲破玻璃的角色---是演员自己还是替身呢？接着我们组建了一个工作团队，其中包括我的助手，然后我们开始召集人马。

一些演员很乐意帮忙，如唐纳德·萨瑟兰，他确保他的版权问题妥善处理即可。而有些演员则对他们的报酬感到惊讶,奥尔本问他们，“嗨!我将每部支付你 们600美元，也就是说在两部电影中是1200美元，怎么样？”他们感到很意外，“你不是开玩笑吧？呵，如果那样我很乐意接受。”当然其中的过程也有点麻 烦，如处理？？前妻，？？但最终，奥尔本和他的团队在这张回顾克林特•伊斯特伍德电影剪辑的CD-ROM上明晰了版权问题。

这个过程持续了一年---“尽管那样我们还是不敢确定我们是是否完全解决了（版权问题）。”

奥尔本显然很自豪自己的成果。据他所知，如此一个制作记录片的重大项目由一个团队的形式来承担，同时也是第一次尝试。

人们往往会认为这个工作很棘手，他们束手无策在干着急，“哟，天哪，一部电影，牵涉到那么多版权，有音乐的，有剧本的，有导演的，还有演员的。”然 而我们最终都解决了这些问题。我们只是将不同的要素归类，“嗨!这一类是演员，这类是导演...这类是音乐制作人，”这样我们有条理地分门别类，解决了版 权问题。

当然毫无疑问，我们的产品最后获得了好评。伊斯特伍德对其赞口不绝，销量也非常好。
但我不得不提醒奥尔本一点，仅仅在解决版权问题上就花费一年的时间在旁人看来是很不可思议的。当然无须质疑奥尔本工作的效率，然而正如彼得·杜拉 克所说的那句著名的讽语，“在无用的事情上下功夫是最没有意义的做法。”我问奥尔本，那么这个工作作为解决新问题的必由之路，它本身有意义么？

正如他自己承认，“我们在此问题上缺乏时间和资源，还有做事情的决心”，即便如此，许多类似的工作还是有可能完成的。“你是如此费劲地去为这些片段剪辑理清版权，那么在那些拥有初始版权的人的看来，这些工作有意义么？”我问道。

我不认为那是有意义的。当一个演员在一部电影里扮演某个角色，他/她得到的回报是非常可观的。但是当把仅30秒的表演片段用在某个？上，我不赞同饰演该片段的人应该得到报酬。

或者至少（应该明白），这些演员该以怎么样的方式得到报酬？（这种方式）在道理上说的通么，有类似的法律条文规定某人必须为制作免费的电影剪辑而付 费么，而这些剪辑是派生出来的？而对于（影片的）再创作者，有必要一一去追踪涉及到的每一个艺术家、演员、导演、音乐人并获得他们的许可么？如果合法的创 作过程能够被定义的更加清楚，难道保不准我们会得到更多的意外收获么？

答案是显而易见的。如果有一个公平的授权机制--其中你不用........？？？---你会最终从该机制中受益，因为它使人在从事诸如

奥尔本在一家大公司任职，该公司有着这个世界上最强大的财力支持。他也因此获得普通网络设计师（？）所没有的权威和通路。所以我们应该明白，奥尔本为此花了一年，换作他人，又该要用多久呢？而因为要承受如此巨大的理清版权的成本开支，又有多少创意被扼杀了呢？

这些成本是一种规则的负担。被扣上一顶共和党员帽子一会半歇, 而后为此略感生气。 政府定义这些权利的范围，而被定义的范围又决定它将要耗费多少去协商。 (*****)。 这些权利可能曾经有意义 ;但是随着环境改变，他们变的完全没有意义起来。 或至少,一位训练有序,?才共和党员应该指着这些权利问,"这依旧有意义么?”

我曾见到有人意识到这一点，寥寥数次。第一次是在加州的联邦法官会议上，他们聚在一起讨论网络法的问题。我也被邀请出席。来自洛山基的德高望重的律师Harvey Saferstein向会议团展示了一盘由他和他的朋友Robert Fairbank制作的录像带。

这盘录像带巧妙的集合了20世纪各个时期的电影，这些影片大概都是60分钟长度。这个作品十分完美，时间精确的掐在60分钟。法官们对每一分钟都很赞赏。

当灯亮起来，我环顾四座。发现David Nimmer他看了看屋子里250多位娱兴正浓的法官，面带惊讶。他是国内首屈一指的版权研究者和从业者，用一种冷冷的语气问道：“你们知道么，在这间房子里刚才有多少条联邦法律被触犯？”

显然，这两位天才电影制作人没有做到像Alben那样，用一年的时间来清理关于资料影片版权的问题。因此，原则上他们违反了法律。而显然，看起来他 们并不会因此而受到法律的制裁（至少到场的250多为法官和联邦司法官员似乎并没有在意）。但是Nimmer指出很重要的一点：一年以前，大概每个人都听 说过Napster。两年前，会议团的另一个成员David Boies，还试图为Napster辩护，想打赢Ninth Circuit Court of Appeals的官司。Nimmer是想让法官们明白，法律并不会让技术肆意妄为。技术的含义是你能轻而易举地创造奇迹；但是如果在法律的规范下，做到它 就不那么容易了。

我们生活在一个“复制粘贴”的文化里，技术造就了这一切。做过投影演示的人都知道，复制粘贴有如建筑艺术在互联网里为我们建造了多么宽广的自由空间 －－ 一秒之内你就能获得你想要的图片；再一秒，你就能把它编进演示文稿里面。

然而，制作投影演示仅仅是小小的开始。使用互联网及其文件库，音乐家能够混合出从未听到过的旋律；电影人可以从网络世界电影仓库里剪辑出自己的作 品。瑞士的一家网站甚至将政治家的画面配上音乐，来制造尖锐的政治评论。一个叫做Camp Chaos（混乱营地）的网站就通过音乐Flash动画尖刻地批评唱片业。

这些作品都是非法的。就算制作者尽量做到“合法”，为了与法律取得一直所付出地代价也是及其昂贵的。因此，那些循规蹈矩的，一般都赚不到钱。而不理版权问题，这些作品又不能发表。

对某些人，这些例子可以推出一个结论：我们需要修订版权作品混合条例，让人们获得在文化的基础上进行创作的自由，免费的添加或者混合，只要他们认为 合适。要做这种变化，我们甚至可以不必要求这个“免费”和“免费啤酒”中的免费一样。这种制度将会为二度创作者放宽尺度，他们不必请一大堆律师来为侵权赔 偿辩护：比如，其中一条可以这样，“未经注册的作品如果被再度创作，再创作者统一按规定抽取年收入的1％，作为版税付给原作者并写入合同”。在这个规定 下，原作版权所有者可以从某些版税中获益，但是，如果他没有为自己的作品注册，他将不能享受到完全的产权（自己定价的权利）。

谁会反对这种意见呢？反对的理由？我们所谈的作品不是正在制作中的作品；这些作品假定已经做出来，他们还会为原作者带来新的利润。何乐而不为呢？

2003年2月，梦工厂宣布了与Saturday Night Live和Austin Powers的演员Mike Myers的一项和约，和约说，Myers同梦工厂合作“制定一个独特的电影制作合同”。在这个合同下，梦工厂“将获得时下风行的和经典电影的改编权，撰 写新的剧本 －－ 并使用state- of-the-art数码技术－－ 并将Myers和其他演员插入影片中，从而创作出新的影视作品。”

和约中把这种做法称为“影片采样”。Myers解释，“影片采样很棒，它将原创的片断加入到更加精彩的电影里，让观众享受老片新看的乐趣。Rap歌 手在音乐上已经这样做了很久，现在我们只是借用一些概念再将它们运用到电影中来。”导演斯匹尔博格说“如果有谁能够创造一种让老片赢得新观众的方式，那一 定是Mike。”

斯匹尔博格是对的。Myers对影片采样的描述十分巧妙。但是如果你不细想，你将会忽略调这个声明很惊人的一点。在我们大部分的电影遗产还在版权保 护之下的时候，梦工厂的声明着名这样一个真是意图：Mike Myers是免费采样的，也只有Mike Myers是免费的。任何建立在我们的文化和电影资料库之上的自由（这种自由在别的前提下对我们大家都是适用的）在此，仅仅只是一种特权，供这些滑稽的出 名的 －－应该十分富有的人所享用。

这种特权的保有出于两种原因。第一个就是上一章所讲到的故事：“公平使用”（fair use）的模糊概念。“采样”很大程度上可以看作“公平使用”（fair use）。但是很少有人会依赖这个弱质的理论。因而出现第二个原因为什么这种特权为少数人所有：为合法再度使用原创作品而进行的谈判会耗费惊人的开支。这 些开销等同与公平使用（fair use）所需的花费：你要么雇佣律师为你获得公平使用的权利，要么让律师为你争取作者的默许，从而不必理会公平使用权利。无论如何，这个创作过程就是在律 师身上花钱的过程 －－ 同时也是一种少数人的特权，也许是一个祸根。

Chapter 8: Transformers(变革者(简体),Tranlsator: topku,lyell;Reviewer: Owen;)

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CHAPTER NINE: Collectors
In April 1996, millions of “bots”—computer codes designed to “spider,” or automatically search the Internet and copy content—began running across the Net. Page by page, these bots copied Internet-based information onto a small set of computers located in a basement in San Francisco's Presidio. Once the bots finished the whole of the Internet, they started again. Over and over again, once every two months, these bits of code took copies of the Internet and stored them.
By October 2001, the bots had collected more than five years of copies. And at a small announcement in Berkeley, California, the archive that these copies created, the Internet Archive, was opened to the world. Using a technology called “the Way Back Machine,” you could enter a Web page, and see all of its copies going back to 1996, as well as when those pages changed.
This is the thing about the Internet that Orwell would have appreciated. In the dystopia described in 1984, old newspapers were constantly updated to assure that the current view of the world, approved of by the government, was not contradicted by previous news reports. Thousands of workers constantly reedited the past, meaning there was no way ever to know whether the story you were reading today was the story that was printed on the date published on the paper.
It's the same with the Internet. If you go to a Web page today, there's no way for you to know whether the content you are reading is the same as the content you read before. The page may seem the same, but the content could easily be different. The Internet is Orwell's library—constantly updated, without any reliable memory.
Until the Way Back Machine, at least. With the Way Back Machine, and the Internet Archive underlying it, you can see what the Internet was. You have the power to see what you remember. More importantly, perhaps, you also have the power to find what you don't remember and what others might prefer you forget.1
We take it for granted that we can go back to see what we remember reading. Think about newspapers. If you wanted to study the reaction of your hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's water cannon in 1963, you could go to your public library and look at the newspapers. Those papers probably exist on microfiche. If you're lucky, they exist in paper, too. Either way, you are free, using a library, to go back and remember—not just what it is convenient to remember, but remember something close to the truth.
It is said that those who fail to remember history are doomed to repeat it.That's not quite correct. We all forget history.The key is whether we have a way to go back to rediscover what we forget. More directly, the key is whether an objective past can keep us honest. Libraries help do that, by collecting content and keeping it, for schoolchildren, for researchers, for grandma. A free society presumes this knowedge.
The Internet was an exception to this presumption. Until the Internet Archive, there was no way to go back. The Internet was the quintessentially transitory medium. And yet, as it becomes more important in forming and reforming society, it becomes more and more important to maintain in some historical form. It's just bizarre to think that we have scads of archives of newspapers from tiny towns around the world, yet there is but one copy of the Internet—the one kept by the Internet Archive.
Brewster Kahle is the founder of the Internet Archive. He was a very successful Internet entrepreneur after he was a successful computer researcher. In the 1990s, Kahle decided he had had enough business success. It was time to become a different kind of success. So he launched a series of projects designed to archive human knowledge. The Internet Archive was just the first of the projects of this Andrew Carnegie of the Internet. By December of 2002, the archive had over 10 billion pages, and it was growing at about a billion pages a month.
The Way Back Machine is the largest archive of human knowledge in human history. At the end of 2002, it held “two hundred and thirty terabytes of material”—and was “ten times larger than the Library of Congress.” And this was just the first of the archives that Kahle set out to build. In addition to the Internet Archive, Kahle has been constructing the Television Archive. Television, it turns out, is even more ephemeral than the Internet. While much of twentieth-century culture was constructed through television, only a tiny proportion of that culture is available for anyone to see today. Three hours of news are recorded each evening by Vanderbilt University—thanks to a specific exemption in the copyright law.That content is indexed, and is available to scholars for a very low fee. “But other than that, [television] is almost unavailable,” Kahle told me. “If you were Barbara Walters you could get access to [the archives], but if you are just a graduate student?” As Kahle put it,
Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician interacting with a fictional television character? If you were a graduate student wanting to study that, and you wanted to get those original back and forth exchanges between the two, the 60 Minutes episode that came out after it . . . it would be almost impossible. . . . Those materials are almost unfindable. . . .
Why is that? Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is recorded on videotape is not? How is it that we've created a world where researchers trying to understand the effect of media on nineteenth- century America will have an easier time than researchers trying to understand the effect of media on twentieth-century America?
In part, this is because of the law. Early in American copyright law, copyright owners were required to deposit copies of their work in libraries. These copies were intended both to facilitate the spread of knowledge and to assure that a copy of the work would be around once the copyright expired, so that others might access and copy the work.
These rules applied to film as well. But in 1915, the Library of Congress made an exception for film. Film could be copyrighted so long as such deposits were made. But the filmmaker was then allowed to borrow back the deposits—for an unlimited time at no cost. In 1915 alone, there were more than 5,475 films deposited and “borrowed back.” Thus, when the copyrights to films expire, there is no copy held by any library. The copy exists—if it exists at all—in the library archive of the film company.2
The same is generally true about television. Television broadcasts were originally not copyrighted—there was no way to capture the broadcasts, so there was no fear of “theft.” But as technology enabled capturing, broadcasters relied increasingly upon the law. The law required they make a copy of each broadcast for the work to be “copy-righted.” But those copies were simply kept by the broadcasters. No library had any right to them; the government didn't demand them. The content of this part of American culture is practically invisible to anyone who would look.
Kahle was eager to correct this. Before September 11, 2001, he and his allies had started capturing television. They selected twenty stations from around the world and hit the Record button. After September 11, Kahle, working with dozens of others, selected twenty stations from around the world and, beginning October 11, 2001, made their coverage during the week of September 11 available free on-line. Anyone could see how news reports from around the world covered the events of that day.
Kahle had the same idea with film. Working with Rick Prelinger, whose archive of film includes close to 45,000 “ephemeral films” (meaning films other than Hollywood movies, films that were never copyrighted), Kahle established the Movie Archive. Prelinger let Kahle digitize 1,300 films in this archive and post those films on the Internet to be downloaded for free. Prelinger's is a for-profit company. It sells copies of these films as stock footage. What he has discovered is that after he made a significant chunk available for free, his stock footage sales went up dramatically. People could easily find the material they wanted to use. Some downloaded that material and made films on their own. Others purchased copies to enable other films to be made. Either way, the archive enabled access to this important part of our culture. Want to see a copy of the “Duck and Cover” film that instructed children how to save themselves in the middle of nuclear attack? Go to archive.org, and you can download the film in a few minutes—for free.
Here again, Kahle is providing access to a part of our culture that we otherwise could not get easily, if at all. It is yet another part of what defines the twentieth century that we have lost to history. The law doesn't require these copies to be kept by anyone, or to be deposited in an archive by anyone. Therefore, there is no simple way to find them.
The key here is access, not price. Kahle wants to enable free access to this content, but he also wants to enable others to sell access to it. His aim is to ensure competition in access to this important part of our culture. Not during the commercial life of a bit of creative property, but during a second life that all creative property has—a noncommercial life.
For here is an idea that we should more clearly recognize. Every bit of creative property goes through different “lives.” In its first life, if the creator is lucky, the content is sold. In such cases the commercial market is successful for the creator. The vast majority of creative property doesn't enjoy such success, but some clearly does. For that content, commercial life is extremely important. Without this commercial market, there would be, many argue, much less creativity.
After the commercial life of creative property has ended, our tradition has always supported a second life as well. A newspaper delivers the news every day to the doorsteps of America. The very next day, it is used to wrap fish or to fill boxes with fragile gifts or to build an archive of knowledge about our history. In this second life, the content can continue to inform even if that information is no longer sold.
The same has always been true about books. A book goes out of print very quickly (the average today is after about a year3). After it is out of print, it can be sold in used book stores without the copyright owner getting anything and stored in libraries, where many get to read the book, also for free. Used book stores and libraries are thus the second life of a book. That second life is extremely important to the spread and stability of culture.
Yet increasingly, any assumption about a stable second life for creative property does not hold true with the most important components of popular culture in the twentieth and twenty-first centuries. For these—television, movies, music, radio, the Internet—there is no guarantee of a second life. For these sorts of culture, it is as if we've replaced libraries with Barnes & Noble superstores. With this culture, what's accessible is nothing but what a certain limited market demands. Beyond that, culture disappears.
For most of the twentieth century, it was economics that made this so. It would have been insanely expensive to collect and make accessible all television and film and music: The cost of analog copies is extraordinarily high. So even though the law in principle would have restricted the ability of a Brewster Kahle to copy culture generally, the real restriction was economics. The market made it impossibly difficult to do anything about this ephemeral culture; the law had little practical effect.
Perhaps the single most important feature of the digital revolution is that for the first time since the Library of Alexandria, it is feasible to imagine constructing archives that hold all culture produced or distributed publicly. Technology makes it possible to imagine an archive of all books published, and increasingly makes it possible to imagine an archive of all moving images and sound.
The scale of this potential archive is something we've never imagined before. The Brewster Kahles of our history have dreamed about it; but we are for the first time at a point where that dream is possible. As Kahle describes,
It looks like there's about two to three million recordings of music. Ever. There are about a hundred thousand theatrical releases of movies, . . . and about one to two million movies [distributed] during the twentieth century. There are about twenty-six million different titles of books. All of these would fit on computers that would fit in this room and be able to be afforded by a small company. So we're at a turning point in our history. Universal access is the goal. And the opportunity of leading a different life, based on this, is . . . thrilling. It could be one of the things humankind would be most proud of. Up there with the Library of Alexandria, putting a man on the moon, and the invention of the printing press.
Kahle is not the only librarian. The Internet Archive is not the only archive. But Kahle and the Internet Archive suggest what the future of libraries or archives could be. When the commercial life of creative property ends, I don't know. But it does. And whenever it does, Kahle and his archive hint at a world where this knowledge, and culture, remains perpetually available. Some will draw upon it to understand it; some to criticize it. Some will use it, as Walt Disney did, to re-create the past for the future. These technologies promise something that had become unimaginable for much of our past—a future for our past. The technology of digital arts could make the dream of the Library of Alexandria real again.
Technologists have thus removed the economic costs of building such an archive. But lawyers' costs remain. For as much as we might like to call these “archives,” as warm as the idea of a “library” might seem, the “content” that is collected in these digital spaces is also some-one's “property.” And the law of property restricts the freedoms that Kahle and others would exercise.
第九章 收集者
1996年四月，数百万的“波特(bot)” –为“网罗“，或者说自动搜索并存储互联网网页内容而设计的计算机程序-开始在网络上运行。页复一页，这些“波特” 将基於互联网的信息复制到位於旧金山普勒西帝奥(Presidio)的一小批计算机上。每当他们完成一次对全部互联网页的复制，这些“波特” 就重新开始。周而复始，每两个月，这些程序复制并存储互联网一次。
到2001年10月为止，“波特” 已经收集了5年多的网页副本。在加州伯克利一个小规模的通告中说明：这些副本所构成的档案，互联网档案 (Internet Archive)，向世界开放。利用一种被称之为“返程机器(the Way Back Machine)” 的技术，你可以进入一个网页，浏览从1996年以来这个网页的所有副本，以及网页被修改的时间。
跟互联网相关的事件中，奥维尔(Orwell)应该会对这一件赞许有加。据他在<< 1984>>一书中对反理想国的描述，旧报纸被持续不断的更新以保障当下世界流行的观点，即被政府首肯的观点，不会与以前的新闻报导相悖。数 以千计的工人们持续不断的重新修订着过去，意味着我们无从考据今天看到的故事与当年印刷发行的新闻是否一致。
互联网存在着同样的问题。今天打开一个网页，你无从知晓现在读到的内容和你以前看到的是否相同。网页看起来没变，但是内容却可以轻易的被改变。互联网恰如奥维尔书中提到的图书馆—持续不断的更新，缺乏可靠的回忆。
直到“返程机器”(至少是借助于“返程机器” )和它的基础互联网档案的发明，你才能够看到过去的互联网是个什么样子。你才有权力去浏览你所记忆的信息。更为重要的是，或许，你还有权力去发现那些你并没记忆而恰恰有某些人渴望你遗忘的信息。
我们可以回顾自己曾经阅读的东西，这似乎已成为常识。以报纸为例，如果你想研究家乡报纸对1965年发生于华兹的种族暴动，或者1963年“公牛” 康纳的高压水龙头的反应，你可以去当地的公共图书馆直接查看当时的报纸。那些报纸可能以缩影胶片的形式保存。如果你够幸运，没准还能找到那些报纸。不管通 过哪种方式，你可以自由的使用图书馆来回到过去开始记忆—不仅仅是那些便於记忆的，而是更为贴近真实的内容。
有种说法，忘记历史的人注定要去重复历史。这话不完全准确。我们所有人都在忘记历史。关键是我们是否掌握一种回去重新发现那些被我们遗忘事件的方法。更直接的说，关键在於有没有一个客观存在的过去事实来保证我们是诚实的。图书馆通过为学校的孩子，为研究专家，为老奶奶搜集保存资料来实现这一过程。一个自由社会应该具备这样的知识。
互联网是这个假定的一个例外。在互联网档案实现以前，我们无法回头查询。互联网本质上是种瞬时性的媒体。不过，当它在社会的建立和重建过程中的左右越来越重要时，保存网络的历史本来面目也变得日渐重要。难道这不奇怪么？我们在世界的各个角落有数不胜数的报纸存档，却仅仅由互联网档案保存了唯一的一份互联网的副本。
布鲁斯特•卡尔(Brewster Kahle)是互联网档案的发起人。他在成为一位成功的计算机科研人员以后，进而成为一位成功的 互联网企业家。在1990年左右，卡尔感到他的商业已经很成功，是去尝试一些其他领域成功的时候了。因此，他发起了一系列对人类的知识进行存档的项目。而 互联网档案不过是他庞大的互联网图书馆中第一个项目。到2002年12月为止，副本已达100亿个页面，同时以每个月10亿页的速度递增。
“返程机器”可算历史上对人类所掌握的知识一次最大的存档。截至2002年底，它已经达到“230兆字节”— 大概“超出国会图书馆馆藏10倍” 。而这不过是卡尔计划的档案中的第一个部分。除了互联网档案，卡尔还作过电视档案。事实证明，电视比互联网还要稍纵即逝。尽管大部分二十世纪文化的建立曾 借助于电视媒体，仅有极小部分向今天的大众开放。感谢产权保护法中一个极其具体的规定，范德比尔特大学得以实现每天晚上录制3个小时新闻节目的计划。录制 的内容被编制索引，研究学者可以付少量费用来查看。“但是除了那些，(电视) 几乎无从触及，” 卡尔向我表示，“如果你是芭芭拉•华尔兹(Barbara Walters，美国资深新闻工作者) ，你可以接触到(那些电视档案) ，但是，如果你不过是个研究生怎么办？”
你还记得丹•奎尔(Dan Quayle)什么时候跟墨非•布朗(Murphy Brown)联袂的么？还记得那些政治家跟一个虚构的电视角色交叉互动的眩目情景么？如果你是个打算学习这一幕的研究生，想获得最初的那段交叉互动片段， 或是紧随其后的60分钟影片……这基本上是不可能的……那些材料几乎是不可能被发现的。
为什么这种情况会发生？为什么被记录于报纸上的那段文化仍然可以随时随地被查询，而记录在录影带上的就不行？？我们怎么会建立起这样一个世界：试图了解媒体对於19世纪美国影响的研究比20世纪的研究的要轻易的多？？？
从某种意思上说，这是因为法律。在美国产权保护法的早期，产权拥有者被要求将他们的副本存放于图书馆中。这项条例用意不仅在于保证知识的传播，更保证了在产权过期以后，仍有副本存在，以便於其他人阅读或复制。
这些条例原本同样适用于电影。但是在1915年，国会图书馆对电影作出了一项特殊规定。只要图书馆存有副本，电影就有产权。但是电影制作者同时被允 许从图书馆将副本免费并且无期限的借回。仅1915年一年，就有超过5475部电影被送交副本然后“借回” 。因此，当这些电影的产权到期以后，图书馆中不再存有任何副本。那些副本存在于—如果存在的话—电影公司的馆藏之中。
电视基本上也是如此。电视播放之初是没有版权的—根本没有截取电视播放的手段，也就不必担心电视播放被“盗窃” 。但当相关技术成熟到可以录像以后，电视播放开始逐渐依赖于法律的约束。法律要求他们对享有产权的作品作副本。可是这些副本还是把持在电视发行公司手中。 图书馆对这些副本没有保存的权利，政府没要求这个。这一段美国文化的内容对任何想了解的人而言都是不可见得了。
卡尔致力于纠正这一错误。在2001年9月11日以前，他和他的合作者已经开始截取电视节目。他们在全球范围内选取了20家电视台，开始录像。在 911以后，卡尔同众多合作者一起在全球范围哪选区20家电视台，从2001年10月11日起，将他们在911那一周内的新闻报导免费的在网上发布。任何 人都可以看到世界某处是如何报导那一天的事件的。
卡尔想对电影采取同样的措施。在同里克•普瑞林格(Rick Prelinger)合作下，卡尔建立了“电影档案” 。普瑞林格的电影收藏包括大概45000部“短片” (指那些非好莱坞制作的从来没有版权的电影) 。他让卡尔将自己收藏中的1300部电影数字化，然后上传到网络上供人免费下载。普瑞林格的公司是营利性的，主要是将那些电影收藏的拷贝作为“底片材料 (stock footage)” 出售。普瑞林格发现，在他制作一大批免费拷贝以后，他的“底片材料” 生意变得出人意料的好。人们可以方便的发现他们他们希望实用的材料。有些人下载那些短片，同时进行自己的创作。另外一些人购买拷贝，来制作其他的电影。不 管采取哪种方式，这些档案让大众有机会接触到我们文化中这个重要的组成部分。想观看一份教孩子们如何在核袭击中保护自己的电影<<鸭子和遮蔽 >>的拷贝么？直接去archive.org, 你可以在几分钟之内下载这部电影—免费。

Chapter 9: Collectors(蒐集家(繁體), Tranlsator: acer;搜集者(简体)Tranlsator:Sharco, Owen ;Reviewers:N/A;)