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notes to chapter ten

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57. See Olmstead v. United States 277 US 438, 474 (1928) (Justice Louis Brandeis dissenting: Can it be that the Constitution affords no protection against such invasions of individual
security?).
58. See Jessica Litman, The Exclusive Right to Read, Cardozo Arts and Entertainment Law
Journal 13 (1994): 29.
59. See Dan Hunter and F. Gregory Lastowka, Amateur-to-Amateur, William and Mary
Law Review 46 (December 2004): 951, 102627.
60. Lasica, Darknet: Hollywoods War Against the Digital Generation 18. (The director of
MITs Comparative Media Studies Program and author of nine books on popular culture,
[Henry] Jenkins says that from an early age, children reimagine what you can do with characters and settings from movies and TV. They play video games that permit control over a character within limited boundaries. Newer games allow an even broader range of interactivity and
behaviors. When they get online, they can share stories, and children as young as seven are posting to fan fiction sites with simple but interesting stories about Harry Potter and Pokemon.)
61. Siva Vaidhyanathan, Remote Control: The Rise of Electronic Cultural Policy, Annals
of the American Academy of Political and Social Science 597, 1 (January 1, 2005): 126.
62. Lasica, Darknet: Hollywoods War Against the Digital Generation, 78, quoting Ernest
Miller.
63. From DJ Danger Mouse Web 2.0 Conference presentation Music Is a Platform, October 6, 2004, quoted in Lasica, Darknet: Hollywoods War Against the Digital Generation, 211.
64. See, for example, anime music videos, available at link #64.
65. Peter Huber relies explicitly on the high costs of control in his rebuttal to Orwells
1984; see Orwells Revenge: The 1984 Palimpsest (New York: Maxwell Macmillan International,
1994). But this is a weak basis on which to build liberty, especially as the cost of networked control drops. Frances Cairncross (The Death of Distance: How the Communications Revolution Will
Change Our Lives [Boston: Harvard Business School Press, 1997], 19495) effectively challenges
the idea as well.
66. Lessig, The Future of Ideas: The Fate of the Commons in a Connected World, 1923.
67. A founding work is David Lange, Recognizing the Public Domain, Law and Contemporary Problems 44 (1981): 147. There are many important foundations, however, to this argument. See, for example, Benjamin Kaplan, An Unhurried View of Copyright (New York:
Columbia University Press, 1967). Gordon (Fair Use as Market Failure) argues that the courts
should employ fair use to permit uncompensated transfers that the market is incapable of
effectuating; see also Wendy J. Gordon, On Owning Information: Intellectual Property and
Restitutionary Impulse, Virginia Law Review 78 (1992): 149. In Reality as Artifact: From Feist
to Fair Use (Law and Contemporary Problems 55 5PG [1992]: 93, 96), Gordon observes that,
while imaginative works are creative, they may also comprise facts, which need to be widely
available for public dissemination. Gordons Toward a Jurisprudence of Benefits: The Norms
of Copyright and the Problem of Private Censorship (University of Chicago Law Review 57
[1990]: 1009) is a discussion of the ability of copyright holders to deny access to critics and others; see also Wendy Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, Stanford Law Review 41 (1989): 1343.
68. In the first edition to this book, in addition to Boyle, I acknowledged broadly the
work that had informed my understanding, including Keith Aoki, Foreword to Innovation and
the Information Environment: Interrogating the Entrepreneur, Oregon Law Review 75 (1996):
1; in (Intellectual) Property and Sovereignty, Aoki discusses the challenges to the traditional
concept of property that arise from the growth of digital information technology; in Authors,
Inventors, and Trademark Owners: Private Intellectual Property and the Public Domain
(Columbia-VLA Journal of Law and the Arts 18 [1993]: 1), he observes the shifting boundaries
in intellectual property law between public and private realms of information and argues