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Notes to pages 56–64
6. “As the entertainment and information markets have gotten more complicated, the
copyright law has gotten longer, more specific, and harder to understand. Neither book
publishers nor libraries have any interest in making the library privilege broad enough
so that it would be useful to users that aren’t libraries, and neither movie studios nor
broadcast stations have any interest in making the broadcaster’s privilege broad enough
to be of some use to say, cable television or satellite TV, so that doesn’t happen. Negotiated
privileges tend to be very specific, and tend to pose substantial entry barriers to
outsiders who can’t be at the negotiating table because their industries haven’t been invented
yet. So negotiated copyright statutes have tended, throughout the century, to be
kind to the entrenched status quo and hostile to upstart new industries.” Litman, Digital
Copyright, 25.
7. Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560, 561) (1996).
8. Reno v. ACLU, 521 U.S. 844 (1997).
9. James Boyle, “Overregulating the Internet,” Washington Times (November 14, 1995),
A17.
10. See James Boyle, “The One Thing Government Officials Can’t Do Is Threaten Their
Critics,” Washington Times (March 6, 1996), A16.
11. “The DFC was forged in 1995 in response to the release of the Clinton administration’s
White Paper on Intellectual Property and the National Information Infrastructure. The
White Paper recommended significantly altering existing copyright law to increase the
security of ownership rights for creators of motion pictures, publishers and others in
the proprietary community. Members of the DFC recognized that if the policy proposals
delineated in the White Paper were implemented, educators, businesses, libraries,
consumers and others would be severely restricted in their efforts to take advantage of
the benefits of digital networks.” See http://www.dfc.org/dfc1/Learning_Center/about.
html.
12. See the classic account in Mancur Olson, The Logic of Collective Action: Public Goods
and the Theory of Groups, 2nd ed. (Cambridge, Mass.: Harvard University Press, 1971).
13. See note 2 above.
14. Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as amended in scattered sections of
17 and 18 U.S.C.).
15. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered sections of
17 U.S.C.).
16. S 2291, 105th Cong. (1998).
17. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
18. See Tina Balio, Museum of Broadcast Communications, “Betamax Case,” Encyclopedia
of TV (1997), available at http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/
betamaxcase.htm (“The Betamax case went all the way to the Supreme Court, which
reversed the appeals court decision on 17 January 1984. By 1986, VCRs had been installed
in fifty percent of American homes and annual videocassettes sales surpassed the
theatrical box-office.”). The year 1986 was also the peak of the video rental market:
“Video’s high mark, according to studies by A. C. Nielsen Media Research, was in late
1986, when an estimated 34.3 million households with VCR’s took home 111.9 million
cassettes a month, or an average of 3.26 movies per household.” Peter M. Nichols,