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isolated from others. Think about an old man telling a story to a collection
of neighbors in a small town. Now imagine that same storytelling
extended across the globe.
Yet all this is possible only if the activity is presumptively legal. In
the current regime of legal regulation, it is not. Forget file sharing for
amoment. Think about your favorite amazing sites on the Net. Web
sites that offer plot summaries from forgotten television shows; sites
that catalog cartoons from the 1960s; sites that mix images and sound
to criticize politicians or businesses; sites that gather newspaper articles
on remote topics of science or culture.There is a vast amount of creative
work spread across the Internet. But as the law is currently crafted, this
work is presumptively illegal.
That presumption will increasingly chill creativity, as the examples
of extreme penalties for vague infringements continue to proliferate. It
is impossible to get a clear sense of what’s allowed and what’s not, and at
the same time, the penalties for crossing the line are astonishingly harsh.
The four students who were threatened by the RIAA (Jesse Jordan of
chapter 3 was just one) were threatened with a $98 billion lawsuit for
building search engines that permitted songs to be copied. Yet World-
Com—which defrauded investors of $11 billion, resulting in a loss to investors
in market capitalization of over $200 billion—received a fine of a
mere $750 million. 1 And under legislation being pushed in Congress
right now, a doctor who negligently removes the wrong leg in an operation
would be liable for no more than $250,000 in damages for pain and
suffering. 2 Can common sense recognize the absurdity in a world where
the maximum fine for downloading two songs off the Internet is more
than the fine for a doctor’s negligently butchering a patient?
The consequence of this legal uncertainty, tied to these extremely
high penalties, is that an extraordinary amount of creativity will either
never be exercised, or never be exercised in the open. We drive this creative
process underground by branding the modern-day Walt Disneys
“pirates.” We make it impossible for businesses to rely upon a public
domain, because the boundaries of the public domain are designed to
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