by
Lawrence Lessig
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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 im-
portant 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 nineteenthcentury
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 "copyrighted." 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 sta-
tions 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 year [3]). 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.
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