if it has the absolute right to veto distribution that it can't control, then it can
strike deals with companies offering distribution that won't threaten the la-
bels' power. The courts, whether rightly or not, have handed the labels this
veto power; Congress, if it weren't flustered by the emotion of the recording
industry, could well intervene to strike a very different balance.

We find that balance by looking for a balance -- not by giving copyright
interests a veto over how new technologies will develop. We discover what
best serves both interests by allowing experimentation and alternatives.

But this is not how the law is treating copyright interests just now. Instead,
they are in effect getting more control over copyright in cyberspace than
they had in real space, even though the need for more control is less clear.
We are locking down the content layer and handing over the keys to Holly-
wood.

The costs of this lockdown are great enough without the Internet; the
Internet makes them much more significant. Before the Internet, as I de-
scribed in Chapter 7, production was concentrated in the hands of the
few. With the Internet, this production could be widespread. But to the
extent that content remains controlled, to the extent the Alice Randalls
or Eric Eldreds must seek permission to use or build upon other as-
pects of our culture, these controls create barriers to new creativity. They
block the potential for innovation, by adding protections for existing in-
terests.

///\\\

Okay, time for a politics check. I know what you're thinking: These are
just the ravings of a rampant leftist. But as writer Siva Vaidhyanathan argues,
"There is no 'left' or 'right' in debates over copyright. There are those who
favor 'thick' protection and those who prefer 'thin.'"[11-48] The argument in
favor of balance is not a liberal vs. conservative argument. The argument is
old vs. new.

The credentials of at least some conservatives in this debate cannot be
questioned. Circuit judge Richard Posner -- father of much in law and eco-
nomics, and perhaps the most prolific and influential judge of the last
hundred years -- has written persuasively about the complexity in finding
balance in copyright law. As I've described, the property right of copyright is
incomplete. As Posner writes:

____ Since the property right is incomplete, one might suppose that literature is
____ being underproduced and therefore copyright protection should be ex-

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v?