hydrarchist writes:

"The State of Copyright Activism"

Siva Vaidhyanathan

One of the great hopes I had while I researched and wrote Copyrights and Copywrongs (New York: New York University Press, 2001), a cultural history of American copyright, during the late 1990s was that copyright debates might puncture the bubble of public consciousness and become important global policy questions. My wish has come true.

Since 1998 questions about whether the United States has constructed an equitable or effective copyright system frequently appear on the pages of daily newspapers. Activist movements for both stronger and looser copyright systems have grown in volume and furor. And the U.S. Supreme Court ruled in early 2003 that the foundations of American copyright, as expressed in the Constitution, are barely relevant in an age in which both media companies and clever consumers enjoy unprecedented power over the use of works.

Introduction

In 1998 the U.S. Congress radically revised American copyright laws without much public scrutiny or protest. Copyright was too arcane, too technical, too boring, to break through the headlines about political sex scandals and celebrity murder trials. With the Sonny Bono Copyright Term Extension Act and the Digital Millennium Copyright Act the United States abandoned 200 years of moderate, successful copyright traditions. Copyright used to balance the public’s interests and private needs. Now it only serves large, established copyright holders. Yet while Congress was considering these radical changes, newspapers rarely payed attention to the changes. Only in recent years, with the accumulation of horror stories about copyright abuses and bullying, have we seen sufficient attention paid. As a result, we are finally seeing critical mass of public interest activism.

Between the spring of 2001 and the winter of 2003 the following events kept copyright in the news:

• Eric Eldred, a World Wide Web publisher, found that his practice of publishing public domain works on the Internet is thwarted by Congress’ radical extension of the duration of protection for works created in the 1930s and after. After both a district court and an appeals court ruled that Eldred’s claim that the extension was unconstitutional (in violation of the requirement that copyright last "for limited times"), the Supreme Court considered the merits of his case in October 2002. Then, in January 2003, the Supreme Court ruled 7–2 to uphold the lower court ruling allowing the copyright term extension [1].
• The National Writers’ Union, led by their president Jonathan Tasini, won a landmark case before the U.S. Supreme Court in 2001. The Court ruled that freelance writers who had not explicitly assigned their rights to electronic versions of their work were due compensation from major newspapers and magazines that had sold these rights to electronic databases such as Lexis/Nexis and ProQuest. This case somewhat redressed the balance between creator and publisher in the copyright system, although in most media and in most fields the creator still operates from a very weak bargaining position [2].
• In the summer of 2001, a federal court issued an injunction against the publication of a novel by Alice Randall called The Wind Done Gone. This new novel was a revision and retelling of Margaret Mitchell’s Gone With the Wind, published originally in 1935. Despite the fact that the original novel should have entered the public domain some time in the 1980s, Congress kept its copyright alive though retroactive copyright extension — the very issue the Supreme Court considered in the Eldred case. Appealing the injunction against the publication of The Wind Done Gone, lawyers for the publisher, Houghton Mifflin, argued that the new novel was a parody of the original, and thus the use of similar characters and events constituted "fair use." The appeals court agreed with the parody argument and allowed the novel to be published [3].
• Also in the summer of 2001, a federal court freed Martha Graham’s legacy from the hands of Ronald Protas, ruling that Protas only controlled the rights to a single dance, "Seraphic Dialogue." In addition, a court ruled that Protas could not prevent the Martha Graham Dance Company from using its founder’s name [4].
• The Federal Bureau of Investigation handcuffed Russian computer programmer Dmitry Sklyarov in the Las Vegas airport after he had given a presentation on the security vulnerabilities in Adobe Corporation’s E–book Reader software. The company Sklyarov worked for in Moscow, Elcomsoft, soon faced federal criminal charges in the United States (even though the DMCA is only a United States law) after Sklyarov agreed to testify in exchange for immunity. First Sklyarov, and then Elcomsoft, were accused of violating the Digital Millennium Copyright Act by distributing a program that willfully violated the act by allowing readers to make private copies of e–books. In December 2002, a San Francisco jury found the company not guilty [5].
• The recording industry moved its attention from the distributors of peer–to–peer software to those actually offering copyrighted music files on those networks, filing civil suits against hundreds of individuals.

Political success, actual failure

Five years after the U.S. Congress passed the 1998 Digital Millennium Copyright Act (DMCA) and the Sonny Bono Copyright Term Extension Act, it should be clear that they were both tremendous mistakes and failures. They have done much harm and no good. The Internet is ripe with unauthorized digital content of all kinds. Peer–to–peer systems are fulfilling the role of a disorganized global digital library. And laws and technological locks have done little to change that. However, these laws have stifled legitimate and harmless users of digital materials, especially scholars, librarians, and researchers.

The DMCA has onerous provisions that go beyond enforcing electronic locks and gates. It has emerged as the law of choice for censoring criticism and commentary in the electronic environment. For example, let’s pretend you have just published a harshly negative review of a book in your field. And in this review, you quoted short passages from the book, confident that the concept of "fair use" enables you to make such unwelcome use of copyrighted material for critical purposes.

A week or so after the electronic version of your review appeared on the publication’s Web site, the editors inform you that they are removing it because it violates the Digital Millennial Copyright Act. You are welcome to respond and make your case that the use of the copyrighted quotes fall under fair use, but the publication is under no obligation to accept your defense. In fact, in an all–too–common act of cowardice, the publication keeps the site dark rather than face the legal battle that might follow. So you respond by publishing the review on your own Web page. Soon you discover that all the major World Wide Web search engines have removed your site from their indexes, effectively stopping traffic to your site.

Copyright is not meant to allow such abusive and censorious actions. And what about that life-blood of journalists, educators, researchers, and critics: Fair use? Welcome to the new Millennium. Fair use, while not quite dead, is dying. And everyone who reads, writes, sings, researches, or teaches should be up in arms about it.

Consider the action that the Church of Scientology took in the summer of 2002 against the search engine Google.com. The Church of Scientology used a "notice and takedown" letter (authorized under the DMCA) to persuade Google.com to block links to a Norwegian site that includes some criticism of the wealthy cult [6].

Back in the twentieth century, if someone accused you of copyright infringement, you enjoyed that quaint and seemingly archaic notion of due process. You would be warned and perhaps sued. And if you wanted to defend yourself in court, you could appear at a hearing, present evidence and arguments, and have a judge render a ruling based on statute and precedent. We no longer have those rights in the digital world. The DMCA puts the burden of proof against an accusation of copyright infringement on the accused. And it makes the owner of every Internet service provider, search engine, and content host an untrained copyright cop. The default action is censorship.

The conflict between Scientology and Google is just the latest in a string of DMCA–supported copyright abuse. Besides limiting due process and empowering private parties to enforce censorship through the "notice and takedown" provision, the Digital Millennium Copyright Act has another major provision that upends more than 200 years of democratic copyright law. It forbids the circumvention of electronic access controls that protect works — even those portions of works that might be in the public domain or subject to fair use. It puts the absolute power to regulate access to information in the hands of the companies that distribute the material.

More to the point of intellectual freedom, in the spring of 2001 the music industry prevented a computer scientist from presenting a scholarly paper at a conference because the paper dealt with encryption algorithms that the recording industry hoped to use to protect its digital content. The Recording Industry Association of America sent a "cease and desist" letter to Princeton professor Edward Felten, accusing him of violating the provision of the DMCA that makes it illegal to "make available" any technology that might be used to circumvent access controls to digital material. The Felten case is merely the best known of several efforts the content industries have made to prevent researchers from discussing certain technologies and algorithms.

Among recent legislation, the DMCA is second only to the USA PATRIOT Act in terms of reckless, poorly thought–out, and censorious consequences. Yet back in 1998, when Congress passed the law, there was little public outcry, or interest for that matter. The news coverage about the bill referred to some harmless extension of "copyright to the digital world," as if that had not already happened. And those who raised concerns about the sweeping powers of the bill were unfairly dismissed as radicals who were against copyright in general.

Effects on teaching and scholarship

We should all be concerned about the potential harm the anti–circumvention powers of the Digital Millennium Copyright Act will have on education and scholarship in general. And we should be just as concerned about the effects that this emerging leak–proof, highly regulated electronic regime could have on American culture and deliberative democracy.

Today, most of the subjects of media studies research are widely accessible. A handful of works of film and early radio are even in the public domain. So scholars and teachers benefit from ample and easy sources. But that might change over the next few decades as more works — even those already in the public domain — become enclosed behind electronic locks and gates and delivered in streams of digital signals. The potential for abuse of this technology and of the legal power behind it is immense.

Please imagine my classroom 35 years from now. As I do every semester, I plan to show my class a film that explores conflicting values and loyalties during wartime: Casablanca. But some time during the 2020s, all the VHS players at New York University fell into disrepair. The library has the tape, but nothing to play it on. Kim’s Video store on Bleecker Street is now a Starbucks. Blockbuster is now a hand–held device instead of a large store. The only means for showing this film to my class is to have it streamed in via a satellite feed into a video projector.

Casablanca would have entered the public domain the previous year (assuming Congress does not extend the term once again). But it remains well protected, "double–wrapped" by both by "click–wrap" contract and technological access controls.

The class settles down. On my palm computer, I call up the interface page for either Via–Disney–AOL–Warner–Mount or its competitor, MicroFox. I enter my "educator’s code." I hit "play." Nothing happens. Once again, I must do my poor Bogart impression for the class in lieu of the film.

What happened? Perhaps there was some technical failure. Perhaps this was my second class of the day and the service blocks "fair users" from watching a film twice. Perhaps the NYU Library could not negotiate a contract renewal with the company and stay within its tight budget. Perhaps my "educator’s code" revealed me to be the one who wrote that scathing review of the major summer blockbuster of 2034, Battlefield Earth IX. Perhaps the company identified me as someone who testified against the industry at Copyright Office hearings way back in May of 2000.

The Digital Millennium Copyright Act grants complete power to allow or deny access to a work with the producer or publisher of that work. The producer may prohibit access for those users who might have hostile intentions toward the work. This power could exclude critics and scholars. Most likely it would exclude parodists and satirists as well. The anti–circumvention provision shifts the burden of negotiating fair use from the user (and the courts in the case of likely infringement) to the producer. The producer has no incentive to grant access to any user who might exploit the work for fair use — including scholarship, teaching, commentary, or parody. Under this regime, a user must agree to terms of a contract with a monopolistic provider before gaining access. One must apply to read, listen, or watch.

Opposition emerges and organizes

If the music and film industries continue to tighten the reins on use and access, they will strangle the public domain and the information commons. This trend presents a much greater threat to American culture than just a chilling effect on scholarship. Shrinking the information and cultural commons starves the public sphere of elements of discourse, the raw material for decision–making, creativity, and humor. Fortunately, there is growing outrage about these and other examples of copyright holders using their new legal powers to stifle criticism and undermine legitimate uses of their material. Loud protests have emerged from communities of software producers, artists, writers, librarians, and media activists. These activist organizations — such as the Electronic Frontier Foundation, digitalconsumer.org, and publicknowledge.org — are struggling to accurately define the "public interest" in copyright and debating how best to articulate the issues to a diverse public. They deserve our support.

Public interest copyright activists are an ideologically diverse group. Many of us who fight for the "public interest" are classically liberal, civically republican, and philosophically pragmatic. We focus on restoring the balanced, humane principles that used to guide American copyright as recently as 1976. We frame our rhetoric in classically liberal terms. We emphasize individual freedom, a modest level of state intervention, and a flexible, adaptable regulatory system.

Some activists approach these issues from the perspective of religious freedom and conservative values. They want parents and teachers to have the rights and abilities to edit digital material they deem offensive, even if the DMCA prevents the use of the technologies required to alter the work. Other equally active critics of recent trends in copyright come from a Marxist perspective. They warn about the coming post–industrial infotainment–industrial complex and the ways it has enlisted the state in efforts to make all information and culture tradable commodities. Still others espouse a form of information anarchy. According to the anarchistic vision, if we empower every user, limit the power of large corporations to regulate flows of information, and democratize information generally, we all soon would have the ability to both create and consume material with absolute liberty. The infotainment industries would wither without enforceable copyright protection. And we would just have to communally cope with the negative externalities of such a system — like the extinction of coyotes on Saturday morning cartoons and tigers on Wildlife Channel documentaries.

The brilliance of real copyright

All of these activists lament the erosion of the democratic safeguards that made American copyright such a brilliant and effective system and filled our libraries with books. Copyright can censor. It is a prohibition on what we may reproduce, quote, perform, and distribute. Through both statutes and the common law over the past 200 years, the copyright system developed four democratic safeguards that mitigated the potentially censorious power of its prohibitions:

• The principle of fair use — at its base a legal defense against an accusation of copyright infringement. If you are accused of infringing, you can make an argument that your use of the protected works is "fair" because of some combination of the following four factors: The nature of the original work is important to public discussions or concerns; the nature of your use of it is important because of teaching, research, or commentary; you did not use very much of the original work; your use did not significantly affect the market for the original work. In the public discourse about fair use, it has served as a term representing a collection of uses that consumers could consider "fair," such as recording television shows for later viewing, making cassette tape or MP3 mixes from compact discs, and limited copying for private, noncommercial sharing.
• The principle that after the "first sale" of a copyrighted item, the buyer could do whatever she wants with the item — such as making a hat, or a broach, or a pterodactyl — save publicly performing the work or distributing unauthorized copies of it for sale. The first sale doctrine is what makes the lending library possible.
• The concept that copyright protected specific expression of ideas, but not the ideas themselves. This is the least understood but perhaps most important tenet of copyright. You can’t copyright a fact or an idea. Because you can’t, anyone may repeat your idea to criticize it or build on it. Journalism, along with many other forms of common expression, depends on this principle.
• The promise that copyright would only last — as the Constitution demands — "for limited times," thus constantly replenishing the public domain. The public domain allows for low–cost scholarship, research, and revision of formerly copyrighted works. The reason that bookstores are filled with high–quality yet affordable scholarly editions of Mark Twain’s Adventures of Huckleberry Finn and John Stuart Mill’s On Liberty is that they are in the public domain. The reason there is no annotated scholarly edition of Ralph Ellison’s Invisible Man is that it is not.

Copyright, when well balanced, encourages the production and distribution of the raw material of democracy. It is supposed to be an economic incentive for the next producer, not a guarantee for the established. But after more than 200 years of legal evolution and technological revolution, copyright no longer offers strong democratic safeguards. It is out of balance. Each of these four safeguards is under attack by the copyright cartel.

So in general, active critics of the corrupted copyright system share an agenda that would restore those democratic safeguards. We have been fighting for a hacker magazine’s (and thus everyone’s) First Amendment right to describe certain illegal algorithms and create hyperlinks to other pages that describe or offer these algorithms. And we have been playing defense in the halls of the Capitol against legislation that would create new and dangerous property rights in facts and data and other, more odious legislation that would require all producers of electronic hardware and software to include anti-copying devices in their products.

[This article continues here.]