It's important to identify and recognize not only companies which are trying to abuse copyright, but also companies that respect copyright. One book publisher at the forefront of limited copyright is O'Reilly & Associates. O'Reilly has announced that they are adopting The Founders' Copyright.
Under the terms of The Founders' Copyright, a program being developed by The Creative Commons, traditional copyright will apply for 14 years, renewable once for an additional 14 years. After that time, the author will make the book available under an attribution-only license. The content of the book can be used for any purpose, including republication, provided the original author is credited as the author of the book.
A maximum copyright term of 28 years is something to be appreciated. Under current law, copyright lasts for the life of the author plus 70 years. O'Reilly expects these new terms to affect approximately 500 out-of-print and current books that O'Reilly has published.
O'Reilly is making an interesting trade-off. Most of their books are on computing and tend to have a shelf life of only a few years. They recognize that the revenue they can gain by holding onto older books is minimal, but the books may have value for select groups or for historical reasons. In return, they are gaining a significant amount of goodwill. O'Reilly is already highly valued by the programming community, and this can only improve their standing. I'm sure I'm not alone in preferentially choosing O'Reilly books simply because they are published by O'Reilly.
I also need to call attention to another, similar effort which has backfired on the authors. Real World Adobe GoLive 6 was published last year. In the face of declining sales, the authors decided to release it online for free. 10,000 copies were downloaded in a day and a half, far beyond what they had expected. The authors are facing a bandwidth bill from their Internet provider that could be as large as $15,000. Making the book available online was a good thing, and the authors don't deserve to be punished. They are requesting donations through PayPal at their site. In the event that they receive more donations than their bandwidth expense, they will donate the extra to Project Gutenberg, another force for good in the publishing world.
Many people online have gotten significant donations for far stupider things. I have made a donation. I encourage you to do the same.
According to the San Jose Mercury News, the ReplayTV lawsuit was not a factor in SonicBlue's bankruptcy. The article quotes Greg Ballard, the CEO, saying, "That lawsuit was not the problem. … The problem was … [t]his crushing debt that existed on the balance sheet."
This invalidates my assignment of blame to the movie industry for the bankruptcy. The other points of my previous comments still stand. The future of ReplayTV is now uncertain, and this is a technology that the movie and television industry should not be permitted to suppress.
During Saturday's symposium, Greg Ballard, CEO of SonicBlue stated that SonicBlue is spending $3 million per quarter on the ReplayTV lawsuit and that he wasn't sure how long he could continue. Less than a week later, we know the answer. SonicBlue is seeking bankruptcy protection.
SonicBlue is the manufacturer of the Rio series of MP3 players and ReplayTV. ReplayTV is like a digital VCR, only much, much cooler. Rio, the first portable MP3 player on the market, faced a lawsuit from the music industry and won. ReplayTV is fighting a lawsuit from the movie industry, and the lawsuit has forced the company into bankruptcy.
It's not yet clear what this means for Rio and ReplayTV. SonicBlue intends to sell both products to D&M Holdings Inc., and has posted a message on its homepage stating that ReplayTV service will not be interrupted. D&M Holdings is probably a better place for ReplayTV, if only because it's larger. D&M Holdings owns Denon and Marantz, two stereo equipment companies, so it may have the financial strength to keep up the fight on ReplayTV.
The thing that is unclear is whether it will. The lawsuit stems from two of the features of ReplayTV. The first is the commercial skipping feature, which automatically edits out commercials during playback. The second is the ability to send copies of recorded programs to friends. If you've recorded a show and your friend wants to watch it, you can send the show to your friend to watch on their own ReplayTV. D&M Holdings could choose to settle the suit and remove these two features from their product.
It might go farther than that. Digital video recorders haven't sold as well as expected, in spite of the fact that nearly everyone who buys one raves about it and swears by it. D&M could decide that it's not worth the effort and get out of the business entirely. That would leave Tivo as the only existing digital video recorder manufacturer, and they're not doing that well either.
I'm an advocate of technology. I think new devices should be given the opportunity to succeed commercially on their own merits. ReplayTV and Tivo are a great idea, but it's a little hard to capture why in a sound bite. "It will change the way you watch TV," sounds hyperbolic, but in this case it is literally true. The two companies are struggling to find a way to get customers to understand this and be willing to pay for it before they run out of money. That's hard enough, but on top of that, the movie and television industries are trying to destroy them before they get the chance. If the movie industry succeeds, that will be tragic and a great loss to consumers.
Using someone else's work as the basis for a new work is hardly a new practice. A recent article in The New York Times with the provocative title, "Do Arrangers Destroy or Create," laments the discrediting of musical arrangements in the classical music world. (The New York Times requires free registration.) Arrangements call the benefits of strong copyright laws into question.
Musicology has asserted the primacy of the original intent of the music as expressed by the composer. This has led to the search for the "authentic" text as the "correct" version of a piece of music. In addition to any other merits or drawbacks to this approach, arrangements of other pieces of music are automatically suspect, since they are clearly not the original piece of music.
The argument presented is that arrangements were necessary in order to allow people who didn't have the opportunity to hear the original version of a piece of music to still be exposed to the music. If you can't put together an orchestra, you can always play the piano arrangement of a symphony. You don't get the original version, but you get at least a sample of what the piece is supposed to sound like. Recordings have made this unnecessary, because if you can't get to a live performance, you can always listen to a recording.
The article challenges this assumption, pointing to Franz Liszt as a composer who wrote many arrangements, some of which are now more well known than the originals. Other examples are easy to come by, such as Gustav Mahler's reorchestrations of Franz Schubert's symphonies, in which an orchestra is replaced by an orchestra, and Arnold Schoenberg's orchestration of Johannes Brahms Piano Quartet in G minor, in which four musicians are replaced by a full orchestra. In none of these cases can the argument be made that the arrangement was merely made to facilitate performance.
Now we get into the sticky issue of copyright. Brahms died in 1897. Under current copyright law, Schoenberg could not have published his orchestration until at least 1967. Schoenberg wrote his orchestration in 1937, which placed it outside the scope of copyright at the time, but unpublishable under current law. Schoenberg died in 1951, sixteen years too early for his arrangement.
The list of composers who have written arrangements is long and storied. Beyond the three I have already mentioned, the article speaks of Bach, Beethoven, Mozart, Ravel, Handel, Busoni, and Saint-Saëns. It is safe to assume that all of them committed what would be considered copyright infringement today.
In challenging the idea of music as the property of the composer, the article turns to no less than Ludwig van Beethoven. "Beethoven, impressed by the funeral march from Ferdinando Paer's opera Achille, is said to have remarked, 'I must compose that.' And he did. It later turned up, totally transformed, as the Funeral March of the 'Eroica' Symphony." Ask any music lover if they would rather have stronger copyright or Beethoven's Third Symphony, and you will get Beethoven's Third every time. Who can guess how many composers working today are stifled by current copyright law, and what they might create?
The JOLT Symposium that I've spent so much time talking about is now online as a webcast. It's in RealPlayer format. The RealPlayer website is pushing their paid service pretty hard, but there is a link for RealOne Player, which is a free download. You can see the speakers and hear what they had to say for yourself. My blog doesn't really capture the range or energy of the discussion, so I encourage readers to take a look. We were told at the conference that Rep. Boucher's keynote would also be available online, but it doesn't look like it's there yet. I'll keep an eye out for it.
321 Studios is a great example of what the movie industry is up against. 321 Studios grew out of a single man's desire to make backup copies of DVDs for his own use. He put together some software to make backup copies of DVDs, and then discovered that copying DVDs violates the DMCA. This has lead to a lawsuit and a countersuit between 321 Studios and the movie studios. At this stage, both sides are engaged in legal maneuvering prior to trial.
CNET has an interview with Robert Moore, the CEO of 321 Studios, which demonstrates the way in which the movie industry's desire for control and customer expectations are colliding. Robert Moore states that when he started buying DVDs, he wanted to back them up and found tools on the Internet to do it. When asked if he thought software to copy DVDs would be opposed by Hollywood, he said, "quite the opposite. I have a VCR sitting on top of my television that's a dual VCR, where you put the master in the left and put the blank in the right and there's a copy button in the middle."
Customers have the expectation that DVDs can be copied, just like audio tapes can be copied, videotapes can be copied, and CDs can be copied. Robert Moore had this expectation, and when he found that a product to do it didn't exist, he made one. He argues that he is anti-piracy, and that although his software could be used to pirate DVDs, he believes in personal responsibility. "I vehemently disagree with the Napsterites of the world. I believe in everybody's right to create, author, invent, and exploit their works for profit.... I believe piracy to be the theft of intellectual property for commercial gain.... If you buy a DVD, you are able to give it, sell it, rent it, do whatever you want with your property, are you not?... I wouldn't go along with the definition that piracy is making a copy of a movie and letting your friend watch it."
As far as the movie industry is concerned, making a copy and letting your friend watch it is the definition of piracy. Robert Moore thinks he is "put[ting] forth the effort to become the voice of reason and to try to reach a middle ground everyone can agree on." The problem is that the movie industry isn't interested in the middle ground. This lawsuit is just beginning. I hope he can learn about what he's in for from SonicBlue, the Sony Betamax, and other targets of the movie industry.
Even if they win, the movie industry has a bigger problem. Robert Moore thinks he represents the middle ground. If he's right, how long can the movie industry hold on to their position, and at what cost?
I've been thinking about copyright extremism. It's easy to name groups that support absolute copyright. The MPAA, RIAA, and BSA, for starters. It's harder to name groups that support no copyright. One that comes to mind, at least in certain contexts, is the Free Software Foundation. While it isn't standard to think of them in quite these terms, they advocate no copyright for software.
The Free Software Foundation is devoted to the idea that use of software should be unrestricted. Software should be "free" in the sense of "freedom," but not necessarily in the sense of price. There are four freedoms which software should have, according to their thinking. The most important of these from a general copyright perspective is "The freedom to redistribute copies."
The FSF takes a variety of actions to support its goals. One of the most important is the development of GNU software. GNU stands for "GNU's Not Unix," and is a self-referential description of their intention to build a complete free software Unix-like operating system. The Linux operating system uses GNU software for many of its components.
The FSF uses copyright to support its goals. All GNU software is copyrighted by the FSF and is released under the GNU GPL (General Public License). The GPL controls how GNU software can be used. The most important provisions are that any user can redistribute GNU software, provided that it is redistributed under the GPL, and any user can modify GNU software and redistribute the modified software, provided that it is redistributed under the GPL.
What this means is that anyone can sell GPL software as soon as it is released. In effect, there is no copyright protection in the conventional sense. The GPL takes things a step further, by coercing developers who create new software based on GPL software to give up their copyright protections as well. The FSF philosophy is that developers have a choice between using the existing software, in which case they must also use the GPL, or developing the software from scratch, in which case they can release it under any terms they would like.
This is the "viral" nature of GPL software that major software publishers speak of. Microsoft discusses this in a question about the GPL in their Shared Source FAQ. Microsoft speaks of the "viral" power of the GPL as if it's a bad thing. In contrast, the FSF argues that this is the only way to defend and promote their software freedoms.
People speak of the GPL in terms of turning copyright against itself. It is frequently referred to as "copyleft," emphasizing how copyright has been turned to serve different purposes. But the real goal is to allow anyone to publish or modify software. Controlling publication is the heart of copyright. If copyright did not exist, that would remove a major focus of the FSF's existence. (The FSF and the GPL do in fact cover issues beyond copyright, but most apply only to software.)
The FSF doesn't include any statements disavowing copyright on their website that I am aware of, which I suspect is due to their reliance on copyright to give the GPL power. But Richard Stallman has written two excellent essays on copyright which appear on the site. The first argues that publishers deliberately misconstrue copyright to serve their own purposes, and the second presents revised copyright terms based on his interpretation of copyright. Stallman doesn't advocate doing away with copyright entirely, but he does suggest a great reduction of the duration of copyright and that individual copying by users should not be a copyright infringement.
Even if you disagree with the FSF's goals or methods, those two essays are worth reading. They lay out a conception of copyright radically different than what corporations with a vested interest in strong copyright present, and even if those views are unappealing, he raises interesting questions, including the suggestion that copyright terms should be different for different media.
Wired has a story about how fear of copying is shutting down a market which doesn't even exist yet. The latest generation of cell phones has the capability to display images and play games, and to transmit images and games from one phone to another. Copy protection fears are leading companies to not produce any content for the phones.
Nokia is selling phones with copy protection built in. The phones will prevent users from copying content. Their new phones will allow producers to control what can and can't be done with content, including limiting use of a file to a certain period of time or allowing customers to forward content, but requiring the recipient to pay for it before they can access it.
From the article, "Content providers say they are not concerned about people who go looking for content to steal. They are worried that if no mechanism exists to protect their intellectual property, users will swap that content with friends without even realizing it is illegal to do so." Once again, the illogic of the content industry rears its head. The assertion here is users violate copyright just because they don't know better. The industry response, rather than trying to educate customers, is to develop complex systems to prevent copying.
If the threat really is customer unawareness, surely an education campaign will have an effect. Even something as simple as an onscreen message reminding users not to transmit copyrighted material should at least get users to think about what they are doing.
Instead, the phones are building in systems that make the phones less useful and more complex, so it will be "safe" to produce content for the phones. Think about this from a customer perspective. How much are you going to be willing to pay to download a video clip to your phone if you can't transfer it to your computer, can't send it to your friends, and it will delete itself in a week? Similarly, what are you going to think about phone games if the first time a friend sends you one, you are told you will have to pay to access it?
I have to think that the industry thinks that customers will continue to send material to each other even if they are explicitly told that sending it is illegal as they send it. But the bigger issue is that they are willing to kill the industry in order to save it. AOL Time Warner says they are not producing phone content because they are worried about copying. But they also say they aren't producing phone content because not enough customers have these phones yet.
The reason to buy one of these phones is to access the content. But AOL says that they'll only release content if it's difficult to use and if enough people already have the phones. When do they expect that to happen if there's no reason to get the phones?
The one voice of reason in the article comes from "Kristian Segerstrale, head of business development at Macrospace, a company that delivers content to mobile phones. 'If the content is decently priced, would you spend hours to find pirated content?'" This makes sense to me. The way to get customers is to price things reasonably. That's basic economics. But the industry as a whole isn't interested in economic models. They're only interested in control.
Lawrence Lessig has a story about fair use which is a reminder of the problem with fair use. Christos Papadimitriou has written a novel, Turing. In the novel, he quotes single lines from twelve rock songs. The MIT Press, the publisher, decided to get permission to use the lyrics before publishing the novel.
When The MIT Press contacted the song publishers, they received ten forms requesting more information, one request for $10,000, and one flat out denial. The MIT Press has decided to just go ahead and publish the novel as is.
You might think that this is the way fair use is supposed to work. If you are creating a work and you want to quote another work, you can just go ahead and do it. In fact, fair use hardly ever works this way.
The copyright holders believe they can control the use of quotes from their works. The MIT Press, by choosing to publish without permission, is risking a lawsuit from each one of the copyright holders. Most publishers choose not to take that risk.
During Saturday's symposium, Siva Vaidhyanathan mentioned a scholarly book on country music that had been published without any country music lyrics, because the publisher was unwilling to face the threat of lawsuits. Robert Holleyman and Alec French asserted that fair use is inherently a case-by-case situation, and must be resolved on a case-by-case basis. Between negotiating licensing fees, flat out refusals, and the threat of lawsuits, most publishers don't even try.
What's happened here is that fair use has failed. Everyone talks about it, but no one does it. "Case-by-case" means, in practice, no fair use. "Case-by-case" isn't a legal principle. Without a legal principle, so creators and publishers can judge beforehand whether a quote is protected by fair use, few publishers can afford to consider quoting other sources.
This one example to the contrary, there is no fair use. And there will be no fair use until the law spells out the terms of fair use.
I've been thinking about the intended function of DRM. Alec French asserted that DVDs only exist because of the DMCA. Once the DMCA was passed, movie studios were willing to create copy protection for DVDs, knowing that the copy protection would be defeated, because the DMCA provides legal backup for the copy protection.
I've been wondering if that's actually true. It seems inconsistent with the music industry's attempt at copy protection with SDMI. My understanding of the music industry's challenge was that they believed that their technology was unbreakable, and they were expected to be proved right. When Prof. Felten proved them wrong, not only did they try to suppress his results, but we haven't heard of SDMI since.
Recently, Prof. Felten has been discussing the inconsistent behavior of DRM advocates. He assumes that the creators expect DRM to work, and has pointed out that if they expected it to fail, they would make it simpler (and less effective).
Now, Alec French says the movie industry expected DVD copy protection to fail. I'd like to see some support for that claim, because the evidence is that industry continues to expect copy protection to work. (In an example from another field, both Nintendo and Microsoft have asserted that the copy protection on their game consoles is unbreakable.)
The other question is why the DMCA is necessary, either way. If your copy protection works, why do you need legal backup? If it doesn't work, how does it help prevent copying? From the perspective of a potential infringer, the act of copying is already breaking the law, so is breaking a second law going to be a deterrent?
All I can think is that the movie industry is extremely cynical, and believes its customers are both thieves and lazy. And once again, I'm wondering why I should be their customer if they think of me that way.
Ed Felten has more on needlepoint piracy. Again, I'm interested in the relationship between industry and its customers. Ed's source makes the claim that most needlepointers are very concerned about the health of the industry and resist copying in any form. So there we go. When customers care about an industry and understand that copying threatens it, copying seems to be limited. On the other hand, when an industry treats its customers with disdain and tries to control them, copying seems to be rampant. I wouldn't claim that the examples of needlepoint and music can be extended to all industries or that other factors can't be at work here. Still, I can't help thinking that it supports my thesis that aggressive approaches to copyright harm the industry as well as the customers.
An article in Wired News reports on efforts to step up criminal enforcement against file traders. This is just one more demonstration that copyright holders don't care about what the public thinks about copyright. They just want to control their product at any cost.
The industry logic seems to be, "we haven't been able to stop file trading with any of our tactics so far, so we should just start sending file traders to prison." I would think that the goal would be to maximize sales. For the sake of controlling their products, the industry is going to start locking up its customers. Even if this reduces file trading, which I doubt, is making your customers afraid of you going to encourage them to buy more stuff? Am I missing something, or is this how the industry actually thinks?
Here are some links to other coverage of Saturday's symposium.
I want to sum up my thoughts on copyright issues arising from Copyright & Fair Use: Present & Future Prospects this weekend. I have two goals here. First, my last two posts were very long, so a shorter version is probably appropriate. Second, the structure of the previous posts means that my key thoughts may have gotten buried.
There is an extremely wide range of opinion on what copyright should be. On one extreme are people who believe there should be no copyright. Once something is published, anyone should be able to do anything they want with it, including republishing it. At the other extreme are people who believe in absolute power for copyright holders. In the world they envision, if a consumer buys and reads a book, the consumer should have to pay again for the right to read the book a second time. Most people lie somewhere in between.
The absolute copyright lobby is much better organized than everybody else. None of the speakers at the symposium advocated doing away with copyright, but three of the panelists made statements supporting absolute copyright. Beyond that, the absolute copyright lobby has simpler (meaning better) arguments. They claim copyright increases creation. The standard arguments for weaker copyright depend on ideas like fair use and public domain, which are abstract and wishy-washy in comparison.
The absolute copyright lobby is winning. They are winning in court, they are winning in Congress, and they are winning with manufacturers. Consumers are fighting back, as indicated by Rep. Boucher's bill, but the balance has shifted so far that the absolute copyright lobby can call the DMCA balanced. When Congress passed the first copyright law, it had a maximum duration of 28 years, and that was only if the publisher explicitly renewed the copyright. Only a small percentage of works were protected by copyright that long. Today, copyright has a minimum duration of at least 70 years, and that applies to all works.
Different copyright laws have different effects on the world. The BSA, MPAA, and the RIAA support absolute copyright because they believe their industries depend on it. No copyright would certainly force their businesses to change. But absolute copyright interferes with creators, increases costs, prevents libraries from functioning, and encourages the destruction of historical works. You may have an opinion about copyright. Are you willing to accept the consequences of that opinion? Are you aware of the consequences?
The absolute copyright lobby doesn't care what consumers think of copyright. They think that if they can lock everything down, consumers won't have any choice. Ironically, their quest for absolute control encourages disdain for the principle behind copyright and harms their industry, but they aren't interested in learning from the past. They're interested in control.
If this makes you angry, good. It should. Do something about it. Call your representatives. Give money to groups that support reasonable copyright laws. When you buy a book or a CD or a video or software, ask yourself if you can use it the way you want to use it, and think about where your money, time, and energy are going. Make sure you're contributing more to groups you support than groups you oppose.
This isn't about trading MP3s on the Internet. It's about what you read, listen to, watch, write, sing, buy, and sell. It's about the home video you put on your website. It's about the comic strips you put up in your cube. It's about the email you forward to your friends. It's about all information, no matter the source, and what you can and can't do with it.
Don't let someone else make the rules, just because you're not paying attention.
This is the second part of my coverage of Copyright & Fair Use: Present & Future Prospects, a symposium I attended Saturday at Harvard Law. This will cover the keynote and the second panel discussion.
The keynote speaker was Representative Rich Boucher. Boucher is known for acting for consumer interests and is the primary sponsor of the Digital Media Consumer's Rights Act (DMCRA). The DMCRA seeks to reverse some of the effect of the DMCA by overturning the existing law's controls on encryption breaking tools for the purposes of fair use. The DMCA states that the law is not intended to interfere with fair use, but the law makes it illegal to distribute technology that may be necessary to gain access to the work for fair use. The DMCRA will legalize this technology, meaning that consumers can actually exercise the fair use rights the DMCA claims to preserve.
Rep. Boucher's speech focused on the history of copyright. Copyright was originally created to establish a publishing monopoly. Only a few companies were allowed to publish anything at all, regardless of the original source. When the idea of freedom of the press gained currency, copyright got turned around. Now anyone could publish, but copyright limited the ability of publishers to republish works published by other publishers. This is the conception of copyright expressed in the U.S. Constitution. Over time, court rulings established the concept of fair use, which states that certain uses of copyrighted material do not constitute copyright infringement. Examples include quotes in a review, parody uses, and academic uses. Fair use was codified in law by the Copyright Act of 1976.
Boucher stated that fair use is a benefit for creators of works. His example of the Disney movies Snow White and Cinderella, both originally published as Grimm Fairy Tales, doesn't actually demonstrate fair use, because they were both in the public domain when the movies were created. (Many Disney movies since have been dependent on the public domain, including most recently Treasure Planet, based on Robert Louis Stevenson's Treasure Island.) However, you don't have to go far to find a valid example of fair use. "Steamboat Willie," the first Mickey Mouse cartoon, is a parody of "Steamboat Bill, Jr.," a Buster Keaton movie released earlier in the same year.
Rep. Boucher went on to discuss how the existing industries have always fought new technologies, starting with the piano roll, which was sued by sheet music publishers, and up to, famously and recently, the VCR. Sony was sued by the movie industry over the Betamax VCR, which argued that the VCR was a tool of piracy and would destroy the movie industry. The Supreme Court ruled that a device that can be used to infringe on copyright is still legal if it has substantial non-infringing uses, Sony won the case, and today the home video market generates more revenue for the movie industry than the theatrical release of movies.
Boucher stated that in the five years since the DMCA was passed, it has clearly harmed fair use, and the DMCRA will correct that. This will be an obvious benefit to consumers, but it will also benefit industry, which has consistently misjudged the effects of new technology. He ended his speech with a call to contact your representatives in Congress and express your opinion on the DMCRA, saying that the most important thing is to have an active discussion.
After his keynote ended, the second panel began. Based on the title, "An Evaluation of Movie Industry Strategies to Combat Internet Piracy—Learning from the Music Industry's Mistakes?" I expected the discussion to center on the broadcast flag discussion in regards to high definition television, but the topics were much more varied than that.
The first speaker was Andy Moss, Director of Technology Policy at Microsoft. He focused on the differences between the music industry and the movie industry. The major difference is that the music industry makes almost all of its money through CD sales, while the movie industry makes money through the theatrical run, pay per view, cable, home video, and broadcast television. The difference in revenue sources means that the two industries may require different strategies.
He was followed by Greg Ballard, CEO of SonicBlue. SonicBlue owns the companies that sold the first dual deck VCR, the first portable MP3 player, and ReplayTV, and it has been involved in litigation over every one. ReplayTV is a hard disc video recorder, similar to Tivo, meaning that it functions like a VCR with all sorts of nifty additional features, such as the ability to skip commercials. The current lawsuit over ReplayTV is costing SonicBlue $3 million per quarter, which is a substantial percentage of SonicBlue's total expenses, and Ballard stated that he's not sure how long he will be able to keep paying for the lawsuit. He says that the movie industry's strategy has changed since the Betamax lawsuit. In the Betamax lawsuit, the industry was fighting a large corporation, and now the industry chooses to go after smaller corporations, which can't afford to fight back.
The next speaker was Doug Lichtman, a professor at the University of Chicago Law School. He framed copyright in terms of three things: norms, nuances, and trade-offs. Adults know that file sharing is probably illegal, but they do it anyway. Eight year olds think there isn't anything wrong with file sharing, and are surprised when they are told it is illegal. The standards have changed from one generation to the next, and it is a failing for that norm to change without thought. The Supreme Court ruled that the Betamax was legal, but does that make Napster legal? The nuances of how the two technologies work need attention. One proposed solution to file sharing is to charge service providers a fee. People don't really talk about the trade-off involved of making Internet access more expensive, and the harm that may have on developing future uses for the Internet.
The final speaker on the panel was Jonathan Zittrain, Co-Director of the Berkman Center for Internet & Society at Harvard Law School. He had what I thought were some of the most radical statements of the day. He quoted Eben Moglun saying, "society has been underproducing pyramids since the time of the Pharaohs," and then compared modern movies to the pyramids. In his view, construction of the pyramids was dependent on a certain economic structure, and modern movies are dependent on a certain economic structure. Pyramids became economically unsustainable, and Zittrain suggested that movies may be becoming unsustainable. The problem as he sees it is that current arguments for fair use aren't particularly motivating to the public at large, and new arguments are required.
The moderator stated that the organizers of the conference had invited the MPAA to send a representative, but the MPAA declined.
The discussion then opened up and again became very heated. Ballard said, "Working in the music industry, I was working with some of the dumbest people I have ever met." He said that at one time he was developing a technology to allow consumers to create mix tapes in music stores, had the research to prove that it would result in consumers buying more music, and he couldn't get the interest of the record labels. He said that the movie industry is filled with smart people, but he also said that he thinks that the music industry is now finally learning from Napster, but he doesn't think the movie industry is learning yet.
Questions of what the norms should be got tossed back and forth, along with questions of consumer education. It was suggested that perhaps the music industry should be more active in trying to teach consumers that copying is wrong. That was questioned with the idea that consumers basically know that copying is wrong but they do it anyway.
The movie industry is pushing towards a pay-per-use society. Zittrain argued that pay-per-use is fundamentally incompatible with libraries. Lichtman argued that DRM could enable pay-per-use, but could also allow creators to give up their copyright protections entirely, if there exists a market for it. Ballard stated that that's only true in a competitive market, and the current market isn't really competitive.
Towards the end of the discussion, Lichtman focused on trade-offs again, saying that commercial skipping might be okay, but it could result in the death of broadcast television. All of these issues need to be decided with an awareness of what other effects they might have.
After the panel ended, I spoke briefly with Prof. Zittrain. During the course of the day, I was struck by the fact speakers arguing for strong copy protection often appealed to market forces, saying that the copyright holders will produce products to meet market demands, while speakers arguing for weaker copy protection seemed to argue that relying on the market doesn't work. I asked Prof. Zittrain if the entire discussion might boil down to faith in the power of the free market. He pointed out the obvious fact that there are major differences in the idea of what copyright should be, and those differences need attention. He went on to say that no one would invent copyright today if it didn't already exist, but since it does, we are stuck with it.
Saturday I attended the Harvard Journal of Law & Technology Symposium on Copyright & Fair Use: Present & Future Prospects. I failed in my responsibility as a blogger to blog the event as it happened, but I have a lot of thoughts on the Symposium that I want to get out. There were two panels, separated by a keynote. This post will address the first panel.
The first panel was titled, "The Future of Copyright and Fair Use in the Digital Era." Despite the title, the focus was more on the past and present of copyright and fair use. The discussion focused on the DMCA and whether it was having effects that were in the interests of the creative industries and of consumers.
The first speaker was Robert Holleyman, President of the Business Software Alliance. The Business Software Alliance is an industry group that works to defend the copyright of software publishers. In practice, this means that the group encourages law enforcement actions against digital piracy. They are notorious, in some circles, for sending letters to businesses and other organizations accusing them of using unlicensed copies of software, and threatening to sue unless the group can document that their software is licensed or the group agrees to pay a settlement for copyright infringement. Not surprisingly, a significant number of groups have decided to settle with the BSA, even if they believe that the software they use is properly licensed, because proving they have the proper licenses would be more expensive than paying the settlement.
Holleyman's position is that software piracy is a major problem that the software industry faces, and something that requires legal support in the form of things like the DMCA. The DMCA (Digital Millenium Copyright Act) was passed in 1998, and states several things that have been having a progressively larger impact on businesses and on university research. The key provision of the DMCA is to assert that copyright holders may use encryption to protect copyrighted works, and that it is illegal to sell tools to defeat this copy protection. Holleyman believes this supports the software industry and consumers by encouraging businesses to release products they otherwise might not without the benefit of copy protection.
Holleyman was followed by several speakers on the other side. The first of this group was Dan Gillmor, Technology Columnist for the San Jose Mercury News and well known blogger. He is concerned that, in spite of the fact that the DMCA has a provision for fair use, under the DMCA, there is no fair use. Fair use is the established copyright principle that when a publisher publishes copyrighted material, other publishers can freely use the copyrighted material for certain "fair uses." These include quotes in reviews, scholarly work, and parody. Under the DMCA, Gillmor says, there is no fair use. While the DMCA specifically allows for fair use, it makes it illegal to sell any tools to enable fair use. In effect, it says, "you have this right, but you have no way to use it."
The next speaker was Gigi Sohn, President and Co-Founder of Public Knowledge, an organization operating on the public's behalf on issues of technology and copyright law. Her concern is different than Gillmor's in that she spoke more about the "chilling effects" of the DMCA. She spoke of the well known case of Edward Felten. The music industry was working at one time on the Secure Digital Music Initiative (SDMI), which developed several technologies intended to combat music copying. As part of that project, they invited teams to attempt to crack the technologies they developed, and offered a cash prize to successful teams. Prof. Felten, rather than claiming the cash prize, wrote a paper which he intended to present at a conference. The music industry responded by sending him a Cease and Desist letter, claiming that presenting the results of his research would violate the DMCA. The music industry eventually backed down and allowed Prof. Felten to present his results, but Sohn states that this action has harmed encryption research, because research is abandoned and potential researchers leave the field out of fear of facing legal action.
The final anti-DMCA speaker was Siva Vaidhyanathan, a professor at NYU. He argued that, while it may appear that the present is a very good time for fair use, the truth is not so clear. He cited two examples. The first was a documentary originally titled "American Girl." The filmmaker received a letter from Mattel which stated that they had a doll called American Girl, they might someday have a movie titled American Girl, and the documentary would have to change its name. The second was of a documentary that has in the background in one shot approximately six seconds of The Simpsons being played on a television. The filmmaker decided they should make sure it was okay for The Simpsons to appear, and sought permission from the copyright holder. The copyright holder said that the filmmaker would have to pay $25,000, and consequently that shot was cut from the documentary.
The last speaker on the panel was Alec French, an attorney on the House Subcommittee on Courts, the Internet, and Intellectual Property. He works under Representative Howard Berman, who earned notoriety in the Internet community during the last session of Congress, in which he proposed a bill making it legal for copyright holders to make attacks on computers believed by the copyright holder to be violating the holder's copyright. Alec French believes that fair use is doing fine and the DMCA is doing precisely what it is intended to do. He states that DVDs exist because of the DMCA, and that the movie studios would not have started producing DVDs without CSS (a form of encryption that licensed DVD players are able to decode) and the DMCA, which backs up CSS by making it illegal to sell devices that defeat CSS. As for fair use, he stated that there is nothing to stop users from pointing a movie camera at a TV playing the DVD and record that. This statement earned a large laugh from the audience.
At that point the panel was opened for discussion and questions. The discussion made it very clear how differently the two sides see many of these issues. The panelists disagreed on the amount of discussion that occurred on the DMCA. Gigi and Siva stated that it was passed with almost no discussion, while Robert and Alec said that years of work went into it. Alec and Robert argued that the DMCA is carefully balanced, and the rest of the panel stated that there is no balance in their view. Siva argued that the DMCA has failed in its goal to prevent piracy, because pirated movies are still available everywhere and because you can buy T-shirts that have the code for DeCSS, a program which defeats CSS, printed on them. Alec stated that it was a success because the ease of use of DeCSS has been limited and consequently piracy has been limited. Discussion also focused on the online needlepoint community. Previously, it had been possible to make a living selling needlepoint designs. Peer to peer file trading has destroyed that business by making it so easy to copy designs that no one pays for them anymore. Alec argued that DRM (software that restricts the ability of users to make copies) will revive that business once DRM gets strong enough. Lexmark printers came up. Lexmark manufactures printers, and another company has started manufacturing print cartridges that can be used in Lexmark printers. Lexmark has sued, stating that the toner cartridge has software that is protected by encryption, and the other company has circumvented the encryption in violation of the DMCA. Gigi thinks this is far outside the range the DMCA was intended to cover, while Alec thinks it's exactly the kind of situation the DMCA was intended to cover.
I am quite proud of the question I asked. I suspect I phrased it better then than I can reconstruct now, but here it is:
As a consumer, I support copyright protection, because I think it's fair that creators should earn money from the things I buy. However, it's clear to me that Robert and Alec have significantly different ideas of what copyright entails than I do.
I have two examples. I have two computers at home, and when I buy a software package, I would like to be able to install it on both computers. As far as the BSA is concerned, I am not entitled to do that. Not being allowed to install it on the second computer makes the computer valueless for me.
The second example has to do with DVDs. There is a television series that I like that is being released on DVD. I like it, but it has some flaws, so I would like to purchase the six DVD set, edit it down to three DVDs, and watch the three DVDs instead. At this point, I can't do that.
My response to this is to say that if that's what copyright means, I should just ignore copyright entirely. How do you respond to people taking this attitude?
Robert stated that if I get value from the second copy of the software, I should be willing to pay for it. Pretty straightforward, but it didn't answer my real question. Alec stated that in his view, editing and recording the DVDs probably constitutes a copyright infringement. By this time, I had stepped away from the microphone, which was probably just as well, because my response may not have been civil. As I ran back to the microphone, the moderator declared that we were out of time, encouraged me to come down and speak to the panelists individually, and asked for final comments by the panel. I was pleased when Siva said that I presented his case better than he had. As I went to speak to Alec and Robert, Gigi also told me I asked a great question.
I was fortunate to be able to continue the discussion over lunch with Alec. During lunch, we laid out our respective sides on copyright. We disagreed on whether editing DVDs for personal use constitutes copyright infringement. I said that it isn't, because I'm not a publisher. Alec said that it is, because copyright isn't about publishing, it's about duplicating, making derivative works, etc. Alec believes that copyright gives unlimited control to the copyright holder. His attitude is, first, that if there is a demand for the edited version of the show, the copyright holder will produce it. Second, if the copyright holder chooses not to make something available, that is their right. I pointed out that while both statements taken individually seem reasonable, together they leave me as a consumer with nowhere to stand. I am at the mercy of the copyright holder.
Alec stated that that is correct. After all, the work is the copyright holder's property, and they can use it as they see fit. I told him I didn't see it as property, and he compared it to a house. If I own a house, he can't come in and sleep there just because he knows I'm not home. The laws and the government back up the house as my property. Similarly, copyright laws back up copyrighted material as the creator's property. Similarly, there are all sorts of other intangibles, such as shares in a company, that have been defined by the law to be property.
It's taken me a while to formulate a good response to that. At the time, I told him that that made sense, but I still disagreed with it. After thinking about it, I was prepared to argue that copyright isn't property. I was set to refer to the Constitution and copyright laws to try to show that in fact, copyright is not property. The problem with that argument is that it reduces the discussion to the level of "Is not!"-"Is too!"
I've realized a better approach is to allow copyright to be called property, as long as it is recognized that the set of laws that define copyright define it as having very different rules than other property. The claim that copyright is property and therefore must obey the same rules as other property is clearly faulty in the face of the fact that it has always been defined by a separate set of rules.
In all this discussion, we got away from my original question, which is how do the supporters of broad copyright power respond to consumers who would rather act as if there's no copyright at all than obey the broad copyright power? I realized several times during the discussion that we had moved back to defining copyright from the question I really wanted to ask, and tried to ask it again several times, but I never got an answer. One of the last questions I asked Alec was, "how do you respond when you say people can point a video camera at the screen and the audience laughs at you?"
His answer could be boiled down to, "I'm right, and everyone else is wrong." I can't avoid feeling like the copyright holders have decided how things are in their minds, and they have absolute faith that their side will win. I couldn't even ask the question of how they feel about the fact that the majority of their customers disagree with them in a way that allowed them to hear the question.