Date: Mon, 26 Feb 2001 19:24:39 -0800
From: Phil Agre <pagre@alpha.oac.ucla.edu>
To: "Red Rock Eater News Service" <rre@lists.gseis.ucla.edu>
Subject: [RRE]Digital Copyright


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Date: Mon, 26 Feb 2001 21:35:24 -0500
From: Jessica Litman <litman@mindspring.com>

[...]

Digital Copyright
Jessica Litman
Prometheus Books 2001
ISBN 1-57392-889-5
www.digital-copyright.com

	The Internet has been hailed as the most revolutionary social
development since the printing press.  In many ways its astonishing
growth has outstripped any historical analogy we can unearth.
What has fueled much of that growth has been the explosion of
new possibilities for connections -- among people, among different
formerly discrete packages of information, among ideas.  Digital
media and network connections, it is said, are the most democratic of
media, promoting free expression and access to information wherever a
computer can be hooked up to a telephone line.

	In this celebration of new possibilities, we tend to emphasize
the many things that become feasible when people have ready access
to information sources and to other people not practicably available
before.  The scope and the speed of interconnected digital networks
make conversations easy that before were unimaginable.  But the
technological marvel that makes this interconnection possible has
other potential as well.  Digital technology makes it possible to
monitor, record and restrict what people look at, listen to, read and
hear.  Why, in the United States, would one want to do such a thing?
To get paid.  If someone, let's call him Fred, keeps track of what we
see and hear, that enables Fred to ensure that we pay for our sights
and sounds.  Once information is valuable, an overwhelming temptation
arises to appropriate that value, to turn it in to cash.

	Now that technology permits the dissemination of information
on a pay-per-view basis, we've seen the emergence of new way of
thinking about copyright: Copyright is now seen as a tool for
copyright owners to use to extract all the potential commercial value
from works of authorship, even if that means that uses that have
long been deemed legal are now brought within the copyright owner's
control.  In 1998, copyright owners persuaded Congress to enhance
their rights with a sheaf of new legal and technological controls.
Armed with those copyright improvements, copyright lawyers began
a concerted campaign to remodel cyberspace into a digital multiplex
and shopping mall for copyright-protected material.  The outcome of
that effort is still uncertain.  If current trends continue unabated,
however, we are likely to experience a violent collision between our
expectations of freedom of expression and the enhanced copyright law.


Table of Contents

Introduction
1. Copyright Basics
2. The Art of Making Copyright Laws
3. Copyright and Compromise
4. A Thought Experiment
5. Choosing Metaphors
6. Copyright Lawyers Set Out to Colonize Cyberspace
7. Creation and Incentives
8. "Just Say Yes to Licensing!"
9. The Bargaining Table
10. The Copyright Wars
11. Copyright Law in the Digital Millennium
12. Revising Copyright Law for the Information Age
13. The Copyright Bargain


chapter 2

The Art of Making Copyright Laws

Copyright lawyers are a peculiarly myopic breed of human being.
There is something fundamental about coming to understand that current
law may make it technically illegal to watch a movie and then imagine
what it would have looked like if the studio had cast some other actor
in the leading role, that renders one unfit for ordinary reflective
thinking.  Nonetheless, sometimes one can step back and perceive,
in a dim sort of way, that one's tribe is doing something stupid.
Realizing that doesn't get one very far.  The institutional and legal
structure of the copyright community makes it difficult to prevent
foolish approaches to new technology.

Copyright laws become obsolete when technology renders the assumptions
on which they were based outmoded.  That has happened with increasing
frequency since Congress enacted the its first copyright law in 1790.
Inevitably, new developments change the pitch of the playing field.
Industries affected by copyright find that the application of old
legal language to new contexts yields unanticipated results.  They
find themselves to be the beneficiaries of new advantages and the
victims of new disadvantages, and respond about the way you would
expect them to, with efforts to regain old benefits while retaining
the new ones.

The first U.S. copyright statute, for example, gave authors exclusive
rights to "print, reprint, publish and vend" -- in other words,
to control the reproduction and sale of copies.  A model based
on compensating the author for the sale of every copy became
unsatisfactory to authors when other means of exploiting works
eclipsed the sale of copies.  Consider, for instance, composers of
popular music: So long as the chief source of revenue for popular
songs was the sale of sheet music, composers fared well under the
system.  Although public performances of music might generate no
royalties, musicians and singers performing the songs would need
(purchased) sheet music in order to perform, so composers shared
indirectly in the performance revenues.  Once it became possible to
record a musical performance on a piano roll or phonograph record and
to make and sell hundreds of those, or to broadcast performances over
the radio, however, composers could be excluded from the additional
proceeds generated by the recording or broadcast.  Establishments in
the habit of performing music without seeking permission responded
unenthusiastically to composers' proposals for a remedy.  Thus, each
technological advance inspired a dispute about whether it entitled
copyright owners to expanded rights over their works.  Each camp
claimed the support of fundamental truth.  Even King Solomon would
have had trouble deciding between them every time the problem arose:
there are only so many times you can threaten to slice up a baby
before its putative mothers get wise.

About 100 years ago, Congress got into the habit of revising copyright
law by encouraging representatives of the industries affected by
copyright to hash out among themselves what changes needed to be made
and then present Congress with the text of appropriate legislation.
By the 1920s, the process was sufficiently entrenched that whenever
a member of Congress came up with a legislative proposal without
going through the cumbersome pre-legislative process of multi-party
negotiation, the affected industries united to block the bill.
Copyright bills passed only after private stakeholders agreed with one
another on their substantive provisions.  The pattern has continued to
this day.

A process like this generates legislation with some predictable
features.  First of all, no affected party is going to agree to
support a bill that leaves it worse off than it is under current law.
That means that negotiating industries need to identify some potential
surplus they can divide up among themselves to get enough support for
new proposals, and that surplus most often comes at the expense of
outsiders.  Here's a simple example: copyright terms have been getting
longer and longer.  Between 1978 and 1998, most copyrights expired at
the end of their 75th year.  As Mickey Mouse, who first appeared in
1927, came face to face with the imminent expiration of his copyright,
Disney's eyes turned toward Europe, where a number of countries had
recently lengthened their copyright terms to match Germany's term
of life of the author plus 70 years.  Proprietors of aging but still
profitable works asked Congress to tack 20 additional years onto the
term of every extant copyright.  A copyright term that is 20 years
longer makes both licensors (or owners) and licensees (commercial
users) better off, because licensors get an extra 20 years on their
revenue stream, and licensees get an extra 20 years of exclusivity.
The proposal, therefore, enjoyed widespread support.  It posed
problems for publishers of public domain works, but most publishers
were enthusiastic and the publishers' lobbies pushed it.  It was also
a problem for libraries, who can make more extensive use of public
domain works than they can of copyright-protected works, so the
proposal's supporters agreed to a library exception to the 20 year
term extension.  That still isn't great for members of the public,
who are (the Constitution tells us) supposed to get unfettered access
to all protected works after a limited period of copyright, but the
general public doesn't sit at the negotiating table.

Second, there's a premium on characterizing the state of current law
to favor one's position, since current law is the baseline against
which proposals are negotiated.  So, if university libraries, say,
are liable under current law if they make lots of photocopies of
law review articles at the request of professors who want file
copies, library associations are likely to be more willing to support
legislation that gives them a partial, limited, contingent exemption
from this sort of photocopying in return for tacking 20 more years
on to the copyright term.  If, however, current library photocopying
practices are perfectly legal, people who want to get libraries to
sign off on term extension need to come up with something else to
offer as a bribe.

Third, the way these things tend to get settled in the real world is
by specifying.  Libraries say, "we need a privilege to make copies
for patrons who request them".  Book publishers say, "well, okay, you
can make the copies but other folks can't," (so we need a definition
of libraries who qualify for the privilege) "and you can only make
this many copies, and you can make them only in these circumstances".
Television broadcasters say, "we need to make copies so that we can
edit a program to include commercials and station ID".  So movies
studios and music publishers say, "well, okay, you can make copies
but other folks can't," (and now we have a new specific privilege and
a definition of broadcasters who get to use it) "but you can only make
this many copies, and you can make them only in these circumstances".
Record companies say, "we need a license to make copies so we can
make all those records and tapes and CDs that bring royalties into
composers' pockets without having to call up and ask permission for
every song".  So composers and music publishers say, "well, you can
have a statutory license, but you have to pay for it, and you have to
send us monthly royalty statements, and you can only make records for
the home user, not for jukeboxes or Muzak".

You see the pattern.  As the entertainment and information markets
have gotten more complicated, the copyright law has gotten longer,
more specific and harder to understand.  Neither book publishers or
libraries have any interest in making the library privilege broad
enough so that it would be useful to users that aren't libraries,
and neither movie studios nor broadcast stations have any interest
in making the broadcaster's privilege broad enough to be of some
use to say, cable television or satellite TV, so that doesn't
happen.  Negotiated privileges tend to be very specific, and tend
to pose substantial entry barriers to outsiders who can't be at the
negotiating table because their industries haven't been invented yet.
So negotiated copyright statutes have tended, throughout the century,
to be kind to the entrenched status quo and hostile to upstart new
industries.

The Internet has generated a lot of hype in the past decade, and
that has encouraged the people who run the current information and
entertainment industries to look at it as at least as much of a threat
as an opportunity.  The Internet sometimes gets characterized as a
giant copying machine that facilitates widespread and undetectable
copyright infringement.  That's about 50% hype -- the Internet
facilitates widespread copying, but it also facilitates detection
of copying.  Still, you can see how it would be a scary idea.  The
Internet also gets painted as the next new thing that will replace
conventional newspapers and television and phonograph records in our
lives.  That's also probably hype, but you can see how that notion
might bother newspaper publishers and television networks and record
companies.  The Internet gets promoted as a new market we'll use to
sell everything from computer software to vacation homes, and while
that may be an attractive idea, it's far from clear that the current
market leaders in the sales of computer software and vacation homes
are going to be the new market leaders in the new medium.

So, this new Internet thing hits the radar screen, and it's big, and
it's scary, and everybody wants a piece of it.  The commercial lawyers
scurry off to redraft the Uniform Commercial Code to cover electronic
contracts, and the civil liberties lawyers worry about strong
encryption and sexually explicit Usenet news.  And in the early 1990s,
the dominant players in the entertainment and information industries
got cracking on reforming the copyright law to make the Internet
safe for then-leading copyright owners.  Copyright owners argued that
the U.S. currently dominated the world in film, music, television,
computer software, and databases, and if the Internet weren't made
safe for copyright owners, either all the people in all the other
countries would get together and steal all our stuff, or U.S.
copyright owners would decline to put their stuff on the Internet
(because it wasn't safe) and the U.S. might lose the advantage of
world leadership on this new medium.  (Neither claim turned out to be
true in practice, to the extent we can gather empirical evidence one
way or the other, but they are the sort of claims that have always
sold well to Congress.)

When we get to the down-and-dirty of formulating actual proposals for
legislation, interested parties' first tactic is to claim that extant
copyright law already gives them whatever it is they want.  (When it
came to the Internet, it was a little hard to square this with the
claim that unless Congress did something, U.S. industries would stay
out of the online market, but that claim was already proving to be
demonstrably false.)  The dynamics of the copyright negotiation make
it important to claim that you already have all, or at least most,
of whatever it is you're asking for.  If you want Internet service
providers to be held liable for their subscribers' infringing
activities, for example, it will be easier to accomplish that if you
claim that current law imposes such liability (but that you would
be willing to bargain towards a suitably narrow limitation), than
to demand that Congress impose that liability in the first instance.
But, Congress had enacted the current copyright law more than 20
years earlier, so it would have been hard to argue that Congress had
the Internet in mind.  To make the case that copyright law already
provided the enhanced protection they wanted, copyright owners needed
some statutory language to hang their new improved interpretation on.
That limited their options.

Thus constrained, the claim that some people made was this: the
copyright statute gives the copyright owner the exclusive right to
reproduce protected works in "copies," subject only to the exceptions
enumerated in the statute.  (I mentioned some of those earlier: these
are privileges for libraries, and broadcasters and record companies
and the like to make limited numbers of copies in particular
situations.)  A computer works by reproducing things in its volatile
Random Access Memory, and anything that exists in volatile memory
could, at least in theory, be saved to disk (the argument continued),
so each appearance of any portion of a work in any computer's random
access memory is a reproduction in a copy within the meaning of the
statute.  That would mean -- since there are no enumerated exceptions
for Internet-related uses -- that the copyright owner has the legal
right to control, enjoin, or collect money for every single appearance
of a work in the memory of any computer anywhere.  Moreover, since the
reproduction right is the "fundamental" copyright right (after all,
that's why we call it copyright), any diminution in this important
fundamental right would impede the progress of science and the useful
arts.

If you think about the argument for a moment, you can see that,
if it sells, it gives copyright owners control not only over every
time America Online uses pictures of Captain Kirk and Mr. Spock to
advertise its "Star Trek" chat group, but also over every time an
AOL subscriber uses her computer to view the ad, and also over every
computer-to-computer transmission the packets of data make to get from
AOL's webserver to the user's computer.  That means that, in theory,
AOL, and its subscriber, and the proprietors of the University of
Illinois computer and the MCI computer that the data happens to travel
through on that particular day are all copyright infringers, even
though they may have no way of knowing that these anonymous electrons
infringe Paramount's proprietary rights.

They couldn't mean that, right?  But they did.  And, as a practical
and political matter, it turned out to be a brilliant legal argument.
Copyright owners who want to ensure that they control -- and can
charge money for -- any appearance of their works in any computer
anywhere, argued that Congress gave them that right twenty years
ago, and that all they were asking for now was some support for their
efforts to enforce it.  The argument succeeded -- copyright owners
were able to persuade Congress to pass a law mandating a variety of
technological protections to facilitate a pay-per-view, pay-per-use
system using some sort of automatic debit payment before anyone can
have access to anything.  The ingeniousness of the argument depended
in part on its corollary: if a copyright owner's rights were infringed
every time parts of a work passed through a computer, then the current
users of the Internet (and of computers, fax machines, compact disk
players, and quite possibly ordinary telephone service), and the folks
who operated all the equipment they used, were lawbreakers and could
be held liable for hundreds of thousands of dollars in damages each.
That bogeyman convinced many of the stakeholders to go along with the
basic scheme in return for a specific exemption insulating each of
them from liability.

Politically, then, the argument was understandable, even inspired.  As
a matter of policy, though, it carried horrific implications.  Setting
the basic compensible unit of copyright (which is also the basic
infringing unit) at the ephemeral RAM copy in volatile memory sets
it at a place that implicates the fundamental operation of computers
on what is essentially an atomic level.  It means that all appearance
of works in computers -- at home, on networks, at work, in the library
-- need to be effected in conformance with, and with attention to,
copyright rules.  That's new.  Until now, copyright has regulated
multiplication and distribution of works, but it hasn't regulated
consumption.  If you buy a book, or even borrow a book, you're free
to read it as many times as you like.  You can loan it to somebody
else.  You can sell it or give it away or even rent it out.  You
can't make copies of it, but you can use it and use it and use it
again.  But, if every time a work appears in the Random Access Memory
of your computer, you are making an actionable copy, then we have
for the first time given copyright owners extensive control over the
consumption of their works.

By using so basic an atomic unit, we're proposing to put copyright
rules in place as the most basic "rules of the game" in cyberspace.
If we adopt that model, it is unavoidable that the answers to a lot
of questions that we're used to thinking about as questions central
to our information policy, are going to be answers that derive, first,
from the copyright view of the universe.  That is, I'm not talking
only about questions like whether a person who writes something
is entitled to get paid when another person reads it.  The current
digital copyright agenda seeks to supply copyright answers to a whole
range of basic policy questions ranging from who is entitled to access
to what on whose terms, to whether citizens have any privacy interest
whatsoever in personal data.  These are the sorts of questions that
the American legal system has struggled with for some years under
the umbrella of information policy, but the digital copyright agenda
supplies copyright answers to all of them.  And because copyright
lawyers talk to each other too much, we can't even see how crazy that
idea looks from the outside world.

There are a variety of characteristics that copyright law rules
reflect that make them unsuitable for the basic infrastructure of our
information policy.  Let me start with a basic one: copyright rules
are complicated and hard to understand.  There are a lot of reasons
for that, but the most obvious one is that our copyright rules were
hammered out by copyright lawyers to adjust the commercial relations
among their clients.  Sometimes the best solution to any particular
dispute involved drawing some peculiarly counter-intuitive lines.
So long as the rules are being drawing by copyright lawyers for
their clients (all of whom, by definition, have copyright lawyers),
it doesn't much matter that the only way to know what the rules say
is to commit a 200-some page statute to memory.  That's what copyright
lawyers are paid for.  But once we try to make these rules apply
to the everyday activities of every person on the planet, a set of
rules that only lawyers -- and, indeed, only specialists -- could be
expected to be able to work with won't do.  And, in fact, it's even
worse than that, because a number of the rules that copyright lawyers
take for granted are so very counter-intuitive that people commonly
refuse to believe that those could possibly be the rules.

A simple example here are the rules governing when bars, restaurants
and stores need a copyright license to play the radio or television
or recorded music where their patrons can hear it.  The basic rules
were settled years ago.  Most small businesses playing recorded
music and many businesses playing television or radio needed to buy
a performing license.  ASCAP, BMI and SESAC -- all music performing
rights societies -- were delighted to sell performance licenses to
any establishment that wished to play music.  Licenses were cheap,
a matter of a few hundred dollars per year.  Nonetheless, because
proprietors of small businesses found the well-settled rules
incredible, dozens of them litigated -- every year -- at a cost
of hundreds of thousands of dollars, because they couldn't believe
that those rules were really the rules.  And they always lost.
Even so, the next year there were another dozen small business owners
who were determined to litigate, and they lost too.  Members of the
general public commonly find copyright rules implausible, and simply
disbelieve them.

Now, the copyright answer to this difficulty, by which I mean
theanswer that copyright interests are suggesting that the world
adopt, is to encourage the use of technological devices that make
unauthorized copying or use impossible, and the enactment of stiff
laws to penalize anyone for hacking around or disabling these devices.
That way, people won't have to know what the rules are because it will
be impossible for most of them to break them.  (This is sort of like
installing a device in every automobile that disables it from going
any faster than 55 miles per hour.  55 miles per hour used to be the
speed limit, but nobody believed in it, nobody obeyed it, and now it's
history.)  Which illustrates another basic problem: the information
policy solutions devised by copyright lawyers negotiating among
themselves are inevitably copyright-centric.  But copyright law
has a narrow focus.  It has never paid attention to a whole host of
important interests that have traditionally informed our information
policy, and copyright analysis turns out to have very little room in
it to do so.

Until recently, that problem was of more theoretical than real
concern.  So long as copyright governed the transactions among
commercial and institutional actors, but left most individuals alone,
it was usually possible to strike a deal to do whatever it was you
needed to do, and one could often find at least rough surrogates for
individual members of the public in the designated copyright-affected
industries.  Individuals, for example, have a limited home-recording-
for-personal-use privilege that was secured for them by the litigation
and legislative negotiation of the manufacturers of home recording
equipment.

But the threat and promise of the Internet has induced copyright
lawyers to an act of breathtaking hubris.  We get together and come
up with what we say ought to be, and are now, the basic copyright
rules of the road, and then we construe those rules so that they
govern every single way that information coded in electrons can move
from one computer to another.  We don't ask whether these rules will
be sufficiently sensitive to the core policies that have animated our
information law for years and years; we just say, "oh, its never been
a problem before . . .".  But with a change that radical, there may
not be any business or institutional interests that are likely to
act as representatives of the public interest.  Instead, what you see
are Internet service providers, or telephone companies who say: "Well,
gee, it's okay with me if all my subscribers have a lot of exposure
for reading stuff you don't want them to read, so long as you write a
provision into the law that ensures that I'm exempt".

If Congress were in the habit of looking hard at copyright proposals
to see whether their substantive provisions were good policy, or would
interact in good ways with other policies, one might have expected
this exercise to come to an early end.  People who aren't copyright
lawyers, after all, would look at the digital copyright agenda and
say, "there's something wrong with this picture".  But, because
the tradition in copyright legislation involves getting a bunch of
copyright lawyers to sit at a bargaining table and talk with one
another, a lot of important questions were never asked.

In 1998, copyright lobbyists persuaded Congress to enact a 26,000
word, 50 page coda to the copyright statute setting forth a new and
convoluted series of rights and exceptions for digital copyright.
Among other innovations, the new law for the first time purports to
make it illegal for individual consumers to gain unauthorized access
to protected works.  There are a slew of exceptions, for computer
security experts engaged in testing the security of a particular
computer system, for example, or for law enforcement officers
investigating crimes, but they are cast in prose so crabbed and
so encumbered with conditions as to be of little use to anyone who
doesn't have a copyright lawyer around to explain which hoops to jump
through.

U.S. copyright law is based on a model devised for print media, and
expanded with some difficulty to embrace a world that includes live,
filmed and taped performances, broadcast media, and, most recently,
digital media.  The suitability of that model for new media is
controversial.  As one might expect, to the extent that current legal
rules make some parties "haves" and others "have-nots," the haves are
fans of the current model, while today's have-nots suggest that some
other model might be more appropriate for the future.  Meanwhile,
copyright lawyers, who, after all, make their livings interpreting and
applying this long and complex body of counterintuitive, bewildering
rules, insist that the current model is very close to the platonic
ideal, and should under no circumstances be jettisoned in favor of
some untried and untrue replacement.  They naturally prefer to make
the copyright rules they know the rules that all of us need to operate
under whenever we encounter copyrighted works.  Congress, for its
part, is content to let them make the rules they want to.

That puts us in very real danger of adopting a set of rules for our
information society that few of us can live with.  Deferring to the
copyright bar to write those rules will serve us badly, but persuading
Congress to use another approach is, at best, unlikely to succeed.
Since members of Congress are disinclined to ask the right questions
without prodding from their constituents, it has become crucially
important for the general polity to appreciate the huge stake it has
in how those questions are answered.

end