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Subject:    [DMCA_Discuss] The Tyranny of Copyright?
From:       "James S. Huggins \(DMCA Discuss\)" <DMCADiscuss () jsend ! com>
Date:       2004-01-25 6:18:07
Message-ID: 200401250618.i0P6I1AG007418 () jamesshuggins ! com
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http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html

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January 25, 2004

The Tyranny of Copyright?

By ROBERT S. BOYNTON
 
Last fall, a group of civic-minded students at Swarthmore College received a
sobering lesson in the future of political protest. They had come into
possession of some 15,000 e-mail messages and memos -- presumably leaked or
stolen -- from Diebold Election Systems, the largest maker of electronic
voting machines in the country. The memos featured Diebold employees' candid
discussion of flaws in the company's software and warnings that the computer
network was poorly protected from hackers. In light of the chaotic 2000
presidential election, the Swarthmore students decided that this information
shouldn't be kept from the public. Like aspiring Daniel Ellsbergs with their
would-be Pentagon Papers, they posted the files on the Internet, declaring
the act a form of electronic whistle-blowing. 

Unfortunately for the students, their actions ran afoul of the 1998 Digital
Millennium Copyright Act (D.M.C.A.), one of several recent laws that
regulate intellectual property and are quietly reshaping the culture.
Designed to protect copyrighted material on the Web, the act makes it
possible for an Internet service provider to be liable for the material
posted by its users -- an extraordinary burden that providers of phone
service, by contrast, do not share. Under the law, if an aggrieved party
(Diebold, say) threatens to sue an Internet service provider over the
content of a subscriber's Web site, the provider can avoid liability simply
by removing the offending material. Since the mere threat of a lawsuit is
usually enough to scare most providers into submission, the law effectively
gives private parties veto power over much of the information published
online -- as the Swarthmore students would soon learn. 

Not long after the students posted the memos, Diebold sent letters to
Swarthmore charging the students with copyright infringement and demanding
that the material be removed from the students' Web page, which was hosted
on the college's server. Swarthmore complied. The question of whether the
students were within their rights to post the memos was essentially moot:
thanks to the Digital Millennium Copyright Act, their speech could be
silenced without the benefit of actual lawsuits, public hearings, judges or
other niceties of due process. 

After persistent challenges by the students -- and a considerable amount of
negative publicity for Diebold -- in November the company agreed not to sue.
To the delight of the students' supporters, the memos are now back on their
Web site. But to proponents of free speech on the Internet, the story
remains a chilling one. 

Siva Vaidhyanathan, a media scholar at New York University, calls anecdotes
like this ''copyright horror stories,'' and there have been a growing number
of them over the past few years. Once a dry and seemingly mechanical area of
the American legal system, intellectual property law can now be found at the
center of major disputes in the arts, sciences and -- as in the Diebold case
-- politics. Recent cases have involved everything from attempts to force
the Girl Scouts to pay royalties for singing songs around campfires to the
infringement suit brought by the estate of Margaret Mitchell against the
publishers of Alice Randall's book ''The Wind Done Gone'' (which tells the
story of Mitchell's ''Gone With the Wind'' from a slave's perspective) to
corporations like Celera Genomics filing for patents for human genes. The
most publicized development came in September, when the Recording Industry
Association of America began suing music downloaders for copyright
infringement, reaching out-of-court settlements for thousands of dollars
with defendants as young as 12. And in November, a group of independent film
producers went to court to fight a ban, imposed this year by the Motion
Picture Association of America, on sending DVD's to those who vote for
annual film awards. 

Not long ago, the Internet's ability to provide instant, inexpensive and
perfect copies of text, sound and images was heralded with the phrase
''information wants to be free.'' Yet the implications of this freedom have
frightened some creators -- particularly those in the recording, publishing
and movie industries -- who argue that the greater ease of copying and
distribution increases the need for more stringent intellectual property
laws. The movie and music industries have succeeded in lobbying lawmakers to
allow them to tighten their grips on their creations by lengthening
copyright terms. The law has also extended the scope of copyright
protection, creating what critics have called a ''paracopyright,'' which
prohibits not only duplicating protected material but in some cases even
gaining access to it in the first place. In addition to the Digital
Millennium Copyright Act, the most significant piece of new legislation is
the 1998 Copyright Term Extension Act, which added 20 years of protection to
past and present copyrighted works and was upheld by the Supreme Court a
year ago. In less than a decade, the much-ballyhooed liberating potential of
the Internet seems to have given way to something of an intellectual land
grab, presided over by legislators and lawyers for the media industries. 

In response to these developments, a protest movement is forming, made up of
lawyers, scholars and activists who fear that bolstering copyright
protection in the name of foiling ''piracy'' will have disastrous
consequences for society -- hindering the ability to experiment and create
and eroding our democratic freedoms. This group of reformers, which Lawrence
Lessig, a professor at Stanford Law School, calls the ''free culture
movement,'' might also be thought of as the ''Copy Left'' (to borrow a term
originally used by software programmers to signal that their product bore
fewer than the usual amount of copyright restrictions). Lawyers and
professors at the nation's top universities and law schools, the members of
the Copy Left aren't wild-eyed radicals opposed to the use of copyright,
though they do object fiercely to the way copyright has been distorted by
recent legislation and manipulated by companies like Diebold. Nor do they
share a coherent political ideology. What they do share is a fear that the
United States is becoming less free and ultimately less creative. While the
American copyright system was designed to encourage innovation, it is now,
they contend, being used to squelch it. They see themselves as fighting for
a traditional understanding of intellectual property in the face of a
radical effort to turn copyright law into a tool for hoarding ideas. ''The
notion that intellectual property rights should never expire, and works
never enter the public domain -- this is the truly fanatical and
unconstitutional position,'' says Jonathan Zittrain, a co-founder of the
Berkman Center for Internet and Society at Harvard Law School, the
intellectual hub of the Copy Left. 

Thinkers like Lessig and Zittrain promote a vision of a world in which
copyright law gives individual creators the exclusive right to profit from
their intellectual property for a brief, limited period -- thus providing an
incentive to create while still allowing successive generations of creators
to draw freely on earlier ideas. They stress that borrowing and
collaboration are essential components of all creation and caution against
being seduced by the romantic myth of ''the author'': the lone
garret-dwelling poet, creating masterpieces out of thin air. ''No one writes
from nothing,'' says Yochai Benkler, a professor at Yale Law School. ''We
all take the world as it is and use it, remix it.'' 

Where does the Copy Left believe a creation ought to go once its copyright
has lapsed? Into the public domain, or the ''cultural commons'' -- a shared
stockpile of ideas where the majority of America's music and literature
would reside, from which anyone could partake without having to pay or ask
permission. James Boyle, a professor at Duke Law School, notes that the
public domain is a necessity for social and cultural progress, not some sort
of socialist luxury. ''Our art, our culture, our science depend on this
public domain,'' he has written, ''every bit as much as they depend on
intellectual property.'' 

In opposition to the cultural commons stands the ''permission culture,'' an
epithet the Copy Left uses to describe the world it fears our current
copyright law is creating. Whereas you used to own the CD or book you
purchased, in the permission culture it is more likely that you'll lease (or
''license'') a song, video or e-book, and even then only under restrictive
conditions: read your e-book, but don't copy and paste any selections;
listen to music on your MP3 player, but don't burn it onto a CD or transfer
it to your stereo. The Copy Left sees innovations like iTunes, Apple's
popular online music store, as the first step toward a society in which much
of the cultural activity that we currently take for granted -- reading an
encyclopedia in the public library, selling a geometry textbook to a friend,
copying a song for a sibling -- will be rerouted through a system of
micropayments in return for which the rights to ever smaller pieces of our
culture are doled out. ''Sooner or later,'' predicts Miriam Nisbet, the
legislative counsel for the American Library Association, ''you'll get to
the point where you say, 'Well, I guess that 25 cents isn't too much to pay
for this sentence,' and then there's no hope and no going back.'' 

There is a growing sense of urgency among the members of the Copy Left. They
worry that if they do not raise awareness of what is happening to copyright
law, Americans will be stuck forever with the consequences of decisions now
being made -- and laws being passed -- in the name of preventing piracy.
''We are at a moment in our history at which the terms of freedom and
justice are up for grabs,'' Benkler says. He notes that each major
innovation in the history of communications -- the printing press, radio,
telephone -- was followed by a brief period of openness before the rules of
its usage were determined and alternatives eliminated. ''The Internet,'' he
says, ''is in that space right now.'' 


America has always had an ambivalent attitude toward the notion of
intellectual property. Thomas Jefferson, for one, considered copyright a
necessary evil: he favored providing just enough incentive to create,
nothing more, and thereafter allowing ideas to flow freely as nature
intended. ''If nature has made any one thing less susceptible than all
others of exclusive property,'' he wrote, ''it is the action of the thinking
power called an idea, which an individual may exclusively possess as long as
he keeps it to himself; but the moment it is divulged, it forces itself into
the possession of everyone.'' His conception of copyright was enshrined in
Article 1, Section 8 of the Constitution, which gives Congress the authority
to ''promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to their
respective writings and discoveries.'' 

But Jefferson's vision has not fared well. As the country's economy
developed from agrarian to industrial to ''information,'' ideas took on
greater importance, and the demand increased for stronger copyright laws. In
1790, copyright protection lasted for 14 years and could be renewed just
once before the work entered the public domain. Between 1831 and 1909, the
maximum term was increased from 28 to 56 years. Today, copyright protection
for individuals lasts for 70 years after the death of the author; for
corporations, it's 95 years after publication. Over the past three decades,
the flow of material entering the public domain has slowed to a trickle: in
1973, according to Lessig, more than 85 percent of copyright owners chose
not to renew their copyrights, allowing their ideas to become common coin;
since the 1998 Copyright Term Extension Act lengthened present and past
copyrights for an additional 20 years, little material will enter the public
domain any time soon. 

Some of the changes that expanded copyright protection were made with an
understanding of their effects; what also troubles the Copy Left, however,
are the unintended consequences of seemingly innocuous tweaks in copyright
legislation. In particular, two laws that were passed years before the
creation of the Internet helped set the stage for today's copyright bonanza.
Before the 1909 Copyright Act, copyright was construed as the exclusive
right to ''publish'' a creation; but the 1909 law changed the wording to
prohibit others from ''copying'' one's creation -- a seemingly minor change
that thereafter linked copyright protection to the copying technology of the
day, whether that was the pen, the photocopy machine, the VCR or the
Internet. In 1976, a revision to the law dispensed with the requirement of
formally registering or renewing a copyright in order to comply with
international copyright standards. Henceforth, everything -- from e-mail
messages to doodles on a napkin -- was automatically copyrighted the moment
it was ''fixed in a tangible medium.'' 

The true significance of these two laws didn't become apparent until the
arrival of the Internet, when every work became automatically protected by
copyright and every use of a work via the Internet constituted a new copy.
''Nobody realized that eliminating those requirements would create a
nightmare of uncertainty and confusion about what content is available to
use,'' Lessig explains, ''which is a crucial question now that the Internet
is the way we gain access to so much content. It was a kind of oil spill in
the free culture.'' 

Lessig is one of the most prominent and eloquent defenders of the Copy
Left's belief that copyright law should return to its Jeffersonian roots.
''We are invoking ideas that should be central to the American tradition,
such as that a free society is richer than a control society,'' he says.
''But in the cultural sphere, big media wants to build a new Soviet empire
where you need permission from the central party to do anything.'' He
complains that Americans have been reduced to ''an Oliver Twist-like
position,'' in which they have to ask, ''Please, sir, may I?'' every time we
want to use something under copyright -- and then only if we are fortunate
enough to have the assistance of a high-priced lawyer. 

In October 2002, Lessig argued before the Supreme Court in Eldred v.
Ashcroft, which concerned a challenge to the Copyright Term Extension Act.
On behalf of the plaintiffs, Lessig argued that perpetually extending the
term of copyright was a violation of the Constitution's requirement that
copyright exist for ''a limited time.'' The court responded that although
perhaps unwise on policy grounds, granting such extensions was within
Congress's power. It was a major setback for the Copy Left. Given the Eldred
decision, there is nothing to stop a future Congress from extending
copyright's term again and again. 

Lessig's efforts haven't been limited to the courtroom. In 2001, he was part
of a group that founded an organization called Creative Commons, which
offers individual creators the ability to carefully calibrate the level of
control they wish to maintain over their works. The organization services
the needs of, say, musicians who want rappers and D.J.'s to be able to
download and remix their music without legal trouble or of writers who want
their works republished without charge, but only by nonprofit publications.
The Commons has developed a software application for the Web that allows
copyright holders who do not want to exercise all of the restrictions of
copyright law to dedicate their work to the public domain or license it on
terms that allow copying and creative reuses. The aim of Creative Commons is
not only to increase the sum of raw source material online but also to make
it cheaper and easier for other creators to locate and access that material.
This will enable people to use the Internet to find, for example,
photographs that are free to be altered or reused or texts that may be
copied, distributed or sampled -- all by their authors' permission. The
Creative Commons now has a presence in 10 countries, including Brazil, whose
minister of culture, the musician Gilberto Gil, plans to release some of his
songs under the Creative Commons license so that others may freely borrow
from them. Creative Commons is currently talking to Amazon and others about
a plan to release out-of-print books under Creative Commons licenses. 


One of the central ideas of the Copy Left is that the Internet has been a
catalyst for re-engaging with the culture -- for interacting with the things
we read and watch and listen to, as opposed to just sitting back and
absorbing them. This vision of how culture works stands in contrast to what
the Copy Left calls the ''broadcast model'' -- the arrangement in which a
small group of content producers disseminate their creations (television,
movies, music) through controlled routes (cable, theaters, radio-TV
stations) to passive consumers. Yochai Benkler, the law professor at Yale,
argues that people want to be more engaged in their culture, despite the
broadcast technology, like television, that he says has narcotized us.
''People are users,'' he says. ''They are producers, storytellers,
consumers, interactors -- complex, varied beings, not just people who go to
the store, buy a packaged good off the shelf and consume.'' 

A few weeks ago, I met Benkler in his loft in downtown New York. He stroked
his beard while explicating his ideas with the care of a man parsing a
particularly knotty question of Scripture. Benkler was born in Tel Aviv in
1964, and while in his 20's, he helped found a remote desert kibbutz in an
attempt to recapture the Zionist movement's original socialist spirit. The
challenges of creating a community in isolation from the rest of society
ultimately proved overwhelming. ''After a few years,'' he said, ''we
realized that at the rate we were going we wouldn't attend college until we
were in our 50's.'' It was a hard lesson in the difficulty of producing
anything -- a community, a work of art -- in isolation. 

But Benkler's belief in the importance of creating things in common rests on
more than anecdotal evidence. What makes his argument more than wishful
thinking, he said, is that he has some economic evidence for his view.
''Let's compare a few numbers,'' he said. ''How much do people pay the
recording industry to listen to music versus how much people pay the
telephone industry to talk to their friends and family? The recording
industry is a $12 billion a year business, compared with the telephone
business, which is a more than $250 billion a year business. That is what
economists call a 'revealed willingness to pay,' a clear preference for a
technology that allows you to participate in work, socializing and
interaction in general, over a technology that allows you to be a passive
consumer of a packaged good. Is that a study of human nature? No. Is it an
economic measure that would suggest there is a lot of demand out there for
speaking and listening to others? Yes.'' 

According to Benkler, the cultural commons not only offers a better model
for creativity; it makes good economic sense. Like Lessig and other members
of the Copy Left, he takes his bearings from the free software movement and
views the success of products like Linux and services like Google as
evidence of a viable collaborative (or ''peer to peer'') model for producing
and sharing ideas -- a model that will augment and, in some cases, replace
the current model. (He concedes that some products, like novels and
blockbuster movies, will never be produced peer to peer, though they will
draw on the work of artists before them.) 

Benkler predicts that the recording industry will be one of the first
businesses to go. ''All it does is package and sell goods,'' he said,
''which is technically an unfeasible way of continuing. They are trying
their best to legislate the environment to change, but that doesn't mean we
have to let them.'' 


The battle between the Copy Left and its opponents is as much a clash of
worldviews as of legal doctrine. Aligned against the Copy Left are those who
sympathize with the romantic notion of authorship and view the culture as a
market in which everything of value should be owned by someone or other.
Jane Ginsburg, a professor at Columbia Law School who specializes in
copyright law, fears that in the Copy Left's rush to secure the public
domain, it gives short shrift to the author. A self-described ''copyright
enthusiast,'' Ginsburg considers the author the moral center of copyright
law and questions equating copyright control with corporate greed.
''Copyright cannot be understood merely as a grudgingly tolerated way
station on the road to the public domain,'' she writes in a recent article
titled ''The Concept of Authorship in Comparative Copyright Law.'' ''Because
copyright arises out of the act of creating a work, authors have moral
claims that neither corporate intermediaries nor consumer end-users can
(straightfacedly) assert.'' 

Ginsburg and others embrace many elements of the ''permission society''
demonized by the Copy Left and cite developments like the iTunes store as a
sign of greater consumer choice and freedom. In his book ''Copyright's
Highway,'' Paul Goldstein, a professor at Stanford Law School, writes that
''the logic of property rights dictates their extension into every corner in
which people derive enjoyment and value from literary and artistic works.''
He characterizes the permission society as a ''celestial jukebox'' in which
access to every creation -- music, literature, movies, art -- is available
to anyone for a price. 

An entire ''digital rights management'' industry has arisen to bring this
vision to fruition, each company calibrating a particular license through a
system of micropayments -- play a song on your computer for one price;
transfer it to your MP3 player for a slightly higher fee. Goldstein argues
that the scheme of a business like iTunes is actually more efficient and
democratic than the commons model championed by the Copy Left. ''The problem
with the commons is that it doesn't take into consideration the direction of
the payment; it doesn't reveal what kind of culture gets used and what kind
doesn't,'' he says. ''I think it is good to have a price tag attached to
each use because it tells producers what consumers want; it lets them vote
with their purchase for the kinds of culture they want.'' 

But the Copy Left is convinced that there is a better way for the
entertainment industry to adapt to the Internet age while still paying its
artists their due. William Fisher, director of the Berkman Center, has spent
the last three years devising an alternative compensation system that would
enable the entertainment industry to restructure its business model without
resorting to cumbersome micropayments. He has worked out a modified version
of the system that artists' advocacy groups currently use to make sure that
composers are paid when their music is performed or recorded. According to
Fisher's plan, all works capable of being transmitted online would be
registered with a central office (whether government or independent is
unclear). The central office would then monitor how frequently a work is
used and compensate the creators on that basis. The money would come from a
tax on various content-related devices, like DVD burners, blank CD's or
digital recorders. It is a brave proposal in a political culture that is
allergic to taxes and uncomfortable with complex solutions. Still, if his
numbers do indeed add up, Fisher's proposal might be the best thing that
ever happened to the cultural commons: the creators would be paid, while
every individual would have unlimited access to every cultural creation. 

Fisher and Charles Nesson, his colleague at Harvard Law School, have showed
this proposal to movie executives and lawyers for several media
conglomerates. Fisher says that his ideas have been received with great
interest by the very industries -- music, home video -- that see their
business models disintegrating before their eyes. 

When asked whether he thinks his ambitious scheme has a chance, Fisher says
that the likeliest possibility would be for it to be adopted in countries
that are neither so developed that they have signed on to international
copyright protocols nor so undeveloped that they are desperate to do so.
Only second-world countries, like Croatia or Brazil, he speculates, are
unfettered enough to try something new. ''The hope is in the rain forest,''
he says, in countries that ''are more like the United States was before
1890, when we were a 'pirate' nation.'' 

And in the United States, is there any future for this sort of payment
system? Perhaps when the various current schemes fail, Fisher's plan will
seem more attractive, he says. ''What is involved here is nothing less than
the shape of our culture and the way we think of ourselves as citizens,'' he
adds. He describes a recent letter he received from a supporter of his work.
''When they come for my guns and my music, they'd better bring an army,'' it
read. ''People are used to being creatively engaged with the culture,''
Fisher explains. ''They won't let someone legislate that away.'' 

The future of the Copy Left's efforts is still an open question. James Boyle
has likened the movement's efforts to establish a cultural commons to those
of the environmental movement in its infancy. Like Rachel Carson in the
years before Earth Day, the Copy Left today is trying to raise awareness of
the intellectual ''land'' to which they believe we ought to feel entitled
and to propose policies and laws that will preserve it. Just as the idea of
environmentalism became viable in the wake of the last century's advances in
industrial production, the growth of this century's information
technologies, Boyle argues, will force the country to address the erosion of
the cultural commons. ''The environmentalists helped us to see the world
differently,'' he writes, ''to see that there was such a thing as 'the
environment' rather than just my pond, your forest, his canal. We need to do
the same thing in the information environment. We have to 'invent' the
public domain before we can save it.'' 




Robert S. Boynton, director of the graduate magazine journalism program at
New York University, is writing a book about American literary journalism.




Copyright 2004 The New York Times Company 





///James S. Huggins




... 

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