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The Next Frontier: "Intellectual Property" and Intellectual Freedom

Julie M. Boucher Memorial Lecture, Colorado Association of Libraries, Oct. 18, 2002

By Marjorie Heins

Thank you so much for inviting me to the beautiful state of Colorado. I always feel honored to address librarians. First Amendment lawyers may be useful from time to time, but as far as I'm concerned, it's librarians who make intellectual freedom a reality in people's lives. From combating Internet filters and other efforts to censor youth, to helping bridge the "digital divide," libraries have been on the front lines of all the important free-expression battles.

Today I want to talk to you about a new battleground in the culture wars -- copyright. Or, as it is sometimes oxymoronically called, intellectual property. I say oxymoronic because literature, music, and other creations of the human imagination are not the same as land, cars, or corporate bonds – things we ordinarily think of as property. The media companies that control most copyrights in this country of course disagree -- which explains why copyright is such a hotbed of political strife today. For in order to protect their intellectual property, these companies have persuaded Congress to pass sweeping and troublesome new laws, with tongue-twister names like the Sonny Bono Copyright Term Extension Act and the Digital Millennium Copyright Act (or, for short, the DMCA).

Copyright, even more than other areas of law, is a special priesthood with its own rituals and incantations, incomprehensible to the uninitiated. But since it has now become a major free-speech battleground, it behooves us to try to untangle the doctrine and translate the sacred texts. I promise to do so this morning without resorting to legal mumbo-jumbo and thereby reducing you to a catatonic state. It helps that although the legal constructs can get convoluted, copyright law is basically about art, culture, and the human imagination, and therefore is full of marvels.

So, here's the roadmap. First, perhaps the world's shortest introduction to copyright and its tenuous balancing act with free expression. Next, how Congress has frozen the public domain by continually extending the duration of copyright, and how a coalition including libraries has challenged that state of affairs in a case that was argued just last week in the Supreme Court. Finally, the mysteries of the DMCA, with its draconian restrictions on developing or discussing certain technologies that can be used to circumvent encryption systems for copyrighted works.

The Balancing Act

When we think of creativity and free expression, it's the First Amendment of course that comes to mind. But the section of the Constitution that specifically states an intention "to promote the progress of science and useful arts" is the Copyright Clause. It authorizes Congress to grant "for limited times to authors and inventors the exclusive right to their respective writings and discoveries."1

This language is critical. It talks about an "exclusive right" -- but only for "limited times." The monopoly control and profits that the Constitution lets Congress give to authors, artists, and scientists to reward their creativity are only temporary.

This plan for limited times reflects a vision of culture as growing from past achievements. Art and knowledge do not, as one scholar quipped, rise full-grown, like "Aphrodite from the foam of the sea."2 From Shakespeare to James Joyce, Michelangelo to Andy Warhol, artists, authors, and historians have echoed, copied, and in the process transformed the creations of the past. Rock music, folk, blues, and jazz all borrow themes and melodies from earlier creations.3 The Copyright Clause recognizes this richness of cultural borrowing by contemplating that creative works will, after a "limited time," enter the public domain, and be freely available to all.

But even during the limited term of copyright, free expression has to be considered. Scholars, gadflies, maverick publishers, library users, and these days of course Web site owners want to copy, disseminate, quote, discuss, and borrow. The media companies that make up the copyright industry want to lock up, charge money for access, and basically control all uses of their products. Hence the tension between wide-open freedom of speech and the temporary monopoly envisioned by the Copyright Clause.

The tension is a familiar one in our cultural history. In 1995, the American Society of Composers, Authors, and Publishers (ASCAP) demanded fees from summer camps for songs the kids sang around their campfires. Disney similarly threatened daycare centers that had likenesses of its famous cartoon characters painted on their walls.4 From attempts to stop the new technology of "piano rolls" in 1908 to efforts to ban the video cassette recorder in the 1980s and "anti-circumvention" laws like the DMCA that restrict access to copyrighted works today, the media industry has pushed for stronger controls.

To counterbalance this push for control, copyright law has developed four major free-expression safety valves. The first of these is the so-called idea/expression dichotomy, which allows facts and ideas to be copied as long as the author's particular language, details of plot or character, or specific imagery isn't used. The idea of star-crossed lovers whose families object, and whose passion comes to a tragic end, would not be copyrightable even if Will Shakespeare had written his version of the story just last week. (In fact, Shakespeare also borrowed – he took the plot of Romeo and Juliet and his other masterpieces from existing sources.)

The second free-expression safety valve is the fair use doctrine. It allows anyone to copy or quote from copyrighted works for purposes of commentary, criticism, study, or even (perhaps especially) mockery. Not only does fair use allow culture to thrive, it also prevents publishers and authors' estates from suppressing ideas about their works which they dislike, including the sometimes stinging criticism and parody that they might prefer not to be heard.

So, when the rap group Two Live Crew borrowed the melody and parodied the words of Roy Orbison's song, "Oh! Pretty Woman," in a vulgar manner that the corporate copyright holder did not appreciate, the Supreme Court indicated that it was probably fair use. Even though intended to make money, Two Live Crew's raunchy version served the important free-speech purpose of mocking the "white bread" original.5

More recently, author Alice Randall faced a fair-use battle when she borrowed characters and plot line from Gone With the Wind to produce The Wind Done Gone, a fictionalized critique of the racism that pervades Margaret Mitchell's classic novel. The Wind Done Gone mentions homosexuality and interracial sex, both of which the Mitchell estate specifically prohibits in "derivative works."6 A trial judge banned The Wind Done Gone, saying it was an unauthorized sequel. The appeals court reversed, finding it to be fair use.7

The third free-expression safety valve -- and an especially important one for libraries -- is the first sale doctrine. Copyright owners control the first sale of their works, but after that, purchasers can give them away, sell them, lend them to friends, or donate them to secondhand stores, libraries, schools, or flea markets. Libraries can loan books innumerable times to countless borrowers (who in turn can lend them to their friends, as long as someone returns them on time).8

The first sale doctrine not only facilitates the spread of knowledge, it also recognizes the limits of copyright enforcement. For, to try to monitor what millions of individuals do with the books, CDs, and videos they buy would require a level of surveillance unacceptable to most Americans.Yet, as we'll see, the industry's encryption of copyrighted works today drastically undermines the ability to lend, re-sell, or give away -- the core of the first sale doctrine.

The fourth free-expression safety valve is the public domain, which makes works available for republishing, translating, selling, copying, or performing as soon as the "limited time" of copyright expires. Now, most of the copyright industry has a severe allergic reaction to the public domain. It says works are neglected and decay when nobody with monopoly control is motivated to preserve them. Fans of the public domain counter that it enhances preservation of works that are neglected because the copyright owner sees no immediate profit (particularly photographs and films). Once these works are in the public domain, archivists don't need to go through the laborious, expensive, and often futile process of trying to locate the owner and seek permission.

Here's an example of the debate. In a recent article, Paramount Pictures vice president Scott Martin cites the classic Frank Capra movie, It's a Wonderful Life, which entered the public domain at the end of its first copyright term because its owner failed to file a timely renewal application. (This was back in the days when the copyright term was 28 years, renewable for another 28.) As a result, Martin says, "the film was endlessly broadcast by local stations and cable channels looking for no-cost programming." It was "sliced and diced" to fit into time slots between commercials. "By the 1980s," he says, "there were multiple versions of the film, all in horrid condition." But once the owners of the rights to the story and music asserted their copyright claims, "the film was spruced up and restored," with marvelous results.9

There's another interpretation of this story, though. All those allegedly "horrid" copies enabled lots of people to see the film. In addition, anyone who has been on an airplane or watched movies on TV knows that media companies frequently allow their precious copyright-protected masterpieces to be "sliced and diced" (not to mention cutting out naughty words or scenes). Hence, the public domain can hardly be blamed for insults to the integrity of creative works.

Like preservation, scholarship is also enhanced by the public domain. Historians can reproduce pictures, letters, sound recordings, and other documents without pursuing what is often a futile quest for copyright permission. Even when owners can be found, they may refuse permission, or impose unpalatable conditions. The estate of songwriter Lorenz Hart, for example, will not allow any biographer who mentions Hart's homosexuality to reprint his lyrics. The deceased poet Sylvia Plath's husband, Ted Hughes, along with his sister Olwyn, strictly controlled what biographers and anthologizers could say about her life and their stormy marriage in exchange for permission to quote her poems or letters.10

Finally, of course, the public domain enhances access. Works that were unavailable, or available only in expensive editions, can be published and distributed cheaply, often with new introductory or supplementary material. The year after Willa Cather's My Antonia entered the public domain, seven new editions appeared, with different introductions and varying prices – a pattern that critics say is typical.11

The Frozen Public Domain: Eldred v. Ashcroft

Despite these virtues of the public domain, over the last century it has become less a reality than a receding mirage. In the "Sonny Bono Copyright Term Extension Act," passed four years ago, Congress stretched the "limited" term of copyright to a near-century for corporations and even longer for most individuals and their heirs. This is a far cry from the original "limited time" of 14 years, renewable for another 14, that was set in 1790 by the first copyright law.

Congress extended that term only twice in the next century and a half -- to 28 years, renewable for another 14, in 1831; and to 28 renewable for another 28, in 1909.12 Between 1962 and 1974, however, Congress enacted nine short-term extensions, to prevent older works from entering the public domain while it prepared the massive copyright revision of 1976.13 That law changed things radically by adopting a long, flexible term: life of the author plus 50 years for individuals and their estates; 75 years for works "made for hire" (that is, owned by corporations).14

By the 1990s, the copyright industry wanted still more. Among other items of intellectual property, the original Mickey Mouse, who debuted in the film Steamboat Willie in 1928, was slated to enter the public domain in 2003; Pluto, Goofy, and Donald Duck were not far behind. Disney and other firms began "some aggressive lobbying," as one journalist put it, accompanied by large, well-timed, and "well-targeted campaign contributions."15 The result, in 1998, was another extension, for 20 years. Named for one of its leading sponsors, the Sonny Bono law extended the "limited time" to 95 years for corporations and author's life plus 70 years for individuals or their estates.16

As one scholar quipped, this does begin to look like perpetual copyright "on the installment plan."17 Indeed, Mary Bono, who succeeded to her husband's seat in Congress, reported that "Sonny wanted the term of copyright protection to last forever." She added that Jack Valenti of the Motion Picture Association of America (the MPAA) had suggested a term of "forever less one day."18

Among those perturbed by the latest term extension was Eric Eldred, founder of a small online enterprise called Eldritch Press. Eldred's idea was to provide easily readable public-domain texts online. The subjects range from small boats to children's stories to works by Henry James. In 1997, the National Endowment for the Humanities recognized Eldritch Press as "one of the 20 best humanities sites on the Web."19

Eldred was set to add works by Sherwood Anderson and Robert Frost, among others whose copyrights were about to expire, when the Sonny Bono Act intervened. He began to complain publicly, at about the same time that a law professor and computer whiz named Larry Lessig began considering a legal challenge to the Sonny Bono law. (Other plaintiffs in the case he eventually filed included Dover Publications, famous for quality reprints of public domain works, a company that restores old films, a church choir director, and a publisher of classical sheet music.)

There are three legal theories in Eldred's case. First is that the Sonny Bono law violates the Copyright Clause requirement of "limited times"; that is, if Congress can keep extending existing copyrights, then "limited time" becomes meaningless; it can be extended indefinitely. Second, the law contradicts the purpose of the Copyright Clause, to motivate creativity, since extending monopoly rights for already-created works by definition does nothing to encourage their creation. Finally, the law violates the First Amendment by preventing older works from entering the public domain.

These theories were ingenious but novel, and the courts made quick work of them. A federal judge dismissed Eldred's suit, and in February 2001, the Court of Appeals affirmed. It ruled that neither the opening words of the Copyright Clause ("to promote the progress of science and useful arts") nor its requirement of "limited times," prevents Congress from extending copyright as much or as often as it likes. As for the First Amendment, the court said that nobody other than the copyright holder has a "First Amendment interest in a copyrighted work."20 Of course, the only reason there was a copyright holder for the works in question (such as Steamboat Willie) was that the very law Eldred was challenging prevented them from entering the public domain. The court's reasoning was thus completely circular.

Lessig now asked for Supreme Court review, and an array of library groups, law professors, archivists, writers, computer professionals, arts and humanities alliances, and media centers joined in urging the Court to take the case. Last spring, the Supremes obliged, and in May, 14 friend-of-the-court briefs were filed supporting Eldred and explaining in vivid terms the costs to culture when Congress freezes the public domain.

The brief from the College Art Association, for example, joined by the National Humanities Alliance and other groups whose members study, publish, and preserve visual art, explains that scholars assembling texts and databases often cannot locate the owners of copyrights in letters, songs, photographs, and other documentary material. Frankly, most scholars have neither the time nor the financial resources to embark on such quests. And when copyright owners are located, some refuse permission or charge prohibitive licensing fees. Film scholars suffer particularly, because most film journals will not publish even a single film frame without copyright permission.21

Another brief came from online archives. They explain that the Internet allows countless forgotten or hard-to-find works to be discovered and distributed. Archives now "digitize and distribute millions of out-of-copyright books, movies, and music ... materials that commercial publishers, distributors, and rights-holders have effectively abandoned."22

For example, the Steven Spielberg Digital Yiddish Library, with 12,000 works, has "helped turn a dying literature into the most in-print literature on the planet." By contrast, "other parts of our culture and heritage remain obscured behind the wall of copyright." Early issues of The New Yorker, Time, Readers Digest, and other magazines "provide an unparalleled window into early 20th century American life and culture." But unlike the treasures in the Spielberg archive, "few if any of these works can be found online because they are still under copyright. Until they fall into the public domain, the process of clearing rights for each article, drawing, and photograph makes digital archiving of such composite works practically impossible."23

A brief from the American Association of Law Libraries, the Medical Library Association, and the American Library Association, among others, describes Documenting the American South, an electronic collection that provides no-fee access to more than 1,000 publications and manuscripts. It includes about 160,000 pages of slave narratives, of which, in many cases, only a few hard copies exist, along with Confederate imprints and materials on the African American church. Before digitization, hardly anyone got to see them. Now they are accessed by more than 5,000 people per year. The project would be impossible without the public domain.24

As if to outdo Eldred's supporters, those on the government's side submitted 20 friend-of-the-court briefs to the Supreme Court. Several came from the copyright industry; others from celebrated copyright holders -- the estates of George Gershwin and George Balanchine (among others who joined a brief from the Association of American Publishers); the Songwriters Guild; AmSong, Inc. (whose members include Bob Dylan, Carlos Santana, and Thelonious Monk, Jr.); and the estates of E.B. White and Dr. Seuss.25 Their general theme was an assumption -- inaccurate, as we've seen -- that a creative work is a form of property which the author and her heirs should control forever.

The Dr. Seuss brief went the farthest in denying any value in the public domain, noting with distaste that some public domain entrepreneurs and comedians have borrowed well-known images "to glorify drugs or to create pornography."26 The assumption here, of course, is that irreverent and even scandalous uses of famous images should be suppressed. These writers' heirs seem unwilling to accept that the very success of their creations has made them into cultural icons that will inevitably be critiqued and parodied.

I'm reminded of the notorious "Disney Orgy," a parody created by Paul Krassner for The Realist magazine in the 1960s. This hilarious cartoon depicts Mickey, Minnie, and many other Disney characters in sexually suggestive or drug-imbibing situations. And despite the Disney company's efforts over the years to suppress it, the "Orgy" remains an important commentary on the Disneyfication of American culture, and enjoys a well-deserved underground following to this day.

Not all famous authors, by the way, support "perpetual copyright on the installment plan." William Gass, Peter Matthiessen, and Ursula Leguin, among others, joined a brief to the Supreme Court from the National Writers Union on Eldred's side. They point out that Disney, which has worked so hard to freeze the public domain, nevertheless has taken advantage of it many times by creating animated versions of Snow White, Cinderella, The Hunchback of Notre Dame, and other classics.27

Now, the Eldred case is not an easy one. As the government argues, how is a court to determine what is an appropriate, or constitutionally permissible "limited time"? The Copyright Clause does seem to give Congress discretion to make this judgment. And perhaps, as defenders of strong copyright protection argue, fair use, the idea/expression dichotomy, and other free speech-friendly facets of the law are enough to protect intellectual freedom, no matter how long copyright lasts. But if this is so, then arguably the most important free-expression safety valve -- the public domain -- could disappear into a black hole where "limited time" becomes meaningless.

On October 9, Lessig argued Eldred v. Ashcroft before a packed audience in the Supreme Court's chambers. Several of the justices seemed incensed by the Sonny Bono law. Sandra Day O'Connor, for example, said the law "flies directly in the face" of the "very short term" of copyright that the framers of the Constitution had in mind; but she wondered whether this necessarily made it unconstitutional. Justice Ruth Bader Ginsburg had a variant on the same question: should there be any judicial review of Congress's decisions in this area?, she asked.

Justice Stephen Breyer seemed clearly on the plaintiffs' side: responding to the government's argument that Congress can legitimately promote "science and useful arts" not by encouraging creativity but simply by rewarding the distributors of already-created works, he asked Solicitor General Ted Olsen whether Congress could therefore pass a law granting copyrights for the Bible, Shakespeare, or Ben Jonson? The question was obviously rhetorical, but Olsen was reluctant to say that even this would be unconstitutional.28

Several other justices seemed inclined to invalidate at least the law's extension of existing copyrights. But O'Connor asked Lessig whether this wouldn't mean that the 1976 Act was unconstitutional as well, since it also extended existing copyrights. Lessig said the Court could make a distinction because of the settled expectations created by the ‘76 Act. The question is perhaps the hardest one the Court confronts as it wrestles with a law most of its members seem to understand is a perversion of the copyright system.

The Ins and Outs of Circumvention

Now let's turn to the apocalyptically named Digital Millennium Copyright Act – the DMCA. This law is the industry's dream answer to the problem of copying on the Internet, but for scholars studying encryption, it's a nightmare.

The law originated with a 1994 "Green Paper" that the Clinton Administration produced in response to industry concerns about downloading and sharing copyrighted material online. The problem of commercial piracy is of course a serious one (as it was before the invention of the Internet). The question is how to address it without undermining copyright's free-expression safety valves. The Green Paper took a radical approach, asserting that every reading or viewing of a work on a computer should be considered a reproduction for purposes of copyright law.29 Such an expansive view of the law not only eliminates the first sale doctrine online, it locks up everything that in the offline world could be freely browsed in a bookstore or library. As one copyright professor put it: "Browsing through a borrowed book, lending a magazine to a friend, copying a news article for your files – all seem innocuous enough. But the Clinton administration plans to make such activities illegal for works distributed via digital networks."30

Starting from this radical premise, Congress now crafted a law to help the industry prevent unauthorized access to, or use of, copyrighted works. The resulting DMCA not only makes it a crime to circumvent the industry's encryption devices in order to access works, but also criminalizes the intellectual process of creating or distributing circumvention tools.31 These "tools" provisions of the DMCA (sometimes called the "anti-trafficking" provisions) go well beyond anything previously contemplated in the law -- for instead of penalizing copyright infringement, they ban research and communication of information that might be used for infringement.32

Here's how it works. In early 2001, a group of music companies issued a "Public Challenge" to computer experts to see if they could circumvent the watermarks used to encrypt copyright-protected music. Edward Felton and fellow scientists at Princeton cracked the codes, and were preparing to discuss their research at an upcoming conference when they received a letter from the Recording Industry Association of America (the RIAA), threatening legal action under the DMCA if the researchers published or publicized their work. Felton and other scientists sued to challenge the RIAA's threatened use of the DMCA. The RIAA now backed off, saying that its letter was "a mistake" (although reserving the right to threaten other scholars in the future).

The government moved to dismiss the case, arguing that it was "not ripe," given that there was no pending DMCA suit or realistic fear of one. In the end, the case was dismissed; Felton had already presented his findings at another conference.33

Russian researchers were not so fortunate. In July 2001, federal agents arrested a young programmer named Dmitri Sklyarov at a conference in Nevada after he presented parts of a dissertation on "eBooks Security - Theory and Practice." The paper described a program he had developed to disable the Adobe company's e-Book Reader, encryption software for electronic books, and to allow the books' owners to change their formats for easier reading, printing, copying, or re-arranging, much of which would qualify as fair use. The program was legal in Russia where Sklyarov had created it as an employee of the ElcomSoft Company.34

The arrest of a scholar for discussing technical research caused quite a stir, and in December, the government agreed to "defer" the charges against Sklyarov in exchange for his agreement to testify at a criminal prosecution of ElcomSoft.35 When, a few months later, ElcomSoft moved to dismiss these criminal charges, library groups filed a friend-of-the-court brief arguing that "digital rights management" (or DRM) technologies like Adobe's e-Book Reader restrict traditional First Amendment-protected activities such as lending or partial copying that qualifies as fair use. Corporations may be free to impose such restrictions on their products, but giving them the force of law through the DMCA, they said, violates the First Amendment.36

The federal court did not agree. Acknowledging that DRM tools like Adobe's e-Book Reader do indeed restrict activities protected by the first sale and fair use doctrines, the court said Congress nevertheless has the power to "sacrifice" these rights. Besides, the court said, the DMCA doesn't eliminate fair use – encryption may disable a computer's convenient cut-and-paste functions, but e-book owners can still retype or hand-copy the text.37

Here the court echoed another DMCA case -- and the most hotly fought one to date. This one involved a suit by the film industry to suppress a program called DeCSS, which unlocks the industry's "Contents Scramble System" (CSS) for DVDs, and enables them to be played on machines that don't have descramblers. DeCSS was created in 1999 by three European programmers, one of them a Norwegian 15 year-old, Jon Johansen, whose main interest was not copying but playback on open source Linux-based computers.38

The movie companies did not sue Johansen, or the hundreds of Web publishers and activists who by now were discussing, describing, and distributing DeCSS online. Their suit instead focused on Eric Corley, proprietor of a Web site popular with hackers, which had published DeCSS as part of a news article. Following a trial in 2000, a federal judge prohibited Corley and two other defendants from publishing DeCSS or posting it on the Internet; later, he barred Corley from hyperlinking to Web sites where DeCSS could be found.39

The Corley case epitomized the shrinking of fair use more dramatically than ElcomSoft. For, as the judge in ElcomSoft said, those wanting to copy portions of a work for criticism, scholarship, or other fair use purposes, can still do so by laboriously retyping by hand. With visual images, retyping just doesn't work. To obtain a film clip, or even a single frame, one must copy it.

Cryptographers, law professors, the ACLU, and the ever-heroic American Library Association were among the groups supporting Corley in his appeal. The ACLU/ALA brief pointed up both the draconian effects and the enforcement problems of the DMCA. Columbia law professor Jane Ginsburg (daughter of Supreme Court Justice Ruth Bader Ginsburg) links to sites where DeCSS is posted during her copyright course. Protesters have worn "T-shirts bearing portions of the DeCSS source code."40 The prospect of federal agents confiscating T-shirts or wading into a law school class to prevent computer links to Web sites suggests that Congress's and the industry's attempts to stop decryption may be both wrongheaded and ineffective.

But the court of appeals in the Corley case, fearful of widespread copying and offended by the hacker attitude, upheld the DMCA's application to DeCSS. The court noted that the trial judge's original order had only barred posting DeCSS; the order was extended to bar hyperlinks only after Corley defiantly announced his intention to engage in "electronic civil disobedience" by linking to other Web sites containing the program.41

The DMCA's ban on decryption technology is constitutional, said the court of appeals, because there is no other way to prevent piracy, even if circumvention for fair use purposes gets eliminated in the process. Moreover, neither the trial judge's order nor the DMCA abolished the right of fair use -- they merely made its exercise more difficult. Although Corley insisted that the public "should not be relegated to a 'horse and buggy' technique in making fair use of DVD movies," the court said, people can still write film reviews, quote dialogue, and record portions "by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie."42

But the court of appeals put its finger on the circumvention dilemma when it identified "two unattractive alternatives: either tolerate some impairment of scientific communication in order to stop piracy, or tolerate some unlawful decryption in order to avoid censorship."43 With the DMCA, of course, Congress chose to impair a great deal of communication in an attempt to stop not only commercial piracy but individual, nonprofit copying and sharing of the kind that Americans have always enjoyed.

Copyright enforcement will never be perfect, nor should it be. As numerous commentators have observed, a leaky system is best, for culture and free expression. Whether copying songs, pictures, or articles for friends and colleagues is or is not a technical violation of copyright law, it has largely been "below the radar" in the past, and has hardly interfered with the profits of the copyright industry The legitimate goal of stopping commercial piracy should not be an excuse for turning the Internet into a police state or making criminals of computer scientists, Linux-lovers, or teenage music fans.

This winds up my primer on the treacherous frontiers of copyright law. These are difficult issues – with important stakes for intellectual freedom. By necessity, I've left out a lot. But I hope that what with Mickey Mouse, Dr. Seuss, and It's a Wonderful Life, I've kept my promise of keeping you awake.

NOTES

1. U.S. Constitution, article I, §8, clause 8. "Science," in 18th century parlance, meant literature and learning; "useful arts" meant inventions and discoveries; see 1 Melville Nimmer & David Nimmer, Nimmer on Copyright (2002), § 1.03, at 1-66.17 n.1.

2. Jessica Litman, "The Public Domain," 39 Emory Law Journal 965, 966 (1990). As Supreme Court Justice Joseph Story explained about 50 years after the Copyright Clause was written, "few, if any, things" in literature, science and art are "strictly new and original. ... [Every creative work] borrows, and must necessarily borrow, ... much which was well known and used before." Emerson v. Davies, 8 F. Cas. 614, 619 (No. 4,436) (CCD Mass. 1845), quoted in Campbell v. Acuff-Rose Music, Inc., 510 U.S.569 (1994).

3. See Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: NYU Press, 2001), pp. 117-48; Brief of Amici Curiae National Writers Union et al. in Support of Petitioners, Eldred v. Ashcroft, No.l 01-618 (S.Ct., 2001 Term), p. 11.

4. James Surowiecki, "Righting Copywrongs," The New Yorker, Jan. 21, 2002; "ASCAP Clarifies Position on Music in Girl Scout Camps," ASCAP press release, Aug. 26, 1996, www.ascap.com/press/1996/ascap-082696.html (accessed 10/25/02). Similarly, in the 1970s, ASCAP tried to stop grocery stores from playing radios unless they paid licensing fees for the songs that were broadcast; see Jane Ginsburg, "Copyright and Control Over New Technologies of Dissemination," 101 Columbia Law Review 1613, 1622 (2001); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975).

5. Campbell v. Acuff-Rose Music, Inc., 510 U.S.569 (1994). The fair use defense to copyright infringement turns on four factors (although courts may consider other factors as well). The four set out in the law are: "(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole;" and "(4) the effect of the potential market for or value of the copyrighted work." 17 U.S.C. § 107; see Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560-61 (1985).

6. See SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001); Wendy Gordon, "Authors, Publishers, and Public Goods: Trading Gold for Dross," 36 Loyola of Los Angeles Law Review, fall 2002, www.llr.lls.edu (accessed 8/23/02), p. 20.

7. SunTrust Bank v. Houghton Mifflin Co., 136 F. Supp.2d 1357 (N.D.Ga. 2001), vacated, 252 F.3d 1165 (11th Cir. 2001), reversed, 268 F.3d 1257 (11th Cir. 2001). The case subsequently settled: the Mitchell estate dropped its suit and in exchange, Randall's publisher made an unspecified contribution to Morehouse College in Atlanta. Newsletter on Intellectual Freedom (American Library Association), July 2002, p. 177.

8. The first sale doctrine is codified at 17 U.S.C. §109(a).

9. Scott Martin, "The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection," 36 Loyola of Los Angeles Law Review, fall 2002, www.llr.lls.edu (accessed 8/23/02), pp. 40-43.

10. See Testimony of Arizona State University Professor Dennis Karjala, reproduced in The Copyright Term Extension Act of 1995, Hearing on S. 483 Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (Sept. 20, 1995), p. 83 n.8, cited in Brief of College Art Association, Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers and National Initiative for a Networked Cultural Heritage as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), p. 9; see also Frances McCullough, "Sylvia Plath's Journals," New York Review of Books, Jan. 18, 1990; Janet Malcolm, The Silent Woman: Sylvia Plath and Ted Hughes (New York: Knopf, 1994).

11. See Minority Views of Senator Hank Brown, Senate Report No. 104-315 (July 10, 1996), cited in Brief of College Art Association, Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers and National Initiative for a Networked Cultural Heritage as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), p. 25.

12. Act of Feb. 3, 1831, ch. 16, §§ 1, 16, 4 Stat. 436, 439; Act of Mar. 4, 1909, ch. 320, §§ 23-24, 35 Stat. 1080-81.

13. Public Law No. 87-668, 76 Stat. 555 (1962); Public Law No. 89-142, 79 Stat. 581 (1965); Public Law No. 90-141, 81 Stat. 464 (1967); Public Law No. 90-416, 82 Stat. 397 (1968); Public Law No. 91-147, 83 Stat. 360 (1969); Public Law No. 91-555, 84 Stat. 1441 (1970); Public Law No. 92-170, 85 Stat. 490 (1971); Public Law No. 92-566, 86 Stat. 1181 (1972); Public Law No. 93-573, Title I, § 104, 88 Stat. 1873 (1974).

14. Public Law No. 94-553, § 304, 90 Stat. 2572 (1976).

15. James Surowiecki, "Righting Copywrongs," The New Yorker, Jan. 21, 2002; see also Daren Fonda, "Copyright Crusaders," Boston Globe Magazine, Aug. 29. 1999.

16. Public Law No. 105-298, § 102, 112 Stat. 2827 (1998), amending 17 U.S.C. §§ 301-304.

17. The Copyright Term Extension Act of 1995, Hearing on S. 483 Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995) (statement of Professor Peter Jaszi).

18. 144 Cong. Rec. H9946, 9952 (Oct. 7, 1998) (statement of Mary Bono); Victoria Slind-Flor, "Breyer Seen as Key Justice on Copyright," National Law Journal, Feb. 25, 2002, p. A13.

19. Daren Fonda, "Copyright Crusaders," Boston Globe Magazine, Aug. 29. 1999.

20. Eldred v. Reno, 239 F.3d 372, 375-76, rehearing denied, 255 F.3d 849 (D.C. Cir. 2001).

21. Brief of College Art Association, Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers and National Initiative for a Networked Cultural Heritage as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), p. 13. For a list of the other briefs and their signers, see the Eldred web site, eldred.cc/news.

22. Brief of Amici Curiae the Internet Archive, Prelinger Archives, and Project Gutenberg Literary Archive Foundation Filed on Behalf of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002).

23. Brief of Amici Curiae the Internet Archive, Prelinger Archives, and Project Gutenberg Literary Archive Foundation Filed on Behalf of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002).

24. Brief Amici Curiae of the American Association of Law Libraries, et al., in Support of Petitiioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), p. 19. The librarians' brief also addresses a small exemption in the Sonny Bono law that allows libraries to reproduce and distribute works that are in their final 20 years of copyright, for purposes of research and preservation -- but only if the works are not currently profitable for their owners, and if copies cannot be obtained "at a reasonable price." The exemption is so narrow, says the brief, that it "may ultimately do little, as a practical matter, to mitigate the substantial burdens" of the Sonny Bono law. Id., 29-30. The library exemption is found in 17 U.S.C. § 108(h). It adds to a section of the copyright law that permits libraries to make limited copies for purposes of preservation or replacement, and allows members of the public to make partial copies as long libraries post copyright warnings near the photocopy machines. 17 U.S.C. § 108 (a)-(f). Section (g) explains that the law contemplates "the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions" – as opposed to "related or concerted reproduction or distribution," which is illegal.

25. Officially, these amici were Dr. Seuss Enterprises, L.P., Allene White (owner of most of E.B. White's copyrights), and Madeleine and Barbara Bemelmans, heirs of Ludwig, the author of the Madeline books. Brief Amici Curiae of Dr. Seuss Enterprises et al., Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002).

26. Brief Amici Curiae of Dr. Seuss Enterprises et al., Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), p. 19.

27. Brief of Amici Curiae National Writers Union et al. in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. 7, 13-14.

28. Heins notes, Oct. 9, 2002; see also Linda Greenhouse, "Justices Hear Arguments on Extension of Copyrights," New York Times, Oct. 10, 2002, p. C1.

29. Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), p. 95.

30. Pamela Samuelson, "The Copyright Grab," 1995, www.negativland.com/white.html (accessed 10/24/02). See also Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), pp. 90-96; Mike Godwin, "Copywrong: Why the Digital Millennium Copyright Act Hurts the Public Interest," Reason, July 2001, p. 57.

31. 17 U.S.C. § 1201(a)(1)(A), (b). The DMCA provides both civil and criminal penalties – up to a $500,000 fine or five years in prison for a first offense, and up to $1 million or 10 years in prison for subsequent offenses. 17 U.S.C. §§ 1203, 1204.

32. Like the Sonny Bono law, the DMCA contains a narrow exemption for libraries, which are allowed to circumvent encryption to access a work "solely in order to make a good faith determination of whether to acquire a copy," and only if the work "is not reasonably available in another form." 17 U.S.C. § 1201(d).

33. David McGuire, "Scientist Ends Crusade Against Copyright Law," Washington Post, Feb.6, 2002, www.newsbytes.com/news/02/174284.html; "Federal Judge Stymies Professor's Challenge of Digital-Copyright Law," Associated Press, Nov. 29, 2001, www.freedomforum.org/templates/document.asp?documentID=15439&printerfriendly=1 (accessed 1/30/02); "EFF Protects Scientists' Speech in RIAA Case," Electronic Frontier Foundation press release, Oct. 25, 2001, www.eff.org/Legal/Cases/Felton_v_RIAA/20011025_eff_felton_pr.html (accessed 10/16/02).

34. See Richard Smith, "Digital Copyright Act Harms Research," MSNBC Online, July 30, 2001, stacks.msnbc.com/news/607194.asp#BODY (accessed 1/30/02); Jennifer 8. Lee, "Man Denies Digital Piracy in First Case Under ‘98 Act," New York Times, Aug. 31, 2001, p. C3; Ariana Eunjung Cha, "Keep Digital Copyright Law Intact, Agency Says," Washtech.com, Aug. 30, 2001, www.washtech.com/news/regulation/12209-i.html (accessed 1/30/02).

35. Jennifer 8. Lee, "In Digital Copyright Case, Programmer Can Go Home," New York Times, Dec. 14, 2001, p. C4; Jason Hoppin, "Feds Drop Copyright Case Against Russian Programmer," The Recorder, Dec. 14, 2001, www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=A (accessed 12/14/01).

36. Amicus Brief of the Electronic Frontier Foundation et al. in United States v. Elcom Ltd. et al., CR 01-20138 RMW (N.C.Cal. Feb. 4, 2002), pp. 5-7, 22-23. The American Association of Law Libraries and the Music Library Association were among the signers.

37. Order Denying Defendants' Motions to Dismiss the Indictment on Constitutional Grounds, United States v. Elcom Ltd. et al., CR 01-20138 RMW (N.C.Cal. May 8, 2002), pp. 11-19.

38. See "Interview with Jon Johansen," LinuxWorld.com, n.d.,www.linuxworld.com/linuxworld/lw-2000-01-dvd-interview.html (accessed 11/5/02). Thanks to Seth Finkelstein for correcting an error in the original version of this speech, attributing the creation of DeCSS solely to Johansen.

39. Universal City Studios v. Reimerdes, 111 F.Supp. 346 (S.D.N.Y. 2000). It was not clear why the studios chose to sue only Corley, but his lawyers suggested that it was because he had "been a gadfly in the field of computer security, publishing information that often embarrasses security professionals and others." Brief of the Appellants in Universal City Studios v. Corley, No. 00-9185 (2nd Cir. 2001), p. 6.

40. Brief of Amici Curiae American Civil Liberties Union et al. in University City Studios v. Corley, No. 00-9185 (2nd Cir. 2001). In addition to the ALA, others signers of this brief were the Association for Research Libraries, Music Library Association, National Association of Independent Schools, Electronic Privacy Information Center, and Computer & Communications Industry Association.

41. Universal City Studios v. Corley, 273 F.3d 429, 441 (2nd Cir. 2001). The court also noted the origins of "2600" – it is the hertz frequency "of a signal that some hackers formerly used to explore the entire telephone system," and thus "has special significance to the hacker community." Id. at 436 n.2.

42. Universal City Studios v. Corley, 273 F.3d 429, 459 (2nd Cir. 2001).

43. Universal City Studios v. Corley, 273 F.3d 429, 458 (2nd Cir. 2001).


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