A Public Policy Report

Second edition, revised and updated, © 2003. With additional updates in 2004 (html version only).      

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Author of the report: Marjorie Heins
Design: Stephanie Elizondo Griest

Grateful thanks to Cindy Cohn, Seth Finkelstein, Chris Hansen, Benjamin Kaplan, Judith Krug, Lawrence Lessig, Paul DiMaggio, Wendy Seltzer, David Sobel, Peter Tsapatsaris, Siva Vaidhyanathan, and Julie Van Camp for helpful feedback on the first edition of this report.

Thanks to Blossom Lefcourt for research assistance.

CONTENTS

Executive Summary

Introduction: The "Difficult Balance" Between Copyright and Free-Expression

I. Four Free-Expression Safety Valves

The Idea/Expression Dichotomy

Fair Use

The First Sale Rule

The All-Important Public Domain

II. Freezing the Public Domain: The Battle Over the Sonny Bono Law

The Politics of Copyright Extension

Defending the Public Domain: Eldred v. Ashcroft

Eldred in the Supreme Court

The "Difficult Balance" Revisited: What is a "Limited Term"?

III. The Ins and Outs of Circumvention: The Digital Millennium Copyright Act

Locking Up Expression and Shrinking Fair Use

Effects of the DMCA

Cases Involving Scholarship

The Irrepressible "DeCSS" Code

Squelching Competition

Researching Internet Filters

The Circumvention Dilemma

IV. File Sharing, Free Exchange, and the Online Commons

Napster and Its Successors

Universities, New Lawsuits, and Corporate Sabotage

Solutions: Restoring the Copyright-Free Expression Balance

Conclusion and Recommendations

EXECUTIVE SUMMARY

Copyright – our system for protecting and encouraging creativity – has been described as "the engine of free expression."1 But copyright can also interfere with free speech – with the public's right to share, enjoy, criticize, parody, and build on the works of others. Resolving these sometimes conflicting claims requires policymakers, in the words of the Supreme Court, to strike a "difficult balance" between rewarding creativity through the copyright system and "society's competing interest in the free flow of ideas, information, and commerce."2

A critical component of this "difficult balance" is the system of free-expression "safety valves" within copyright law. Four of these safety valves – the "idea/expression dichotomy," the concept of fair use, the so-called first-sale rule, and the public domain – provide necessary breathing space for free trade in information and ideas. The free-expression safety valves keep the system in balance and prevent the monopoly control created by copyright law from becoming rigid and repressive.

But the "difficult balance" has become lopsided in recent years. With the advent of electronic communications, and in particular the Internet, the media companies that make up the "copyright industry" have adopted techniques of "digital rights management," which control the accessing and use of creative materials in ways that are often inconsistent with a free and democratic copyright system. Two federal laws, both passed in 1998, have further distorted the system by favoring the industry at the expense of the public's interest in accessing, sharing, and transforming imaginative works.

One of these laws, the "Sonny Bono Copyright Term Extension Act," extended the term of copyright protection to nearly a century for corporations and even longer for many individuals and their heirs. It consequently delayed the time when cultural products will enter the public domain and be freely available. The other law, the "Digital Millennium Copyright Act" (DMCA) made it a crime to distribute technology that circumvents the industry's electronic locks on books, films, articles, software, or songs – even though circumvention itself is not always illegal, and even though a ban on technology strikes directly at scientific research.

Meanwhile, battles over online "file sharing" of music, movies, books, and software have created a crisis in the entertainment industry, alienated many fans, and failed to resolve the question of how much sharing should be allowed or whether all of it should be stringently prosecuted as a violation of copyright law.

The courts have not always been equal to the task of resolving these copyright conflicts. A constitutional challenge to the Sonny Bono law was rejected by the Supreme Court in 2003. The Court's decision ignored the law's adverse effects on culture, and seemed to suggest that Congress, by continually extending the term of copyright, can freeze the public domain indefinitely. But in the process of fighting this well-publicized case, many defenders of the public interest – archivists, libraries, and scholars among them – began to organize and advocate for changes in the copyright system that could help bring valuable if long-forgotten works into the public domain.

There have already been many lawsuits involving the DMCA. In one early case, the federal government criminally prosecuted a company that created a device to decrypt electronic books. Although a judge rejected the company's defense – that its circumvention device had legitimate (indeed, constitutionally protected) uses that would not infringe the copyrights on e-books – a jury eventually acquitted the company. But in another case, online journalists who distributed "DeCSS," a program for decrypting DVDs, were found to have violated the DMCA even though the program could be used in ways that would not infringe copyright. The courts even ordered the defendants to remove links on their Web site to other sites that contained the DeCSS code.

To fight online file-sharing, the music industry went to court to shut down Napster. New, less centralized systems like Grokster and KaZaA, however, quickly replaced Napster, and the industry has not so far persuaded the courts that these digital copying and sharing technologies are themselves "contributory" infringers of copyright. But the war against file-sharing has only intensified. In late 2003, the industry sued more than 200 individuals, including teenagers, for sharing music online.

Public interest groups, scholars, librarians, artists, computer scientists, and others in the growing "copyleft" movement are responding to the copyright crisis with projects that encourage the sharing of information and creative works. Some promote and distribute free software. Others are advocating for a more flexible system that would allow material lacking in current commercial value to enter the public domain sooner.

Conflicts between "strong" copyright control and free expression today thus occupy center stage in the public policy arena. The diversity and vitality of our culture depends on resolving these conflicts in a way that maximizes artistic and intellectual freedom.

NEXT: INTRODUCTION

ENDNOTES

1. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).

2. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).