A Public Policy Report

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

For a copy of the report in pdf, click here.

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All reprints should have the following preface: Reprinted from the Free Expression Policy Project, a think tank on artistic and intellectual freedom, www.fepproject.org.

                                                         PREVIOUS: CONTENTS AND EXECUTIVE SUMMARY

INTRODUCTION: THE "DIFFICULT BALANCE" BETWEEN COPYRIGHT AND FREE EXPRESSION

When we think of creativity and free expression, it is the First Amendment that usually comes to mind. But there is another section of the Constitution whose explicit purpose is "to promote the progress of science and useful arts." This is the Copyright Clause, and it authorizes Congress to grant "for limited times to authors and inventors the exclusive right to their respective writings and discoveries."3 The theory is that creative people need the promise of financial reward to motivate them to produce art, music, literature, scholarship, and scientific innovation.

Copyright owners these days, of course, are not necessarily impecunious writers, artists, or philosophers chewing at their tattered overcoats. Corporations own many copyrights, and trade groups are aggressive in asserting the "exclusive right" to control and profit by copyrighted works.

In the 1970s, for example, the American Society of Composers, Authors, and Publishers (ASCAP) tried to stop grocery stores from playing radios unless they paid fees for the songs that were aired. Twenty years later, ASCAP demanded fees from summer camps for songs the children sang around their campfires. The Walt Disney Company threatened daycare centers that had likenesses of Mickey Mouse painted on their walls.4 From attempts to stop the technology of "piano rolls" in 1908 to the 1998 Digital Millennium Copyright Act, restricting access to copyrighted works today, media companies have pushed for stronger controls.

It is a mistake, however, to think that the monopoly control bestowed by copyright is absolute. From the beginning, copyright law was intended to balance the rights of owners against those of the public – to give just enough incentive to enhance creativity. When the English Parliament passed the first modern copyright law, the Statute of Anne, in 1710, it did so in part to stop publishing monopolies "from oppressing authors, potential competitors, and the public."5 The first American copyright law, in 1790, covered only books, maps, and charts, and granted monopoly control for a mere 14 years (renewable for another 14).6 The Copyright Clause itself specifies only "limited times" for monopoly control of creative works, after which they enter the public domain – that is, they become freely available for anyone to publish, sell, copy, or preserve.

Even during the "limited time" of copyright protection, the "exclusive right" is not perfect or absolute.7 Not every copying of copyrighted material, nor every song sung at a beach party or birthday bash, is unlawful unless the copyright owner is found and gives permission. In part, this flexibility simply reflects a recognition of practical realities. But it is also a vital element of the "difficult balance" between open access and copyright control. Free-expression safety valves within the copyright system, such as allowing the public to make "fair use" of copyrighted works, thus provide essential lubrication for copyright's "engine of free expression."

Aggressive assertions of copyright control over the last quarter century have often ignored this necessary play in the joints. In the early 1980s, for example, entertainment companies sued the Sony Corporation to stop distribution of the Betamax, an early version of the VCR, because it could be used to make unauthorized copies of TV shows. The suit was particularly shortsighted, given that rental and sale of films on video would soon become extremely lucrative for the industry. But in any event, the Supreme Court rejected the suit, ruling that a technology cannot be banned just because it might be used for nefarious ends, if it is also "capable of commercially significant non-infringing uses."

Home recording of TV programs for purposes of time-shifting was such a "non-infringing use," said the Court. Even though it involves copying entire programs, time-shifting qualifies as "fair use" under copyright law. Indeed, the Court noted that among those who favored time-shifting was Fred Rogers of Mr. Rogers' Neighborhood, who testified at the Sony trial that "he had absolutely no objection to home taping for noncommercial use," and that "it is a real service to families to be able to record children's programs and to show them at appropriate times."8

Major corporations have continued to push for restrictions, however. In recent years, the company that owns the Priceline Web site has claimed that its method of selling airline tickets is protected by patent law - a close relative of copyright - and may not be copied. Netflix.com obtained a patent on the way that its Web site rents DVD movies. And IBM "patented a method for keeping track of people waiting in line for the bathroom."9

These zealous assertions of ownership are driven in part by the concept of intellectual property ("IP") to describe copyrights, trademarks, patents, and "trade secrets." Viewing creative works as property, however, leads to the presumption that they can and should be owned and controlled forever. But as we have seen, this is not what the Copyright Clause of the Constitution envisions, nor is it consistent with a free society.

As the scholar and activist Lawrence Lessig writes, products of imagination and intellect are "nonrivalrous" – that is, they are inexhaustible. A book can be read, read again, and given away for others to read. Its value is not used up. Unlike "rivalrous" resources, works of the imagination do not need a system of control to assure that they are not depleted; they only need a system that encourages their creation, and fairly rewards their creators.10

Another leading thinker, Siva Vaidhyanathan, puts "intellectual property talk" at the root of today's conflicts over anti-circumvention technology, extensions of the "limited time" of copyright, and other efforts by the industry to expand its control. Vaidhyanathan notes that the term "intellectual property" is "fairly young," having originated with the UN's World Intellectual Property Organization (WIPO) in 1967. Soon afterward, major American organizations that concern themselves with copyright, patent, and trademark law "changed their names to incorporate 'intellectual property.'" Thus, "over the past thirty years, the phrase 'intellectual property' has entered common usage with some dangerous consequences." For copyright

was not meant to be a "property right" as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access.11

This does not mean, of course, that authors should receive no compensation or that media companies should not profit from their investments. Few critics of the current situation want to eliminate copyright protection. But xeroxing a poem or dubbing a tape for a friend has not usually been considered a law-enforcement problem. Internet downloading and file-sharing are, conceptually at least, the contemporary equivalents. That is, any transmission of information online technically involves copying – even simply visiting a Web site, which requires reproduction of the site on your computer screen. Not every such reproduction should be considered a violation of copyright law.

Understandably, copyright owners are concerned when cultural sharing is multiplied from a few friends to millions around the globe. But the industry tends to lump together all copying under the nefarious heading of "piracy," when in fact there are substantial differences between large-scale, for-profit enterprises that sell unauthorized copies of music, software, or movies, and, for example, students' or scholars' sharing of favorite songs or news articles through a university network. In between are difficult questions about widespread, not-for-profit music and movie-sharing. Although copying on this level is generally assumed to be unlawful, it is not clear that the remedy is to make criminals of millions of Americans.

If modern technology has made copying vastly simpler, and achievable on a worldwide scale that was never possible before, it has also enabled media companies to exercise unprecedented control over the use of their products through systems of digital rights management, or "DRM." DRM controls that are built into cultural materials frequently undermine the free-expression safety valves that are so fundamental a part of the copyright system. Electronic locks and other DRM technologies now inhibit fair-use copying for purposes of study, criticism, or parody, the ability to share a book or CD with a friend, and even the availability of works that are already in the public domain.12

As a result of DRM, some CDs now come with locks to prevent them from being played or copied on computers.13 "Clickwrap" agreements – those online scrolls of legalese to which one must click "yes" in order to reach the desired content – have become increasingly oppressive, and inconsistent with the flexibility of copyright law. Some Web sites include lengthy agreements that flatly require viewers to relinquish their fair-use rights as a condition of accessing the site.14 As many observers have warned, we seem to be moving toward a "pay per view" society where the information, inspiration, and ideas contained in creative works of all kinds are becoming increasingly expensive and difficult to obtain – just at the time, ironically, that the Internet offers the promise of unprecedented global linkage and communication.

The tension continues to grow between strong copyright control and the values of free expression and access to information. Yet much of the debate is carried on among a relatively small priesthood of lawyers, advocates, and policymakers who communicate in a largely unknown language. This report is intended to bridge the gap by describing the challenges to art, scholarship, and free expression that are posed by copyright law in the digital age. It explains the major issues and court cases in understandable terms. Obviously, it cannot cover all the details of "intellectual property" law and policy. We hope, though, that it will provide a useful guide to the issues and a sense of why they matter for artists, scholars, and all who care about free expression and access to ideas.

NEXT: FOUR FREE-EXPRESSION SAFETY VALVES

ENDNOTES

3. U.S. Constitution, article I, §8, clause 8.

4. 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). Marcus Errico, "Okay, Six Choruses of 'Kumbaya' - That'll Be $1.50," Eonline, Aug. 24, 1996,
http://www.eonline.com/News/Items/0,1,109,00.html (accessed 9/12/03); "ASCAP Clarifies Position on Music in Girl Scout Camps," ASCAP press release,
www.ascap.com/press/1996/ascap-082696.html (accessed 10/25/02); James Surowiecki, "Righting Copywrongs," The New Yorker, Jan. 21, 2002, p. 27; Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/Aug. 2003,
www.legalaffairs.org/issues/July-August-2003/feature_zittrain_julaug03.html (accessed 7/16/03) (reporting that ASCAP "now charges the Scouts $1 a year, foregoing real profits while making it clear that the girls sing only by ASCAP's belatedly good graces").

5. Pamela Samuelson, "The Copyright Grab," 1995, www.negativland.com/white.html (accessed 9/12/03); see also Paul Goldstein, Copyright's Highway: The Law and Lore of Copyright From Gutenberg to the Celestial Jukebox (New York: Hill & Wang, 1994), pp. 39-45.

6. 8-8 Nimmer on Copyright A, Appendix 8, §A, Renewal Term Extensions Under the 1909 Copyright Act.

7. 17 U.S. Code §106 sets out the nature of the exclusive right: "(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."

8. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442, 432, 446 (1984).

9. James Surowiecki, "Patent Bending," The New Yorker, July 14-21, 2003, p. 36.

10. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), p. 95.

12. See Robert Kunstadt, "Fair Use Should Not Die," National Law Journal, Nov. 11, 2002, p. A16 (describing the industry practice of encrypting both new introductory material and public domain material).

13. Dave Wilson & Jon Healey, "CDs That Block Copying May Herald a Revolution," Los Angeles Times, Jan. 6, 2002, www.latimes.com/business/la-010601copy.story (accessed 1/6/02).

14. Brenda Sandburg, "Fair Use Fears Over Federal Circuit Ruling," The Recorder, Oct. 8, 2002, www.law.com/jsp/article.jsp?id=1032128694823 (accessed 10/8/02).