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 "THE PROGRESS
OF SCIENCE AND USEFUL ARTS":
WHY COPYRIGHT TODAY THREATENS INTELLECTUAL FREEDOM A Public Policy Report First printing © 2002 by Marjorie Heins. A revised and updated edition of the entire report will be published in the fall of 2003. This Executive Summary has been revised since the original report, and was posted on August 11, 2003. This report may be reproduced in its entirety as long as the Free Expression Policy Project is credited, a link to the Project's Web site is provided, and no charge is imposed for access. Please ask permission before reproducing the report in part or in altered form, or for a publication where a fee is charged for access. All reprints should have the following text at the top of the page: Reprinted from the Web site of the Free Expression Policy Project, a think tank on artistic and intellectual freedom, www.fepproject.org. Please let us know if you reprint! 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 original publication of the report. CONTENTS Introduction: Why Copyright Today Threatens Intellectual Freedom I. The "Difficult Balance" of Copyright and the Four Free-Expression Safety Valves
II. Freezing the Public Domain: The Sonny Bono Copyright Term Extension Act
III. The Ins and Outs of Circumvention: The Digital Millennium Copyright Act
IV. File Sharing, Cyber-Liberties, and the Online Commons
Executive
Summary Copyright – our system for protecting and encouraging creativity – has been described as "the engine of free expression." 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 courts and 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." A critical component of this "difficult balance" is the system of free-expression "safety valves" within copyright law. Four of these "safety valves" in particular – 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 this 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 fundamentally inconsistent with a free and democratic copyright system. And 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. The first 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. Meanwhile, 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. Finally, 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 new 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 may 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. Meanwhile, the entertainment industry went to court to shut down the Napster Web site because it assisted in the widespread copying of music online. New, less centralized systems like Grokster and KaZaA quickly replaced Napster, and the industry has not so far succeeded in persuading 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 2003, the music industry began to sue college students for sharing music online, and demanded that Internet service providers turn over the identities of thousands of their customers who are allegedly downloading copyright-protected music, movies, or other products. Public interest groups, scholars, librarians, artists, computer scientists, and others 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. Introduction: Why Copyright
Today Threatens Intellectual Freedom The realm of copyright is full of mystery. What is "fair use"? What does it mean for a creative work to enter the "public domain"? And why should we care? Copyright law is at the core of today's hot controversies in the arts,
science, and scholarship. Teenagers swapping music online; encryption
schemes that lock up e-books, songs, and movies; ever-longer extensions
of copyright control -- conflict over these issues has caused a crisis
in the worlds of creativity and culture. With computer technology, these conflicts have intensified. The Internet
allows ideas and information to be shared worldwide on a scale never possible
before. But technology also enables media companies to exercise unprecedented
control over the use of their products through systems of "digital
rights management" that undermine traditional "fair uses"
of copyrighted works. Laws passed by Congress to aid the companies that make up the "copyright
industry" have also intensified the debates. Writers, scholars, artists,
and free-speech activists, both online and off, have challenged these
laws. Some have campaigned for "Free Software" or even advocated
an end to copyright protection. Others, including publishers, movie producers,
and many authors, artists, and composers, have argued for stronger restrictions
on copying and sharing, and longer terms of copyright protection. In between
are increasing numbers of citizens who recognize that while copyright
serves an important function in advancing science, art, and culture, these
new laws have badly upset the "difficult balance" between rewarding
creativity through the copyright system and "society's competing
interest in the free flow of ideas, information, and commerce."1
This report describes the challenges to art, scholarship, and free expression
posed by current copyright law. For many artists, scholars, Web surfers,
and lovers of music file-sharing, this may be terra incognita.
For almost all of us, it is an area where a relatively small priesthood
of lawyers and policymakers communicates in a largely unknown language.
But the tension between strong copyright control and free expression
today cannot be ignored. This report is intended to help inform the debate
even though it cannot, obviously, cover all the ins and outs of "intellectual
property," which includes not only copyright, but trademark, patent,
and "trade secrets" law. We hope the report will provide a useful
guide to the issues while underscoring the vital link between free expression
and core elements of the copyright system, such as fair use and the public
domain. I. The "Difficult
Balance" of Copyright and the Four Free-Expression "Safety Valves" Copyright and "Intellectual Property" When we think of creativity and free expression, it's 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." 2
The theory is that creative people need the promise of financial reward
to motivate them to produce art, music, literature, scholarship, and scientific
invention. Copyright owners these days, of course, are not necessarily impecunious
writers and artists. Corporations own many copyrights, and trade groups
are often aggressive in asserting the "exclusive right" to control
and profit by copyrighted works. In the 1990s, for example, the American
Society of Composers, Authors, and Publishers (ASCAP) demanded fees from
summer camps for songs the kids sang around their campfires. Disney threatened
daycare centers that had likenesses of Mickey or Minnie painted on their
walls.3 From attempts to stop the new technology
of "piano rolls" in 1908 to efforts to ban the video cassette
recorder in the 1980s and the "anti-circumvention" law that
restricts access to copyrighted works today, media companies have pushed
for stronger controls. One reason for these aggressive assertions of copyright control is the
concept of intellectual property ("IP"). This is the name commonly
given to copyright and its near-relations, trademark and patent law. Viewing
creative expression as property leads to the presumption that it can and
should be owned and controlled forever. But this is not what the Copyright Clause of the Constitution envisions,
nor is it consistent with free expression. 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 aren't depleted; they only need a system that encourages
their creation, and fairly rewards their creators.4 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 profits and control. Vaidhyanathan
writes that 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."5 Viewing creative expression
as property distorts this original concept. This isn't to say that authors should receive no compensation or that
media companies should get no profit from their investments. Few critics
of the current situation want to eliminate copyright protection. But copyright
doesn't and shouldn't mean total control. Xeroxing a poem for a roommate
or dubbing a tape for a friend has never been deemed a law-enforcement
problem. Internet downloading, e-mailing, and file-sharing are the contemporary
equivalents. Understandably, copyright owners are concerned when this
cultural sharing is multiplied from a few friends to millions around the
globe. But it is not clear that the remedy is to make criminals of the
cyber-enthusiasts who e-mail favorite songs or articles to friends, or
use file-sharing technologies. In fact, the "exclusive right" that the Copyright Clause tells
Congress to give authors and inventors is not permanent or absolute.6
For one thing, the Clause 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. For another, even during the term of copyright
control, there are important limits to the "exclusive right."
These limits, or free-expression "safety valves," give the system
necessary flexibility and help preserve a free and vibrant culture. They
are essential to maintaining the "difficult balance" between
copyright and free expression.7 The "Idea/Expression
Dichotomy" The first free-expression safety valve is the idea/expression
dichotomy. It allows anyone to copy the facts and ideas found
in creative works as long as the author's specific language, structure,
or details of plot and character aren't used. As the Supreme Court explained
in one case, copyright "rewards originality, not effort." Thus,
collecting and publishing factual information (in that case, for a telephone
directory) doesn't possess even "the minimal creative spark required
by the Copyright Act and the Constitution."8
As for ideas, the law recognizes that authors and artists copy them all
the time. 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. Shakespeare,
in fact, took the plot of not only Romeo and Juliet but most of
his masterpieces from existing sources. (And Stephen Sondheim and Leonard
Bernstein took the plot of West Side Story from Shakespeare.) The
idea/expression dichotomy allows artists and writers to draw freely on
the themes, myths, and images that fill our culture. Fair Use Fair use is probably the best-known
of the free-expression safety valves. It allows anyone to copy, quote,
and publish parts of a copyrighted work for purposes of commentary, criticism,
news reports, scholarship, caricatures, or even "time-shifting"
of television shows through use of a video cassette recorder.9
Not only does fair use allow culture to thrive, it also prevents publishers
and authors from suppressing criticism and parody of their works. So, when the rap group Two Live Crew borrowed the melody and parodied
the words of Roy Orbison's pop song, "Oh! Pretty Woman," in
a vulgar style that the copyright holder did not appreciate, the Supreme
Court indicated that it was probably fair use. Even though intended for
commercial sale, Two Live Crew's raunchy version, with lines such as "big
hairy woman" and "two-timin' woman," served the important
cultural purpose of mocking the "white bread" original. And
to be effective, parodists must quote enough of the copyrighted work to
conjure it up in listeners' minds.10 The Nation magazine had a less fortunate experience in the 1980s
after it quoted about 300 words from ex-President Gerald Ford's about-to-be-published
memoir without permission. The Nation's quote was part of a 2,200-word
news scoop highlighting Ford's description of his pardon of Richard Nixon
(Ford's predecessor in the White House), for possible crimes during Nixon's
term of office. In reaction to the scoop, Time magazine canceled
its "first serial rights" to publish highlights from Ford's
book. The Supreme Court, identifying with the publisher's plight in losing
this income from first serial rights, rejected The Nation's claim
of fair use. But three justices dissented, arguing that the scoop served
the public interest; and accusing the Court majority of a "constricted
reading of the fair use doctrine" that ill-served the "progress
of arts and sciences and the robust public debate essential to an enlightened
citizenry."11 More recently, writer Alice Randall faced a fair-use battle when she
borrowed characters and plot from Margaret Mitchell's classic Gone
With the Wind to produce The Wind Done Gone, a fictionalized
critique of the earlier novel's racist stereotypes. The Wind Done Gone
mentions homosexuality and interracial sex, both of which the Mitchell
estate prohibits in its policy for licensing "derivative works."12
A trial judge was persuaded to ban the novel as an unauthorized sequel.
A federal appeals court reversed, finding The Wind Done Gone to
be a parody, and permissible fair use.13 But the case demonstrated how subjective and unpredictable fair use can
be. Rap musicians' "sampling" of copyrighted music, "appropriationist"
artists' borrowing of visual images, and other forms of creative copying
continue to raise tough questions under the fair use doctrine. The "First Sale"
Rule A third important safety valve is the so-called first
sale rule -- the concept that copyright holders only control
the first sale of their works, after which purchasers may give them away,
sell them, or otherwise pass them along to friends, colleagues, secondhand
stores, libraries, schools, Salvation Army outlets, flea markets, auctions,
or any other place where the public can enjoy them. Libraries can lend
books to countless borrowers (who in turn can lend them to their friends,
as long as someone returns them on time).14 The first sale rule aids immensely in the spread of knowledge, entertainment,
inspiration, and ideas. It is also a pragmatic recognition of the limits
of copyright enforcement. For few of us would want to live in a world
where corporations or government agents monitor and control what we do
with every book, computer program, or CD that we buy. The All-Important Public
Domain The fourth and perhaps most important free-expression safety valve is
the public domain. The Copyright Clause
requires that after a "limited time" of monopoly control, creative
works will enter the public domain, where they are free for anyone to
publish, sell, adapt, translate, record, or perform. And "limited
time," under the terms of the first copyright law, in 1790, meant
soon – 14 years, renewable for another 14. As the 19th century legal
scholar and Supreme Court Justice Joseph Story wrote, "limited time"
was supposed to be "short."15 The reason for a short copyright term lies in the importance of a growing,
vital public domain. Creative works grow from past achievements; they
do not, as law professor Jessica Litman quipped, just rise full-grown,
like "Aphrodite from the foam of the sea."16
From Shakespeare to James Joyce, Michelangelo to Andy Warhol, creators
and inventors have echoed, copied, mocked, and transformed previous works.
Rock music, folk, blues, and jazz all borrow themes, riffs, and melodies
from earlier creations.17 The "limited time"
rule recognizes the value of this cultural borrowing to the arts, culture,
learning, and intellectual freedom. The copyright industry, for the most part, doesn't see it that way. Media
companies say that works are neglected and decay when nobody with monopoly
control is motivated to preserve them. Paramount Pictures Vice President
Scott Martin recently gave an example: 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. As a result, Martin writes, "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
underlying rights to the story and music asserted their claims, the film
was spruced up, with marvelous results. "Only after the copyrights
in the underlying rights were enforced was anyone willing to spend the
money necessary to restore and preserve the film."18
One might put a different spin on this story, however. All those allegedly
"horrid" copies enabled millions of people to see the film.
Not to mention the fact that anyone who has been on an airplane or watched
movies on TV knows that media companies frequently allow their copyright-protected
works to be "sliced and diced" (and bowdlerized to eliminate
naughty words or scenes). The public domain thus cannot be blamed for
insults to the integrity of creative works. In addition, Martin's argument that works will only be preserved if their
owners have an incentive to keep them profitable applies to relatively
few creations. For most works, which no longer have commercial value,
entry into the public domain is crucial because only then can archivists
preserve them without going through the laborious, expensive, and often
futile process of trying to locate and secure permission from copyright
owners. The public domain has other virtues. It promotes scholarship because
historians can reproduce pictures, letters, sound recordings, and other
expression without pursuing the frequently futile quest for copyright
permission. Even when owners can be found, they may refuse permission,
or impose unpalatable conditions. Law professor Dennis Karjala, testifying
before Congress against the Sonny Bono law, noted that the estate of songwriter
Lorenz Hart reportedly refuses any biographer who mentions Hart's homosexuality
to reprint his lyrics. Likewise, the deceased poet Sylvia Plath's husband,
Ted Hughes, 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.19 For scholars, fair use is not an adequate substitute for the public domain.
It is often impossible to predict whether a particular borrowing will
be considered fair by a judge or jury, and, perhaps more important, these
issues are seldom decided in court -- most publishers simply will not
print copyright-protected documents without permission. This includes
unpublished letters, drawings, and photographs, which automatically have
copyright protection. The case against The Wind Done Gone would
never have arisen if the copyright in Gone With the Wind had expired
on the schedule in place when Margaret Mitchell wrote the book. Finally, the public domain enhances access. Works that are unavailable,
or available only in an expensive edition, can, once copyright expires,
be published and distributed in wide variety, more cheaply, and 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 is typical.20 Libraries can copy and disseminate
letters, photographs, and news articles once they are in the public domain.
Amateur or impecunious theatrical troupes can perform musicals, plays,
and poems without paying often prohibitive licensing fees. There is no question that the public domain is a critical part of the
"difficult balance" underlying the Copyright Clause. Yet in
the past century, Congress has stretched the "limited time"
of copyright to the point where it now, as Professor Peter Jaszi quipped,
resembles perpetual copyright "on the installment plan."21
From the original 14 years, renewable for another 14, in the 1790 Act,
Congress in 1831 extended the term to 28 years, renewable for another
14; and again in 1909, to 28 years, renewable for another 28.22
Between 1962 and 1974, Congress enacted nine short-term extensions, to
prevent older works from entering the public domain while it prepared
a massive new copyright law that finally passed in 1976.23
The 1976 law, following the international Berne Convention, adopted the
concept of a flexible – and lengthy – "limited time":
life of the author plus 50 years for individuals and their estates; 75
years from publication or 100 years from creation, whichever expired first,
for corporations holding copyrights on works created by their employees.24
Then came the Sonny Bono law of 1998, which added another 20 years across
the board. Under the Sonny Bono law, the "limited time" of copyright
is now the author's life plus 70 years for individuals, and 95 years for
most copyrights held by corporations.25 Like
the previous extensions, the law expands copyright not only for future,
but also for existing works, even though their authors obviously don't
need any additional incentive to create them. II. Freezing the Public
Domain: The Sonny Bono Copyright Term Extension Act The Politics of Copyright
Extension The Sonny Bono law was the result of strenuous lobbying by the copyright
industry. Often called the "Mickey Mouse Law" because of Disney's
central role in urging its passage, it prevented the original Mickey,
who made his screen debut in 1928 in the film Steamboat Willie,
from entering the public domain in 2003. (Pluto, Goofy, and Donald Duck
were not far behind.) Disney and other film companies lobbied aggressively
for term extension, smoothing the way, as one journalist noted, with "well-targeted
campaign contributions."26 During the three years it took to pass the Sonny Bono law, media companies
and their PACs gave more than $6.5 million in campaign contributions to
members of Congress. Representative Howard Coble, a co-sponsor of the
law, received $63,000 in individual and PAC contributions. Senate co-sponsor
Orrin Hatch received $50,000 from large donors, including the major movie
studios, the Motion Picture Association of America (MPAA), and ASCAP.27
Senator Patrick Leahy of Vermont, who publicly forgoes PAC contributions,
received nearly $20,000 from individual Disney employees. (He was the
ranking minority member of the Senate Judiciary Committee that passed
on the bill.) Time Warner employees gave Leahy $36,000. Disney chairman
Michael Eisner flew to Washington to meet with Senate Majority Leader
Trent Lott, who then signed on as a co-sponsor. As journalist Daren Fonda
notes: "That day, Lott's campaign committee received a check from
Disney for $1,000 and 11 days later, Disney donated $20,000 in unrestricted
'soft money' to the National Republican Senatorial Committee."28
The effect of the law was to prevent more than 400,000 works from entering
the public domain.29 Most of them were obscure
creations without commercial value, though often with considerable historical
interest. But many famous works also had their copyrights extended --
F. Scott Fitzgerald's The Great Gatsby, Ernest Hemingway's The
Sun Also Rises, Thomas Mann's The Magic Mountain, the iconic
American film The Jazz Singer, the book and score to the musical
Show Boat, songs by Cole Porter, and the children's classic Winnie
the Pooh.30 Mary Bono, who had succeeded to her husband's seat in Congress, stated:
"Sonny wanted the term of copyright protection to last forever,"
but "I am informed by staff that such a change would violate the
Constitution." She suggested that Congress consider the proposal
of the MPAA's Jack Valenti, for "forever less one day."31
Defending the Public
Domain: Eldred v. Ashcroft Among those perturbed by the Sonny Bono law was Eric Eldred, founder
of a nonprofit online enterprise called Eldritch Press. Eldred started
the press in 1995, "inspired to help his triplet daughters wade through
the antique prose of [Nathaniel Hawthorne's] The Scarlet Letter,
which they were assigned to read in middle school."32
He began to look for online resources to assist them, including easily
accessible, comprehensible, and reader-friendly copies of the text. As
his lawyer Lawrence Lessig tells the story, what Eldred found online "was
essentially unusable."33 The Web versions
had typos, relied on outdated texts, or were crudely scanned. Beginning with Hawthorne, Eldred began to provide easily readable texts
of other public-domain works, by such luminaries as Joseph Conrad, Anton
Chekhov, and Henry James. His daily "hit count" grew to 20,000.
In 1997, the National Endowment for the Humanities recognized Eldritch
Press's Hawthorne site as "one of the 20 best humanities sites on
the Web."34 Eldred was set to add Sherwood Anderson's story collection, Horses,
and a book of Robert Frost poems, New Hampshire, among other works
whose copyrights were about to expire, when the Sonny Bono Act delayed
their entry into the public domain by 20 years. He began to complain publicly,
and one news story caught Lessig's attention. With Harvard Law School's
Berkman Center for Internet & Society, Lessig framed a legal challenge
to the Sonny Bono law. They had three legal arguments. First, by freezing the public domain,
the law violates the First Amendment's guarantee of free speech and press.
Next, by extending copyright for already-created works, the law violates
the Copyright Clause requirement of limited times. Finally, the law does
not "promote the progress of science and useful arts," because
extending existing copyrights does nothing to motivate authors who produced
their works long ago (and who in many cases are now dead). Other plaintiffs in the Eldred case included a publisher of books
on genealogy and local history, a church choir director, a classical sheet
music company, the American Film Heritage Association, and Dover Publications,
famous for quality reprints of public domain works. Before copyright extension,
Dover had planned to reprint Kahlil Gibran's The Prophet (originally
published in 1923). The choir director, who limits her selections to public
domain works because of the high cost of copyrighted sheet music, had
planned to perform work by Ralph Vaughn Williams and Edward Elgar. The
classical sheet music company had planned to publish compositions by Béla
Bartok, Maurice Ravel, and Richard Strauss, which were about to enter
the public domain, and distribute them to community and school orchestras.35
This was the first time anyone had brought a legal challenge to copyright
extension, and the lower courts made quick work of Lessig's claims. A
federal judge dismissed the suit, and in February 2001, the U.S. Court
of Appeals, by a 2-1 vote, affirmed. The judges in the majority ruled
that neither the opening words of the Copyright Clause nor its reference
to limited times prevents Congress from extending copyright as often as
it likes. As for the First Amendment, the court of appeals said that nobody other
than the copyright holder has a "First Amendment interest in a copyrighted
work."36 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. The appellate judges also asserted that Congress had good reasons for
extending the copyright term. Adopting the industry's argument, they said
that extension would encourage owners to preserve existing works, especially
movies. Moreover, the Sonny Bono law matched U.S. copyright terms to those
in Europe -- "harmonization" that had "obvious practical
benefits."37 (This was only partially
right; see the discussion below.) One judge on the appeals court dissented. He pointed out that repeatedly
extending copyright isn't fundamentally different from creating a perpetual,
unlimited -- and therefore clearly unconstitutional -- term. By stretching
the "limited time" from 75 to 95 years, then from 95 to, perhaps,
140 or 200, Congress can accomplish indirectly exactly what everybody
admits it cannot do directly.38 Eldred in the Supreme
Court By this time, news of both the Sonny Bono law and the Eldred case
had spread. Librarians, scholars, activists, and many others grew concerned
about copyright's continuing impoverishment of the public domain. When
Lessig and his colleagues asked the Supreme Court to review the case,
a diverse group of law professors, library associations, archivists, writers,
computer professionals, arts and humanities alliances, and media centers
filed briefs in support. The Supreme Court accepted the invitation, and in May 2002, Lessig and
his co-counsel filed their brief "on the merits," explaining
to the Court why the Sonny Bono law should be struck down. Fourteen additional
briefs supporting Eldred, with a total of 141 signers, were also filed.
These friend-of-the-court, or amicus curiae, briefs, represented
groups ranging from the National Writers Union and the College Art Association
to the Association of American Physicians & Surgeons and Computer
Professionals for Social Responsibility. They provided many illustrations
of the importance of the public domain.39 The College Art Association (in a brief joined by the National Humanities
Alliance and other groups whose members study and preserve visual art)
explained that scholars assembling texts and databases often can't locate
the owners of copyrights in educationally valuable letters, songs, photographs,
and other documents. Indeed, most authors have neither the time nor the
financial resources to do this gritty work of tracking down copyright
permissions -- though publishers generally expect them to. Without permissions,
most publishers won't include the materials. And even when copyright owners
are located, some refuse permission or charge prohibitive licensing fees.
Film scholars suffer particular disadvantages, because most journals won't
publish even a single movie frame without permission.40 As a result, there are "gaping holes" in such documentary compilations
as The Video Encyclopedia of the Twentieth Century, a resource
popular with researchers and teachers, and "Who Built America?,"
an award-winning CD-ROM series for high school and college students containing
primary sources from the 1930s. The compilers of "Who Built America?"
had great difficulty tracking down copyright owners, and those they found
sometimes wanted large fees even where the works in question had no commercial
value. Thus, they were forced to omit the Depression Era demagogue Huey
Long's campaign song, "Every Man a King," as well as many clips
from popular films of the time. They substituted government documents
or other works in the public domain, but the result was an unbalanced
picture of the era.41 The brief described an art historian who was refused permission to use
a photo of Picasso and his daughter because the copyright owner disagreed
with the historian's analysis of Picasso's work. A publisher that planned
a new critical edition of Cane, by the Harlem Renaissance author
Jean Toomer, in part to counterbalance the bias against Toomer reflected
in the only available edition, could not go ahead because of the copyright
term extension on Cane. "In the past," the brief said,
"researchers could anticipate and plan on new material becoming available
for unrestricted use on a constant and continuing basis." But the
law's 20-year "moratorium on the public domain" upsets those
expectations and penalizes scholars, museums, teachers, and historians.
All this in the interest of further enriching a relatively few copyright
owners "who already have received significant value from their ownership
under the preexisting term."42 Another amicus brief came from online archiving projects. They
explained how Internet public-domain publishing has revived countless
forgotten or hard-to-find works. Archiving projects now "digitize
and distribute millions of out-of-copyright books, movies, and music ...
materials that commercial publishers, distributors, and rights-holders
have effectively abandoned." While media companies that own the copyrights
"often let these films decay and books disappear, this material is
invaluable to scholars researching our history, artists developing new
art forms, and anyone seeking to explore our culture." To reclaim these works, they must be in the public domain. Finding and
paying copyright owners is untenable, given the millions of documents
involved. And in any case, the vast majority of works affected by the
Sonny Bono law -- from the 1920s and 1930s -- "are not available
from copyright owners at any price" because the owners cannot be
found.43 The brief gave a striking example. The Steven Spielberg Digital Yiddish
Library, with about 12,000 digitized works, "has helped turn a dying
literature into ‘the most in-print literature on the planet,'"
and "brings both a literature and an enriched understanding of the
Yiddish culture to people across the globe." 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 Yiddish treasures in the
Spielberg archive,
The archives' brief also mentioned movies – "the rare medium
of full immersion," with unmatched power "to transport us to
distant times and places." Film "literally allows us to bear
witness," whether to civil rights era violence; Martin Luther King,
Jr.'s march on Selma, Alabama, or countless other historical events. But
as the public domain recedes, teachers, students, scholars, and the rest
of the public are unable to see these images.45 Other support for Eldred came from First Amendment lawyers, copyright
lawyers, writers, libraries, and economists. The writers, among them William
Gass, Peter Matthiesen, Eva Hoffman, and Ursula Leguin (all, of course,
copyright owners themselves), argued that a growing, healthy public domain
is the necessary source for new creation. They pointed out that Disney,
which worked so hard to freeze the public domain by pushing for the Sonny
Bono law, nevertheless took advantage of it many times in creating animated
versions of Snow White, Cinderella, The Hunchback of Notre Dame,
and other classics.46 The economists' brief argued that copyright extension produced no economic
benefit – virtually no additional incentive to create new works,
and significantly higher costs for "derivative works" such as
adaptations and performances. As with any monopoly, moreover, the elimination
of competition increased costs to consumers.47 The brief from librarians -- among them the American Association of Law
Libraries, the Association for Recorded Sound Collections, and the Medical
Library Association -- had special pertinence for art and culture. These
are the institutions that preserve the literature, art, science, journalism,
and other products of human imagination, and make them available to all,
regardless of wealth. The brief described Documenting the American
South, an electronic collection sponsored by the University of North
Carolina, which provides no-fee access to more than 1,000 publications
and manuscripts. This archive includes Confederate imprints, Southern
literature, materials on the African American church, and about 160,000
pages of slave narratives, of which, in many cases, only a few hard copies
exist. Before digitization, hardly anyone got to see them. Now they are
accessed by 15-20 people per day -- well over 5,000 per year. The project
would be impossible without the public domain.48
The librarians also addressed a limited exemption in the Sonny Bono law
that allows them 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, said the librarians, that it "may ultimately do little"
to "mitigate the substantial burdens" of the law.49
The Department of Justice and the copyright industry countered the outpouring
of briefs attacking the law with powerful arguments of their own. The
government's brief emphasized how novel Eldred's claims were: Congress
has been extending copyrights on existing works for 200 years, and no
one before had brought a legal challenge arguing that "limited times"
could not be extended or that the opening words of the Copyright Clause
("to promote the progress of science and useful arts") meant
that laws not shown to encourage new creations are beyond Congress's power.
In any event, the longer term would spur media companies to invest in
restoring and distributing old works, and although not creative, these
activities would also promote "science and useful arts."50
The government stressed that Congress, not the courts, is the appropriate
branch of government to decide what policy best serves art and culture.
Indeed, it insisted, for the courts to wade into this area would require
second-guessing a multitude of congressional judgments – among them,
that longer copyright protection, not the public domain, advances film
preservation, and that the media industry, if it receives additional profits,
will invest in more new creations. The government's lawyers warned the
Supreme Court that if it starts seriously scrutinizing Congress's judgments,
it will end up in the impossible position of testing "each and every
feature" of copyright law against First Amendment principles.51
As if to outdo Eldred's supporters, those on the government's side filed
18 amicus briefs. Several came from the copyright industry –
the MPAA, AOL Time Warner, the Recording Industry Association of America
(RIAA). Others came from celebrated copyright holders or their estates
– George Gershwin, George Balanchine, and David Mamet (among others
who signed on to a brief from the Association of American Publishers);
the Songwriters Guild of America (represented by First Amendment attorney
Floyd Abrams); AmSong, Inc. (an "organization dedicated to the protection
of musical copyrights," whose members include Bob Dylan, Carlos Santana,
Don Henley, and Thelonious Monk, Jr.); and even Madeleine Bemelmans (namesake
of the Madeline books), E.B. White (author of the timeless Stuart
Little and Charlotte's Web), and Dr. Seuss (author of The
Cat in the Hat and more than 40 other books of classic doggerel).52
The common themes of these briefs supporting copyright extension were
the financial and proprietary interests of creative artists and their
heirs. They also argued that copyright holders make good use of already-created
works through adaptations and movie deals. But they failed to acknowledge
the even greater use that would occur if the works were allowed to enter
the public domain. The Dr. Seuss/E.B. White/Bemelmans brief even argued
that enriching the public domain was not a purpose of the Copyright Clause.
"While in no way seeking to disparage" Eldred and the other
plaintiffs, they said, "others having access to works through the
public domain make use of well-known characters to glorify drugs or to
create pornography. These uses, especially for children's works, demean
and dilute the original works and discourage their continued popularity."53 The assumption here, apparently, was that cultural icons like Dr. Seuss
and Charlotte's Web should be immune from irreverent or scandalous
uses. But this misapprehends the importance of both humor and controversy
in a system of free expression. The unwillingness of these writers' estates
to accept that the very literary success of their ancestors put their
creations into the stream of culture, available for comment and mockery,
was reminiscent of the famous "Disneyland Memorial Orgy," a
cartoon created by Wally Wood, one of the original illustrators for Mad
magazine, and published as a poster by The Realist magazine in
the 1960s. The "Orgy" depicts Mickey, Minnie, and many other
Disney characters in sexually suggestive situations. Although Disney has
over the years attempted to stop commercial distribution of the "Orgy,"
it remains an important wry comment on the "Disneyfication"
of American culture.54 Another common argument was that copyright law, by recognizing fair use
and the idea/expression dichotomy, already accommodates First Amendment
rights. The government's brief elaborated on this theme. Just as in the
Nation case, it said, where the Supreme Court rejected an argument
that the public interest in Gerald Ford's memoirs required a new exception
to copyright, free speech safeguards such as fair use already "protect
First Amendment interests and render further judicial intervention unnecessary."55
Finally, the government and its supporters emphasized
the need for harmonization with Europe. They said Congress was right to
decide that in the interests of international trade, and of protecting
America's number two export (popular culture), U.S. copyright holders
should not have any less protection abroad than their foreign competitors.
Under the Berne Convention, countries need only give the same copyright
protection to a foreign work that it has in its country of origin. Hence,
without the Sonny Bono law, U.S. copyrights would be protected in Europe
for the life of the author plus 50 years (as provided by the 1976 law)
rather than life plus 70 -- the term in European Union countries.56 But the Sonny Bono law did not in fact make U.S. copyright terms consistent
with Europe's. European Union countries give 70 years for works owned
by corporations rather than individuals. The Sonny Bono Act gives corporations
95 years from the date of publication or 120 years from the date of creation,
whichever expires first -- that is, at least 25 years longer than many
countries in Europe.57 On the other hand, most European countries don't have an equivalent of
the U.S. "work for hire" doctrine, which gives corporations
the copyright in works created by their employees. In Europe, the life
of the author -- or multiple authors in the case of movies -- is often
used to calculate copyright terms for works by corporate employees. Although
this weakens the argument of those who say the Sonny Bono law increased
disharmony with Europe, it also points up the impossibility of ever really
reconciling different countries' copyright systems. As the U.S. Register
of Copyrights frankly told Congress, the 20-year extension would not harmonize
the U.S. with Europe.58 Although the extension
did harmonize individual terms (for at least some European countries),
it exacerbated the inconsistency for corporate copyrights. On October 9, 2002, Lessig argued Eldred v. Ashcroft before a
packed audience in the Supreme Court. Several of the justices expressed
outrage at the Sonny Bono law. Sandra Day O'Connor 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 Lessig; and if so, what
standard should apply? Justice Stephen Breyer was skeptical of the government's claim 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 the government's lawyer, 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.59 Several other justices seemed uncomfortable with the law's extension of existing copyrights. But O'Connor asked Lessig whether invalidating it wouldn't also doom the 1976 Copyright Act, since it also also added to the term of existing copyrights. Breyer opined that invalidating the '76 law would produce "chaos" that would be "horrendous." Lessig responded that the Court could make a distinction because of the settled expectations created by the '76 Act.60 After the argument, Lessig reported that research on the books and movies whose copyrights were extended in 1976 indicates that the vast majority are no longer commercially available; hence, "a surprisingly small amount of work would be affected" if the '76 Act were invalidated.61 Nevertheless, the question is perhaps the hardest one the Court confronts as it wrestles with a law that most of the justices seem to agree is a perversion of the copyright system. UPDATE: JANUARY 16, 2003 On January 15, 2003, the Supreme Court decided Eldred v. Ashcroft. By a vote of 7-2, it upheld the Sonny Bono law. Justice Ruth Bader Ginsburg's dry, legalistic opinion for the Court
made no mention of the ways that a stagnant public domain impoverishes
art and culture, as the College Art Association and many others had documented
in their briefs. Instead, she condemned Justice Breyer, one of the two
dissenters, for making "abundant policy arguments" instead of
sticking to legal precedent. Breyer's impassioned dissent relied extensively
on the briefs, noting for example that about 350,000 films, songs, and
other works with little or no commercial value are still frozen in "a
kind of intellectual purgatory" because of the Sonny Bono law.61A Despite the disappointingly wooden Supreme Court decision in Eldred,
the litigation had the salutary effect of taking the issue of our disappearing
public domain out of the legislative shadows and into the bright light
of policy debate. As Amy Harmon noted in The New York Times, public
awareness now could persuade Congress to revisit the issue and, for example,
allow copyrights to lapse "unless owners make an effort to renew
them."61D Scholars, archivists, and others
could then at least use materials whose owners don't bother to renew.
And reliance on other free-expression safety valves such as fair use is
likely to continue. The Difficult Balance
Revisited: What is a "Limited Term"? Term extension is an issue that splits the worlds of art and culture.
Many authors favor expansive copyright protection. Bob Dylan, Carlos Santana,
and many other artists urged Congress to pass the Sonny Bono law. Since
the law already gave them copyright control for life plus 50 years, they
were presumably concerned about their grandchildren and great-grandchildren.
Understandably (but incorrectly), they thought of works they had sent
into the world as their permanent property. The Eldred case is by no means an easy one. For one thing (as
the government insisted), how is a court to decide what is an appropriate,
or constitutionally permissible "limited time"? If perpetual
copyright "on the installment plan" is unconstitutional, what
is a reasonable limit? Perhaps, as defenders of lengthy terms argue,
the fair use doctrine, the idea/expression dichotomy, and other free speech-friendly
facets of copyright law are enough to maintain the "difficult balance,"
no matter how long it takes for works to enter the public domain. On the
other hand, if "limited time"can really mean hundreds of years,
or can be extended by Congress ad infinitum, then there isn't much left
to the balance set by the Copyright Clause. As Lessig points out, the stakes are higher than ever. The Internet for
the first time enables people the world over to read, view, and learn
from works that in pre-digital times were buried in library stacks, private
collections, attics, or basements. Only about 2% of copyright-protected
creations produce continuing revenue, but access to all of them is limited
by the calcification of the public domain.62 As
The New York Times editorialized a few days after the Supreme Court
argument, the purpose of the Sonny Bono law "was not protecting artists,
but enriching media companies that hold property rights in their creations,
virtually in perpetuity." The authors of the Constitution "did
not envision copyright being put to this use, and the Court should not
allow it."63 III. The Ins and Outs of
Circumvention: The Digital Millennium Copyright Act Locking Up Expression: Origins
of the DMCA After the Supreme Court agreed to review the Eldred case, one
reporter made the connection between the Sonny Bono law and other efforts
to strengthen copyright by observing that term extension is part of "a
larger fight that pits copyright holders against the spread of technology
that allows almost anyone to easily copy and distribute almost any work
online."64 The main battleground of that
"larger fight" is the apocalyptically named Digital Millennium
Copyright Act, or DMCA. The DMCA had its origins in a 1994 "Green Paper" that the Clinton-Gore
Administration produced in response to industry concerns about the potential
for widespread copying and sharing of books, articles, movies, music,
and virtually any other expression online. The problem of electronic piracy
was – and remains – a serious one. 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 viewed as a reproduction requiring copyright
permission.65 This approach essentially eliminates
the first sale rule online, for it prevents the owner of a work from passing
it along to another without a new permission. It locks up everything that
in the offline world could be freely browsed in a bookstore or library.
It also drastically shrinks fair use by preventing potential critics and
commentators from accessing works without permission. As Professor Pamela Samuelson put it in an article headlined "ALERT
- Stop the Clinton Copyright Grab": "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."66 Starting from this radical premise, Congress now crafted a law to help
the industry prevent unauthorized access to copyrighted material. But
the resulting DMCA not only makes it a crime to circumvent the
industry's encryption devices in order to access works. It also criminalizes
the "manufacture" or distribution to the public of circumvention
tools.67 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. The DMCA's supporters say it accommodates fair use and other traditional
checks on copyright monopolies. For example, it only prohibits circumvention
for purposes of access, not for purposes of copying. But the tools provisions
ban technologies designed for access or copying. Thus, as Jessica
Litman says, consumers wanting to make legitimate use of copyrighted works
must come up with ways to circumvent encryption "on their own."68
And they cannot share what they discover unless they are willing to risk
being sued or prosecuted for "trafficking" in circumvention
tools. The law has a few exemptions. One permits "nonprofit libraries,
archives, and educational institutions" to use circumvention tools
to access a work -- but "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." Another permits "reverse
engineering" in very limited circumstances once a person has already
"lawfully obtained the right to use a copy of a computer program."
Another allows research designed to "analyze flaws and vulnerabilities
of encryption technologies."69 But in each
case, making use of the exemption is difficult because manufacture and
distribution of the necessary tools is illegal. The DMCA also makes a nod in the direction of fair use. It directs the
Librarian of Congress (after investigation by the Copyright Office) to
decide whether anybody seeking access to any "particular class of
works" for legitimate aims such as fair use is likely to be "adversely
affected" by the law.70 But after receiving
hundreds of comments from library, educational, and civil liberties groups
on the importance of circumvention to the exercise of fair use, the Copyright
Office recommended only two narrow fair-use exemptions: accessing lists
of Web sites blocked by Internet filters, and locating works made inaccessible
because of "malfunction, damage, or obsoleteness" of encryption
devices.71 These exemptions, too, are difficult
to use -- researchers on Internet filters still have the problem of obtaining
access to encrypted codes and lists, since the DMCA bans the development
or distribution of circumvention tools that might help them. Like copyright term extension, the DMCA has been defended as necessary
to harmonize U.S. with international law. Two treaties crafted by the
World Intellectual Property Organization (WIPO) oblige member countries
to "provide adequate legal protection and effective legal remedies"
against circumvention of electronic locks on copyrighted works.72
According to the U.S. Copyright Office, the DMCA simply "implements
the WIPO treaties."73 But the head of
the Patent and Trademark Office, Bruce Lehman, acknowledged in testimony
to Congress that the treaty did not require the DMCA's "device-oriented"
(as opposed to "conduct-oriented") approach.74
Jessica Litman points out that "effective legal remedies" for
circumvention existed before the DMCA – including the usual lawsuits
and prosecutions for copyright infringement.75
The DMCA was not the copyright industry's first effort to suppress technology.
In the early 1980s, Universal City Studios and Walt Disney Productions
sued the Sony Corporation to stop production of the video cassette recorder
(its version was called the Betamax), on the theory that it enabled viewers
to make unauthorized copies of TV shows. The Supreme Court rejected their
claims, ruling that a technology cannot be banned just because it might
be used for nefarious ends, as long as 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." Even though it involved copying entire
programs, the Court said such time-shifting qualified as fair use. Indeed,
the Court noted that among those protected by copyright but in favor of
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."76 Fourteen years later, the precedent of the Sony case would be
one of the main arguments against the DMCA. For if, as the Supreme Court
said in Sony, you cannot outlaw a technology simply because it
might be used for copyright infringement, then the DMCA's ban on
creating or distributing decryption tools (assuming they also have legitimate
uses) should be just as illegitimate as the industry's attempt to stop
the VCR 20 years before. Uses of the DMCA Music: Felten v. RIAA One of the first applications of the DMCA was against scholars. In early
2001, a group of companies calling themselves the Secure Digital Music
Initiative issued a "Public Challenge" to computer experts to
try to circumvent the watermarks they had developed to protect copyrighted
works. Edward Felten and a team of fellow scientists from Princeton, Rice,
and Xerox cracked the codes, and were preparing to discuss the results
of their research at a U.S. Navy-sponsored conference when they received
a letter from the RIAA, the music industry trade group. The letter, also
sent to Princeton and Navy officials, threatened legal action under the
DMCA if the researchers published or publicized their work. The scientists were sufficiently cowed, and withdrew their paper from
the conference. But, represented by the Electronic Frontier Foundation
(EFF), they also sued to challenge the threatened use of the DMCA to suppress
their research results. The RIAA now backed off, saying that its letter
was "a mistake" (although reserving the right to threaten other
scholars in the future). The Department of Justice moved to dismiss the
case, arguing that it was "not ripe" because the RIAA was no
longer threatening to sue.77 The government also argued that the DMCA did not cover Felten's research.
This was because his decryption programs were not specifically designed
or marketed with the aim of accessing copyrighted material. Instead, they
were developed "to further scientific research into access controls."
Like the RIAA, though, the government hedged its bets, adding:
Individual scientists along with Usenix, an association of more than
10,000 technology researchers, contested the government's interpretation.
They focused on the DMCA's chill on academic research, especially given
the possibility of further industry threats. They also pointed out that,
contrary to the government's claim, Felten plainly had an intent to access
copyrighted materials -- the object of the SDMI's "Challenge,"
after all, was to circumvent the watermarks. What Felten did not have
was an intent to infringe. In the end, though, the case was dismissed.
(Felten had by then presented his findings at a Usenix symposium.79) E-Books: U.S. v. ElcomSoft Russian researchers were not so fortunate. In July 2001, federal agents
arrested Dmitri Sklyarov, a young Russian programmer, at a conference
in Nevada after he presented parts of a dissertation titled "eBooks
Security - Theory and Practice." The paper described the Advanced
eBook Processor, a program that disabled the Adobe company's eBook Reader,
encryption software for electronic books. Its major purpose was to allow
lawful owners of e-books to translate them into Portable Document Format
(PDF), then move them to other machines for more convenient 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.80 The arrest of a young scholar for discussing technical research at a
conference 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. In the agreement,
Sklyarov acknowledged that the "only purpose" of the Advanced
eBook Processor was to "create an unprotected copy" of an encrypted
document.81 (Like Felten, though, Sklyarov said
he had no intent to infringe copyrights, or assist in infringement.) A few months later, ElcomSoft moved to dismiss the criminal charges,
arguing, among other things, that the DMCA's ban on anti-circumvention
technology is unconstitutional. The American Association of Law Libraries,
the Music Library Association, EFF, and other groups supported the company
with a friend-of-the-court brief. They argued that Adobe's eBook Reader,
like other "digital rights management" (or DRM) technologies,
was "designed to give publishers nearly perfect control" over
what lawful owners of e-books can do with them – including lending,
printing, partial copying, and other activities generally protected by
the concepts of first sale and fair use. By backing up DRM with legal
sanctions, the DMCA deprived lawful e-book buyers of their first sale
and fair-use rights.82 The judge in the case was not impressed, and in May 2002, denied ElcomSoft's
motion to dismiss. While acknowledging that DRM tools like Adobe's eBook
Reader do restrict first sale and fair use, he said Congress nevertheless
had the power to "sacrifice" these interests and give DRM the
force of law. He added that the DMCA doesn't eliminate fair use –
it just makes its exercise more difficult. The fair user may have to retype
portions of text, or hand-copy them rather than using the computer's convenient
cut-and-paste functions; but the law doesn't guarantee "the right
to the most technologically convenient way to engage in fair use."83 In early December 2002, the criminal trial against ElcomSoft began in
federal court in California. The distance between the two sides could
be gauged by their lawyers' opening statements. The prosecutor labeled
ElcomSoft's Advanced eBook Processor a "burglar's tool." The
company's lawyer said it was "a legitimate program never used to
infringe copyrights."84 The jury, however,
perhaps feeling that the government had overreached, acquitted ElcomSoft,
finding a lack of criminal intent. DVDs:
Universal City Studios v. Corley The DMCA case that has generated the most heat involved neither e-books
nor music. Universal City Studios v. Corley was the movie industry's
attempt to suppress a decryption program called DeCSS, which unlocks the
industry's "Content Scramble System" (CSS) for movies on DVD.
Once unlocked, the films can 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.85
Paramount, MGM, Columbia Pictures, Time Warner, Disney, and 20th Century
Fox joined Universal City Studios as plaintiffs in the case. The companies did not sue Johansen, or the hundreds of Web publishers
and activists who were discussing, describing, and distributing DeCSS
online. (They did send "cease and desist" letters to many sites,
some of which removed DeCSS.) The lawsuit instead focused on Eric Corley,
editor of 2600: The Hacker Quarterly and proprietor of the Web
site 2600.com. 2600 published DeCSS as part of a news article reporting
on circumvention technology and the larger political debate over encryption.86
A federal judge, offended by the hacker mentality and sympathetic to
the industry's huge investment in DVDs, issued a preliminary injunction,
a court order forbidding Corley and two of his colleagues from publishing
DeCSS or posting it on the Internet. Later, the judge barred Corley from
hyperlinking to any sites where DeCSS could be found.87 Represented by the Electronic Frontier Foundation, Corley appealed. His
lawyers argued that the injunction violated his First Amendment right
to publish truthful information, that neither he nor anyone else the movie
studios could identify had actually used DeCSS to violate copyright protection,
and that interpreting the DMCA to bar any "trafficking" in codes
like DeCSS essentially eliminated fair use in the digital world, by censoring
technology that would enable fair users to gain access to creative works.
The DMCA's structure was "upside-down," they said, threatening
communication among journalists and scholars by punishing the distribution
of information that might be used for copyright infringement more stringently
than copyright infringement itself.88 The Corley case, involving DVDs, epitomized the shrinking of fair
use more dramatically than ElcomSoft, which involved e-books. For, as
the judge in ElcomSoft said, those wanting to copy portions of a work
for criticism, scholarship, or other fair uses can still do so by laboriously
re-typing or copying by hand. With visual images, retyping just doesn't
work. To obtain a film clip or even a single frame for purposes of fair
use, one must copy it. And to copy it, one must access it using circumvention
tools. Corley's brief on appeal gave some examples. Princeton Professor Peter
Ramadge, a film scholar, wanted to use DeCSS to facilitate his searching
through movies for particular images – Humphrey Bogart in the familiar
act of smoking a cigarette, for example. "Professor Ramadge's research
relies on access to digital video content like that found on DVDs,"
the brief explained. "Ordinary VCR movies are insufficient. His use
of DVD movies would undoubtedly qualify as fair use for research and scholarship."
But without DeCSS, Ramadge had to rely for his research on an "industrial
partner that could execute the needed license agreements," resulting
in access to only two full-length movies.89 Briefs filed by cryptographers, law professors, the American Library
Association (ALA), and the ACLU gave other examples. Columbia law professor
Jane Ginsburg had "linked to sites where DeCSS was posted in the
course of teaching her copyright course." Protesters had worn T-shirts
"bearing portions of the DeCSS source code."90
A brief by professors Lessig and Yochai Benkler asked the court to "imagine
a professor of critical film theory putting together a series of illustrations
of sexist or racist stereotyping in Hollywood movies." Or a professor
of media law, "who offers a short snippet of The Insider to
motivate discussion of the costs and benefits of commercial media. These
and millions of other unsung acts of individual creativity that rely on
common cultural materials are central to expressive freedom." Yet
the DMCA makes such fair uses virtually impossible.91 These examples suggested the practical problems with a law that empowers
courts to ban the exchange of computer codes. The prospect of federal
agents confiscating T-shirts or wading into Professor Ginsburg's class
to prevent hyperlinks to Web sites containing DeCSS is sobering, to say
the least. The U.S. government intervened in the Corley case to defend the
DMCA. Its primary argument was that decryption codes are simply not constitutionally
protected expression. They are merely a functional means of accomplishing
circumvention. But even if the First Amendment applies, the government
said, broad anti-trafficking rules are constitutional because there is
no other way to prevent piracy. Noting "the epidemic-like propagation
of circumvention technology," the government said that the Internet
"poses a unique threat to the rights of copyright owners,"
while "digital technology enables pirates to reproduce and distribute
perfect copies of works – at virtually no cost at all to the pirate."92
The court of appeals agreed with most, if not all, of the government's
argument. It ruled that computer programs like DeCSS are speech
within the meaning of the First Amendment; but even so, the DMCA's anti-tool
provisions are constitutional. They serve the important purpose of protecting
encryption devices, which the judges analogized to burglar alarms, or
locks that property owners install in their homes. Certainly, the judges conceded, there is a free-expression problem with the DMCA, because it shrinks opportunities for fair use. But this was a choice for Congress to make. Besides, neither the injunction against Corley nor the DMCA itself prohibited fair use of encrypted works. They only limited access, and ability to copy. True, such limitations make fair use more difficult. But, said the court, "we know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original." Thus, although Corley insisted that the public "should not be relegated
to a 'horse and buggy' technique in making fair use of DVD movies,"
the judges noted that people could still, without tools like DeCSS, comment
on encrypted films, quote dialogue, and even record portions "by
pointing a camera, a camcorder, or a microphone at a monitor as it displays
the DVD movie."93 Here, they ignored the
fact that without sophisticated and expensive equipment, it is not possible
successfully to videotape images on a computer or television set.94
But the judges were well aware that the DMCA radically limits fair use,
not to mention the lending and sharing that are ordinarily allowed, thanks
to the first sale rule. They simply thought Congress had the authority
to decide there was no reasonably effective alternative way of stopping
piracy. It did not help that the judges in the case were irked by the defendants'
rebellious, anti-corporate style. Both the trial and appellate courts
noted that 2600, the name of Corley's site, was the hertz frequency "of
a signal that some hackers formerly used to explore the entire telephone
system." Furthermore, the trial court's original order had simply
prohibited posting DeCSS; it was extended to bar hyperlinks after Corley
defiantly announced his intention to engage in "electronic civil
disobedience" by linking to other Web sites containing the program.95
The appeals court affirmed this controversial part of the injunction,
even though it is quite a stretch to view the creation of a hyperlink
as equivalent to the distribution of a circumvention tool within the meaning
of the DMCA. DVDs and Trade Secrets:
DVD Copy Control Association v. Bunner Another lawsuit over DeCSS (this one not involving the DMCA) was meanwhile
making its way through the California state courts. In January 2000, responding
to a suit by the movie industry's "DVD Copy Control Association,"
a California judge issued a preliminary injunction forbidding a number
of Web site operators from posting or distributing DeCSS, or any "master
keys," "algorithms," or other information about DVD encryption
codes.96 The suit was based on the idea that
DVD encryption involves "trade secrets," which publishers of
DeCSS were revealing, in violation of California law. Only one of the defendants, Andrew Bunner, appealed. And in November
2001, the California Court of Appeals reversed, ruling that computer programs
like DeCSS are protected by the First Amendment, and that the order banning
their dissemination was an unconstitutional prior restraint – censoring
"pure speech" before it happens. Such restraints are "highly
disfavored," the court said; the industry's right to protect its
"economically valuable trade secret" is not "more fundamental"
than free expression. If, later on, the industry actually proved trade
secret violations, the court said, a permanent injunction or money damages
might be allowed.97 Not only the movie industry but many other businesses were up in arms
after this ruling. Forty-two companies or organizations filed briefs supporting
the association's appeal to the California Supreme Court. Professor Richard
Epstein, who wrote a brief on behalf of Microsoft, Ford, and Boeing, among
others, asserted that the appeals court ruling threatened "a wide
range of trade secrets, from customer lists to blueprints to industrial
know-how -- even the secret formula for Coca-Cola."98
But the lead attorney for Bunner, David Greene, replied that the industry
was overreacting: "If they want to restrict people from publishing
information, they have to meet the First Amendment test," he said.99
Internet Filtering: Edelman
v. N2H2 Of the many lawsuits filed under the DMCA, one more is worth mentioning.
In July 2002, the ACLU filed suit on behalf of a young cyber-expert, Ben
Edelman, who researches Internet filters. Edelman wants to investigate
the filtering product Bess, manufactured by the N2H2 company. To obtain
Bess's list of blocked sites, he needs to reverse engineer and unlock
the filter's copyright-protected program. And although the Copyright Office
has created an exception to the DMCA's anti-circumvention rule for those
wanting to access Internet filter block lists, the exception doesn't apply
to the law's ban on the tools necessary to do the job. "In other words," the ACLU explained, "even though Ben
and everyone else has a right to perform that act of circumvention, creating
and distributing the tool necessary for actually exercising that right
is prohibited."100 Since Ben's purpose is
"legitimate research and criticism rather than piracy," his
planned project should qualify as fair use, as well as First Amendment-protected
expression. Yet because he wants to distribute his decryption program
widely so that others can access Bess's block list, the ACLU says his
actions will violate the DMCA. As another activist, Seth Finkelstein, explained, "independent investigation
of the snake oil claims" of filtering companies has now become "too
fraught with legal peril." Hence, Finkelstein also refrains from
distributing software that decrypts filtering blacklists.101 If the government follows the position it took in Edward Felten's case,
it may agree with the ACLU that Edelman's research is legitimate, and
argue that it is not prohibited by the DMCA. The N2H2 company, of course,
takes a different view, and argues that Edelman's planned research violates
the law.102 Yet few free-expression issues today
are more important, and more sweeping in their implications, than censorship
caused by Internet filters as they block art, literature, information,
and ideas that their corporate manufacturers decide are inappropriate,
or that their keyword-based programs mistakenly target.103
UPDATE: April 7, 2003 The federal district court dismissed Edelman's suit for lack of "a justiciable case or controversy." The judge asserted that Edelman's description of the research he intended to conduct was too vague to determine whether it would really violate the DMCA, and it was equally speculative whether N2H2 would sue. But the real reason may have been the judge's lack of sympathy with Edemman's claim. "There is no plausibly protected constitutional interest that Edelman can assert that outweighs N2H2's right to protect its copyrighted property from an invasive and destructive trespass," he wrote.103a The Circumvention
Dilemma The court of appeals in Corley put its finger
on the circumvention dilemma when it identified "two unattractive
alternatives": either tolerate some infringement of intellectual
freedom in an effort to stop piracy, or else "tolerate some decryption"
in order to avoid trampling on free expression. This "fundamental
choice," said the court, "cannot be entirely avoided."104 With the DMCA, of course, Congress chose to impair a lot of intellectual
freedom in order to stop the spread of circumvention tools that can be
used by digital pirates. In the process, it drastically undermined fair
use and the free exchange of ideas. And although there is no perfect answer
to the circumvention dilemma, the DMCA strikes too repressive a bargain. Corley's lawyers actually suggested a number of ways the DMCA could be
revised or narrowed, while still combating piracy. Congress could keep
the anti-circumvention rules but create broader exemptions for fair use
and other non-infringing uses, especially in libraries. It could limit
liability for circumvention "to those who intentionally aid and abet
copyright infringement or who conspire to infringe copyrights," as
is done in laws governing burglars' tools. It could amend the law to allow
copies made for personal, noncommercial purposes. And it could make disseminators
of decryption codes liable only if they "induced or acted in collusion
with" copyright infringers.105 Many other measures could be considered to redress the balance. What
needs to be kept in mind, though, is that copyright enforcement will never
be perfect, nor should it be. As many commentators have noted, 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 not prevented publishers, music producers, or other
media entities from enjoying healthy profits. Copying and sharing online
is in principle no different. 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-users, or music-loving
teenagers. Congress's – and the industry's – attempts to eliminate every
instance of possibly unlawful online copying can never be wholly successful.
The Internet is too vast, and communication among human beings is too
natural, for law enforcement to be able to stop all decryption, copying,
and exchange. Students trading music, scholars trading articles, and hackers
trading codes will continue, though some of them will be punished with
criminal prosecutions and costly lawsuits unless the DMCA is amended. The tools provisions of the DMCA strike directly at intellectual freedom,
as cases like Felten's and Sklyarov's demonstrate. The government's attempt
to distinguish between encryption research done for scholarly ends and
research done for purposes of infringement is inherently unstable, and
insufficient to let researchers or hackers know what is or is not a crime.106
Because the DMCA's tools provisions go to the heart of scientific inquiry
and communication, they are inherently flawed. IV. File Sharing, Cyber-Liberties,
and the Online Commons Napster and Its Successors A&M Records v. Napster "Peer-to-peer" sharing of popular music online is probably
the copyright industry's most visible concern, and the Napster case
was its first big move to stop it. As with DeCSS, the industry decided,
for reasons both practical and political, to go after the technology --
in this case, peer-to-peer file-sharing software -- rather than users
of the technology who actually engage in copyright infringement. Napster was the brainchild of 19 year-old Shawn Fanning. By 2000, he
had attracted $15 million in venture capital to support his "MusicShare"
software and a Web site offering indexing and technical help to music
lovers wanting to share their digital "MP3" music files. The
files themselves remained on their owners' home computers, but Napster's
site and software allowed searches through other people's files in their
home computers, and enabled free transfers. Fanning said he was merely
a matchmaker, helping fans engage in the kind of sharing and copying that
has always transpired offline. But there was no question, as one columnist
put it, that Napster was also "part of a movement challenging copyright."107 In 2000, the rock band Metallica fired the first volley in the peer-to-peer
wars by suing Yale, Indiana University, and the University of Southern
California for allowing students to access and use Napster to copy songs.
Yale promptly blocked access to Napster but the others, in the words of
one commentator, rejected the demand and stood up "for principles
of academic freedom [and] free exchange of information."108
Shortly afterwards, A&M Records, Geffen, Sony, and other music producers
sued Napster itself, as a "contributory and vicarious copyright infringer."
With about 60 million users sharing nearly 40 million songs, they said,
Napster was a major threat to the integrity of copyright. The trial judge
agreed, and issued a preliminary injunction barring Napster, Inc. from
"engaging in, or faciliating others in copying, downloading,
uploading, transmitting, or distributing" copyrighted music.109 Napster had two main defenses. First, it argued that file-sharing was
fair use, not copyright infringement. After all, in the Sony case
involving VCRs, the Supreme Court had said that copying an entire work
can sometimes be fair use. Moreover, many fans used Napster to sample
music in order to decide whether to buy it, much as shoppers do with earphones
and sample disks in music stores. But even assuming that many users were making unlawful copies, Napster
said, it wasn't guilty of "contributory" or "vicarious"
infringement simply because its software was being used for illegal purposes.
Burglars use tools, after all, but the manufacturers of screwdrivers are
not liable for their illegal acts. Hence, Napster's software was no more
unlawful than tape recorders and other tools for copying music. A 1992
federal law, the Audio Home Recording Act, protected such tape recording
against claims of copyright infringement.110 The courts were not impressed. They found Napster guilty as charged because
it had "sufficient knowledge" that infringement was going on,
its software contributed to the illegal activity, and it had the ability
"to police its system" but failed to do so. Importantly, though,
the court of appeals did modify the preliminary injunction against Napster,
which it found to be too broad. It was Napster's conduct, not simply its
technology, that contributed to copyright infringement, said the court.
To find liability "simply because a computer network allows for infringing
uses would violate Sony and potentially restrict activity unrelated
to infringing use."111 The appeals court thus ordered that the injunction be narrowed because
it was unfair to put "the entire burden" on Napster of ensuring
that no copyright infringement was going on. Instead, the music companies
had to tell Napster which of their copyrighted works were available on
its system before Napster had the duty to delete them. But even after the trial judge issued this modified injunction, Napster
was doomed. Within a few months, the judge ordered a shutdown of the site
until Napster removed all files from its index which it had "reasonable
knowledge" contained copyrighted works. Even with a new filtering
system in place, Napster wasn't able to satisfy the court, and eventually
agreed to a $26 million settlement of the case. It soon went out of business.112
Senator Orrin Hatch commented with dismay on the process by which a preliminary
injunction -- "before a trial on the merits, mind you" -- destroyed
an enterprise "that had developed a community of over 50 million
music fans."113 Metro-Goldwyn Mayer v.
Grokster The demise of Napster hardly ended online file-sharing. New peer-to-peer
software like Grokster, Morpheus, and KaZaA soon replaced Napster. These
programs enable users to connect with each other and share information
of all kinds, including copyright-protected music, without a central Web
site, index, or overt conduct of the kind that doomed Napster. By 2002,
more than 14 million fans were using Grokster and similar programs to
download music, movies, TV shows, photos, and text for personal use.114
Another lawsuit was inevitable, and in late 2001, 28 media companies
sued the distributors of Grokster, Morpheus, and KaZaA for contributory
copyright infringement. MusicCity, developer of Morpheus, moved to dismiss
the case, arguing that under the Sony decision, courts can't ban
technology that is capable of lawful uses simply because it can also be
used for infringement. MusicCity pointed out, for example, that Morpheus
file-sharing technology is used by Project Gutenberg, a respected online
archive, to convert many non-copyrighted works, "from the King James
Bible to Shakespeare to the CIA World Fact Book," to digital form.115 Clearly, the issue is whether copying technologies like Grokster, Morpheus,
and KaZaA are more like Napster or more like the video cassette recorders
that were saved from doom by the Sony case. The trial judge put
off deciding, and set the lawsuit for trial.116
However MGM et al. v. Grokster is decided, it has implications
well beyond the borders of the United States. Early in 2002, the Amsterdam
Court of Justice in the Netherlands ruled that KaZaA is not liable for
the way individuals use its software, and that those concerned with copyright
violations should go after the infringers, not the makers of tools.117
Even if a U.S. court comes out the other way, its ruling will have limited
effect in the face of the Dutch decision. Indeed, the enforcement problems would be daunting. Although StreamCast,
the successor to MusicCity, is based in Tennessee and Grokster is owned
by a California family, KaZaA, as of late 2002, was managed in Australia
and distributed by a company incorporated on the South Pacific island
of Vanuatu. Its computer servers were in Denmark and as The New York
Times reported, "its software was last seen in Estonia."118
In this global marketplace, even a court win for the copyright industry
would be impossible to enforce fully. As John Alderman concludes (in a
book telling the Napster story), it's ironic that by killing Napster,
the industry pushed music fans toward more sophisticated programs which
replace the central meeting place with software that directly connects
users to each other.119 UPDATE: April 25, 2003 The federal district court granted "summary judgment" for Grokster and Streamcast Networks (which distributes Morpheus). The judge found that these programs are more like VCRs and photocopy machines than like the Napster Web site. Although Grokster and Streamcast undoubtedly know that many users of their products are infringing copyrights, there was no evidence that they assisted with specific acts of infringement. And there was evidence of "substantial noninfringing uses" for the file-sharing software, from distributing free songs to "sharing the works of Shakespeare."119a The industry vowed to appeal. Universities, Corporate
Sabotage, and Music Profits Even within the U.S., file-sharing technology is difficult to suppress.
Indeed, it is questionable whether this approach makes sense. The industry's attempt to persuade American universities to crack down
on file-sharing, for example, raises troubling questions about academic
freedom. On one side, the trade associations say that "copyright
infringement is theft, ... pure and simple." On the other, as the
Electronic Privacy Information Center (EPIC) argues, the level of monitoring
desired by the industry would require universities to "delve into
the content and intended uses of almost every communication. Such a level
of monitoring is not only impracticable; it is incompatible with intellectual
freedom."120 The Chronicle of Higher Education notes that peer-to-peer networks
have many legitimate purposes, such as "scientific research and academic
collaboration." It adds that without a wholesale crackdown, universities
can still stop piracy by observing "unusual spikes that might indicate
that someone was illegally sharing the latest Ben Affleck movie or Britney
Spears video."121 Many observers say the industry has taken precisely the wrong approach
ever since the arrival of the Internet. Instead of embracing the new technology
and recognizing that music, movies, and other arts would now be shared
and distributed in new ways, the industry, dinosaur-like, tried to stop
history. Eventually, music companies did set up Web sites where songs
can be obtained online for modest fees. But intra-industry disagreements
hobbled these ventures; performers were incensed at their minuscule share
of the royalties; and consumers were not thrilled to find that they were
only allowed to "rent" songs that would disappear after a set
period of time and could not be moved to portable MP3 players, and that
many of the most popular new recordings were being kept out of the archives
in an attempt to protect CD sales.122
Many critics also argue that online file-sharing, whether or not a violation
of copyright law, ultimately helps rather than harms the industry. As
the audio artists and anti-copyright activists Negativland put it, "the
literally unconsumable plethora" of free music online "does
create sales." Free music is "excellent advertising," which
produces enough new sales to balance out losses caused by file-sharing.
"The amount of free music downloading going on (perhaps now in the
billions) really scares the recording industry, but they seem to forget
the scales of practicality involved. They only need to sell a fraction
of that amount to become sinfully rich anyway."123 Similarly, John Alderman points out that "songs and artists were rediscovered by listeners whose fond memories wouldn't support a $16 CD but who were happy to download a song for a nostalgic listen."124 In this scenario, no sale is lost because none was likely in any event. To the contrary, the triggering of fond memories might lead to a purchase that wouldn't otherwise happen. Surveys late in 2002 indicated that although music sales were down about
10% for the year, it was not clear that file-sharing -- rather than a
slow economy or other factors -- was responsible. According to one report,
32% of Internet downloaders said they bought less music since they began
file-sharing online, but 25% said they bought more. Another survey found
people who use file-sharing have increased their overall spending on tapes
and CDs: "47% of experienced file sharers with broadband Internet
access and CD burners increased their spending, while 36% decreased their
spending." The reason, according to one of the researchers, was that
"anyone who has tried to download music from the Internet knows that
free doesn't mean free – it takes time spent, energy spent, hassle,
disappointing results."125 A report
late in 2002 suggested that old-fashioned bootlegging, rather than online
file-sharing, was a more likely factor in the decline of music sales.126 As for the potential loss to musicians, some commentators say that alternative
ways of paying them should be explored. In the 1960s, for example, the
Grateful Dead promoted free circulation of bootleg tapes on the theory
that more sales of concert tickets would result.127
As it is, under the present system musicians' royalties are only a small
fraction of actual CD sales, with most of the revenue going to corporate
producers, retailers, and middlemen. With costly, drawn-out lawsuits proliferating, and offering only limited
hope of stopping file-sharing, the industry has embarked on some dubious
"direct action" schemes. According to CNET News, media companies
have created a "cottage industry" of saboteurs who "saturate
file-swapping networks with false or corrupted versions of songs and videos,
hoping to frustrate would-be downloaders." The New York Times
likewise reported on "slyly intrusive actions by agents for the musicians
or record labels," including phony files designed to discourage file-sharing
(but added that no companies admit planting viruses). KaZaA responded
to the sabotage by developing new software that "allows people to
rate files" so that users can avoid corrupt or false ones.128 The industry has also sent numerous threatening letters to Internet service
providers (ISPs) in an attempt to compel them to block Web sites and search
engines that offer or link to copyrighted music. One such site, the subject
of a lawsuit brought by 13 recording companies, contained a cautionary
notice explaining that the music had been uploaded by fans for sharing,
and was "only for trial listening," not for commercial use.
The notice added: "support your favorite singers; please buy their
CDs."129 Most ISPs, for their part,
find the prospect of policing possible unlawful activity among their billions
of users to be distinctly unappealing -- somewhat like forcing the telephone
company to listen in on users' conversations for evidence of crime. The industry has also developed new digital rights management techniques.
Some CDs now come with locks to prevent them from being played or copied
on computers.130 "Clickwrap" agreements
-- those online scrolls of legalese to which one must click "yes"
in order to reach the desired content -- have become increasingly oppressive.
One Web site includes a lengthy agreement that requires viewers to waive
their right to fair use.131 Epic Records recently tried locking up advance copies of Tori Amos and
Pearl Jam CDs by gluing them inside Sony Walkman players, which were then
sent to reviewers. But as one critic wrote, "even a 'glueman' player
is unlikely to deter a diehard critic" who wants to copy or resell
the disk. One reviewer said he was able to pop the player open, in order
to "listen to it how I want to listen to it – and in my stereo
is where it sounds best."132 For
the music industry to force reviewers less resourceful than this one to
evaluate new music by listening to it on a Walkman instead of a home stereo
does seem self-defeating. Finally, the industry is pushing Congress for more legislation. In late
2001, Senator Fritz Hollings introduced a bill that would require manufacturers
to embed "security technologies" in all future computers and
other digital products -- including CDs, videos, e-books, printers, hard
drives, CD and DVD players, video game consoles, set-top cable boxes,
and satellite TV. Anyone removing or altering the locks, or distributing
copyrighted material with the locks disabled, would face the usual copyright
penalties of five years in prison and fines up to $500,000 for a first
offense; double that for subsequent offenses.133
Groups like Boycott-riaa.com and StopPoliceware.org began organizing
opposition to the proposed law. The EFF wrote to Hollings reminding him
that free expression, fair use, and first-sale rights, already compromised
by the DMCA, would become hopelessly atrophied by his proposal. StopPoliceware
pointed out that "since alternative operating systems like Linux
and FreeBSD would most likely refuse to incorporate government policeware
into their code, users of these open-source systems would also be eligible
for hard time."134 Even more than the DMCA, Hollings's bill would eliminate the balancing
role traditionally performed by courts in copyright cases, by giving the
force of law to private security systems and punishing those who evade
or disable them, regardless of the impact on fair use or intellectual
freedom. As Pamela Samuelson summed up: the Hollings bill "aims to
outlaw the general purpose computer."135 The Creative Commons:
Restoring the Copyright-Free Expression Balance Whatever the outcomes of all the lawsuits over circumvention and file-sharing,
it is clear that, thanks to the Internet, our culture has fundamentally
changed. As hard as the industry pushes to control how its products are
used, new ways of copying and sharing emerge. The open source movement,
for example, works to make source code (the human-readable building blocks
of software) available to all who use computer programs. The open source
Linux operating system has become an increasingly popular alternative
to Microsoft. Microsoft and other manufacturing giants are aware of the challenge posed
by Linux. In May 2002, the industry formed the "Initiative for Software
Choice" to combat the increasing number of legislative proposals
and statements from foreign governments promoting open-source software.136
The industry group said it simply wanted "even-handed competition,"
but Bruce Perens, a strategist who was fired by Hewlett-Packard because
of his open-source advocacy, said the group's real purpose was "to
maintain the status quo" and quash competition from Linux. Perens
formed his own organization, "Sincere Choice," to advocate for
government policies favoring purchase of software "that operates
well with other programs." The issue is crucial, he says, because
software giants like Microsoft and IBM "have huge toll booths on
the Internet that can limit the spread of open-source software."137 In October 2002, Mitch Kapor, a longtime open source supporter who made
his fortune with the Lotus spreadsheet, formed the "Open Source Applications
Foundation" with $5 million of his own money, to create and distribute
free software for e-mail programs, file-sharing, and other collaborations.
The foundation will offer its code for free to individuals or organizations,
provided they reciprocate by making programs they produce with the foundation's
software freely available as well.138
Earlier in 2002, Lawrence Lessig and his colleagues created another organization,
Creative Commons, with the goal of enlarging the public domain. Their
first project was to design licensing agreements that would allow works
to be copied and used well before their copyright term expires. Musicians
interested in building an audience and visual artists wanting to disseminate
their work could license it for noncommercial copying. "Inspired
in part by the free-software movement," they explained, "which
has attracted thousands of computer programmers to contribute their work
to the public domain, Creative Commons plans to create a 'conservancy'
for donations of valuable intellectual property whose owners might opt
for a tax break rather than selling it into private hands."139
A similar project, developed by the Soros Foundation, aims to counter
the increasing commercialization of academic publishing, with its often
prohibitive subscription fees, by encouraging scholars and universities
to create open-access journals and "self-archiving" programs.
The goal is to make research and education more accessible, "share
the learning of the rich with the poor and the poor with the rich,"
and "lay the foundation for uniting humanity in a common intellectual
conversation and quest for knowledge."140 The Electronic Frontier Foundation has been another leader in promoting
alternatives to a heavily controlled copyright system. In addition to
providing exhaustive information on copyright battles, EFF's Web site
gives advice on the uses and limits of file-sharing and circumvention
technology. EFF also collaborates with Harvard's Berkman Center and law
clinics at other universities on the Chilling Effects Clearinghouse, which
focuses on the "cease and desist" letters that corporate copyright
owners frequently use in efforts to shut down offending Web sites. The brainchild of Berkman Center fellow Wendy Seltzer, the Chilling Effects
Clearinghouse offers information on fair use for Internet sites catering
to music or movie fans or otherwise containing copyrighted or trademark-protected
images. Many of the sites criticize, parody, or protest the conduct of
corporate trademark owners. The database of cease-and-desist letters,
for example, includes one accusing an anti-Enron site, "EnronownstheGOP.org"
of intellectual-property infringement. Another targets "Radioslack.com,"
a site critical of the Radio Shack retail chain.141
Seltzer says the Clearinghouse aims to "protect free expression against
unwarranted legal threats by collecting and analyzing cease-and-desist
notices sent to Internet users," and helping them understand their
rights in response.142 Another initiative is Public Knowledge, a nonprofit whose purpose is
to make intellectual property law "serve democracy, science, and
culture." Directed by Gigi Sohn, the organization combines research
with activism, promising to work with librarians, computer scientists,
and other groups in challenging parts of the DMCA. It also advocates with
the U.S. Patent Office for policies that will advance research, health
care, and the public welfare.143 Along with these advocates are a handful of legislators who recognize
that the imbalance in current copyright law is unhealthy and are working
to change it. Early in 2002, Representative Rick Boucher of Virginia wrote
that clickwrap licenses and other forms of digital rights management,
backed up with enforcement tools like the DMCA, are endangering free expression
and fair use. From "the college student who photocopies a page from
a library book or prints an article from a newspaper's Web site for use
in writing a report, to the newspaper reporter excerpting materials from
a document for a story," Boucher said, "the very vibrancy of
our democracy is dependent upon the information availability and use facilitated
by the fair-use doctrine." And if the direction of U.S. copyright
policy doesn't change, he warned, "a time may soon come when what
is available for free on library shelves will only be available on a 'pay
per use' basis."144 Boucher and two of his colleagues have filed legislation that would ameliorate
some of the more drastic terms of the DMCA. Their bill would exempt from
the DMCA anyone who "is acting solely in furtherance of scientific
research into technological protection measures," as well as any
circumvention for purposes of fair use. Following the Sony case,
it would also legalize the manufacture or distribution of "a hardware
or software product capable of enabling significant noninfringing use
of the copyrighted work."145 The Supreme Court has called copyright "the engine of free expression."146
But this is only true if our laws and policies maintain the "difficult
balance" between copyright control and the system's free-expression
safety valves. Today, that balance has gone badly awry. Even in the age of the Internet, with its potential for massive sharing
and copying, more balanced approaches are possible. The losing lawyers
in the Corley case gave some examples. (See The
Circumvention Dilemma, above.) Attorney David Nimmer suggests others:
Congress could require companies that encrypt copyrighted works to provide
a means of unlocking them for legitimate first-sale or fair-use purposes.
It could also immunize consumers who find themselves "stymied by
overreaching on the part of content owners" and who resort to "self-help."147
Lawrence Lessig adds that mandatory licensing of music online -- that
is, requiring copyright owners to allow the replay or copying of their
products in exchange for a reasonable fee -- would provide the industry
with compensation while stopping its attempts to shut down the Groksters
of the world.148 Mandatory licensing
is a standard feature of music on radio. In 1918, Justice Louis Brandeis wrote that "the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas -- become, after voluntary communication to others, free as the air to common use." These "incorporeal productions," he said, should have "the attribute of property" only "in certain classes of cases where public policy has seemed to demand it."149 Today, though, public policy has stretched "the attribute of property" too far, and as a result has skewed the copyright balance. Increasingly, readers, writers, artists, librarians, scholars, and many others are recognizing what is at stake.
1. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). 2. U.S. Constitution, article I, §8, clause 8. "Science," in 18th century parlance, probably meant general knowledge, while "useful arts" referred to inventions and discoveries. But as the leading legal treatise on copyright notes, there is "some disagreement" on thise point. 1 Melville Nimmer & David Nimmer, Nimmer on Copyright (Matthew Bender, 2002), §1.03 n.1. 3. Marcus Errico, "Okay, Six Choruses of ‘Kumbaya' -- That'll Be $1.50," Eonline, Aug. 24, 1996, www.eonline.com/News/Items/0,109,00.html (accessed 10/25/02); "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, 27. 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). 4. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), 95. 5. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: NYU Press, 2001), 11-12. Vaidhyanathan notes that the term "intellectual property"is "fairly young," having originated with the UN's World Intellectual Property Organization (WIPO) in 1967. "Soon after that, the American Patent Law Association and the American Bar Association's Section on Patent, Trademark, and Copyright Law changed their names to incorporate ‘intellectual property.' Over the past thirty years, the phrase ‘intellectual property' has entered common usage with some dangerous consequences." Id., 11-12. See also Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia U. Press, 1967), 74 ("to say that copyright is ‘property,' although a fundamentally unhistorical statement, would not be boldly misdescriptive if one were prepared to acknowledge that there is property and property, with few if any legal consequences extending uniformly to all species and that in practice the lively questions are likely to be whether certain consequences ought to attach to a given piece of so-called property in given circumstances"). 6. 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." 7. 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." Pamela Samuelson, "The Copyright Grab," 1995, www.negativland.com/white.html (accessed 10/24/02); see also Paul Goldstein, Copyright's Highway: The Law and Lore of Copyright From Gutenberg to the Celestial Jukebox (New York: Hill & Wang, 1994), 39-45. On the four main free-expression safety values, see Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," 74 N.Y.U. Law Review 354 (1999). 8. Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 363-64, 349 (1991). 9. The Supreme Court ruled that recording (and thus copying) TV programs for later playback was fair use in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). 10. Campbell v. Acuff-Rose Music, Inc., 510 U.S.569 (1994). Whether the fair use defense applies depends on many factors, four of which are set out in the law: "(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 on the potential market for or value of the copyrighted work." 17 U.S. Code §107; see Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560-61 (1985). 11. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), id., 579 (Brennan, White, & Marshall dissenting). 12. 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), 20. 13. 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 later settled: the Mitchell estate agreed to drop its suit and in exchange, Randall's publisher made an unspecified contribution to Morehouse College in Atlanta. American Library Association Newsletter on Intellectual Freedom, July 2002, 177. 14. The first sale doctrine is codified in the copyright law: 17 U.S. Code §109(a). 15. Joseph Story, 3 Commentaries on the Constitution of the United States §1147 (Boston: Hilliard Gray & Co., 1833) (purpose of the Copyright Clause was to "admit the people at large, after a short interval, to the full possession and enjoyment of all writings and inventions without restraint"). 16. Jessica Litman, "The Public Domain," 39 Emory Law Journal 965, 966 (1990). Supreme Court Justice Joseph Story explained not long after the Copyright Clause was written that "few, if any, things"are "strictly new and original throughout. Every book in literature, science and art borrows, and must necessarily borrow, ... much which was well known and used before." Emerson v. Davies, 8 F. Cas. 615, 619 (No 4,436) (CCD Mass. 1845), quoted in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). 17. See Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: NYU Press, 2001), 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), 11. 18. 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), 40-43. 19. Written testimony of Dennis Karjala before House of Representatives Committee on the Judiciary, Subcommittee on Courts and Intellectual Property, on H.R. 989 (July 13, 1995), n.8, reprinted in The Copyright Term Extension Act of 1995, Hearing Before the Committee on the Judiciary, United States Senate, on S. 483, 104th Congress, 1st Session (Sept. 20, 1995), 83 n.8; Frances McCullough letter, "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). Similarly, Lillian Hellman would not license any except "first-class" productions of her plays. Joyce Wadler, "The Play's His Thing, Even if You Never Heard of It," New York Times, Oct. 9, 2002, A28. 20. See Minority Views of Senator Hank Brown, Report of the Senate Committee on the Judiciary on the CTEA, Senate Report No. 104-315, 104th Congress, 2nd Session (July 10, 1996), 34 (new editions of My Antonia in 1994 cost "from $2 to $24, thereby making the story available to many more people"); see also Brief of College Art Association, et al. as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), 25. 21. See The Copyright Term Extension Act of 1995, Hearing Before the Committee on the Judiciary, United States Senate, on S. 483, 104th Congress, 1st Session (Sept. 20, 1995), 72 (statement of Professor Peter Jaszi). 22. Act of Feb. 3, 1831, ch. 16, §16, 4 Stat. 439; Act of Mar. 4, 1909, ch. 320, §§23-24, 35 Stat. 1080-81. 23. Public Law 87-668, 76 Stat. 555 (1962); Public Law 89-142, 79 Stat. 581 (1965); Public Law 90-141, 81 Stat. 464 (1967); Public Law 90-416, 82 Stat. 397 (1968); Public Law 91-147, 83 Stat. 360 (1969); Public Law 91-555, 84 Stat. 1441 (1970); Public Law 92-170, 85 Stat. 490 (1971); Public Law 92-566, 86 Stat. 1181 (1972); Public Law 93-573, Title I, §104, 88 Stat. 1873 (1974). 24. Public Law 94-553, §304, 90 Stat. 2572 (1976). 25. The law speaks of works "made for hire"
-- generally, by corporate employees or contractors 26. James Surowiecki, "Righting Copywrongs," The New Yorker, Jan. 21, 2002, 27. Some say, however, that Mickey Mouse changed sufficiently after Steamboat Willie so that Disney's copyright on the image would not have expired in 2003. See 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), 123-26. Martin also argues that even after term extension, Disney would not have lost its trademark rights to control uses of Mickey's image. 27. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, 12; see also Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), 33 n.10. 28. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, 12; see also Linda Greenhouse, "Justices to Review Copyright Extension," New York Times, Feb. 20, 2002, C1, C6 ("[t]he 1998 extension was a result of intense lobbying by a group of powerful corporate copyright holders, most visibly Disney"). That Congress did the industry's bidding in passing the Sonny Bono law was not a new development in American politics: Jessica Litman has traced how, about a century ago, "Congress got into the habit of revising copyright law by encouraging representatives of the industries affected ... to hash out among themselves what changes needed to be made and then present Congress with the text of appropriate legislation. By the 1920s, the process was sufficiently entrenched that whenever a member of Congress came up with a legislative proposal without going through the cumbersome prelegislative process of multiparty negotiation, the affected industries united to block the bill. ... The pattern has continued to this day." Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), 23. 29. Brief for Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), 7, 46, citing Edward Rappaport, "Copyright Term Extension: Estimating the Economic Values," Congressional Research Service Report for Congress (May 11, 1998), 8-16. 30. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, 12; 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), 12. 31. 144 Congressional Record 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, A13. 32. Andrea Foster, "A Bookworm's Battle," Chronicle of Higher Education, Oct. 25, 2002, A35. 33. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), 122. 34. Andrea Foster, "A Bookworm's Battle," Chronicle of Higher Education, Oct. 25, 2002, A35; Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, 12. 35. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, 12; Brief for Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), 3-5. 36. Eldred v. Reno, 239 F.3d 372, 375-76, rehearing denied, 255 F.3d 849 (D.C. Cir. 2001). 37. Eldred v. Reno, 239 F.3d 372, 375-76, rehearing denied, 255 F.3d 849 (D.C. Cir. 2001). 38. Eldred v. Reno, 239 F.3d 372, 381-82, rehearing denied, 255 F.3d 849 (D.C. Cir. 2001) (Sentelle, dissenting). Judge Sentelle added with respect to harmonization that Europe's copyright terms are irrelevant, for neither the European Union nor its member nations are bound by the U.S. Constitution. Id., 384. 39. For a complete list of the briefs and their signers, see the Eldred web site, eldred.cc (accessed 11/11/02). 40. Brief of College Art Association, et al. as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), 13. The other signers were the Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers, and National Initiative for a Networked Cultural Heritage. 41. Brief of College Art Association, et al. as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), 7-10. 42. Brief of College Art Association, et al. as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), 7-10. 43. 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), 3-5. 44. 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), 13-14. 45. 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), 22-23. 46. Brief of Amici Curiae National Writers Union et al. in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), 7, 13-14. 47. Brief of George A. Akerlof et al., in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002). 48. 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), 19. Other signers were the American Historical Association, American Library Association, Art Libraries Society of North America, Association for Recorded Sound Collections, Association of Research Libraries, Council on Library and Information Resources, International Association of Jazz Record Collectors, Medical Library Association, Midwest Archives Conference, Music Library Association, National Council on Public History, Society for American Music, Society of American Archivists, and Special Libraries Association. 49. 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), 29-30. The library exemption is found in 17 U.S. Code §108(h). It adds to a section of the law that permits libraries to make limited copies for purposes of preservation or replacement, and allows patrons to make isolated, occasional copies as long as libraries post copyright warnings near the photocopy machines. 17 U.S.Code §108 (a)-(g). 50. Brief for the Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002). 51. Brief for the Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), 46. 52. 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). 53. Brief Amici Curiae of Dr. Seuss Enterprises, et al., Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), 19. 54. Curator's notes, "Illegal Art" exhibit, sponsored by StayFree! magazine, CBGB 313 Gallery, New York City, Nov. 13-Dec. 6, 2002. 55. Brief for the Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), 40; see also Amicus Curiae Brief of the Songwriters Guild of America Concerning First Amendment Issues and in Support of Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 5, 2002), 15 ("First Amendment challenges to copyright laws have generally been rejected precisely because the ... idea/expression dichotomy adequately protects First Amendment interests"). 56. Brief for the Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), 37-38. 57. Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), 32 n.4; Council Directive 93/98/EEC, Art. 1(1), Art. 1(3), Art. 1(4), cited in Brief of Intellectual Property Law Professors as Amici Curiae Supporting Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), 17; see also Brief of Amicus Curiae International Coalition for Copyright Protection in Support of Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), 5-7. 58. Brief for Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), 42-44 (also noting that six out of 20 categories of copyright "are actually less harmonized now than they were prior to CTEA"). A brief from 53 copyright scholars pointed to numerous other inconsistencies between U.S. and European copyright law, which the Sonny Bono law did not resolve. Brief of Intellectual Property Law Professors as Amici Curiae Supporting Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), 16-19; see also Report of the Senate Committee on the Judiciary on the CTEA, Senate Report No. 104-315, 104th Congress, 2nd Session (July 10, 1996), 14; id., 30 (Minority Views of Senator Hank Brown); Marci Hamilton, "Copyright Duration Extension and the Dark Heart of Copyright," 14 Cardozo Arts & Entertainment Law Journal 655 (1996). 59. Marjorie Heins notes, Oct. 9, 2002; see also Linda Greenhouse, "Justices Hear Arguments on Extension of Copyrights," New York Times, Oct. 10, 2002, C1. 60. Marjorie Heins notes, Oct. 9, 2002; Michael Grebb, "Justices Doubt Free Speech Link," Wired News, Oct. 10, 2002, www.wired.com/news/politics/0,1283,55684,00.html (accessed 10/10/02). 61. Lessig Blog Archives, http://cyberlaw.stanford.edu/lessig/blog/archives/cat_eldredcc.shtml (accessed 12/10/02). 61A. Eldred v. Ashcroft, No. 01-618, slip opinion, 8 n.4; Breyer dissent, 8-11. 61B. Id., Stevens dissent, 21-22. 61C. Id., Breyer dissent, 24. 61D. Amy Harmon, "A Corporate Victory But One That Raises Public Consciousness," New York Times, Jan. 16, 2003, A24. 62. Amy Harmon, "Debate to Intensify on Copyright Extension Law," New York Times, Oct. 7, 2002, C1, C6. 63. Editorial, "An Abuse of Copyright," New York Times, Oct. 11, 2002, A32 64. Amy Harmon, "Case Could Shift Balance in Debate on Public Domain," New York Times, Feb. 20, 2002, C7. 65. Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), 95. 66. 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), 90-96; Mike Godwin, "Copywrong: Why the Digital Millennium Copyright Act Hurts the Public Interest," Reason, July 2001, 57. Litman recounts that the Green Paper's release caused "dismay among libraries, composers, writers, online service providers like America Online and Compuserve, and the makers of consumer electronic devices and computer hardware"; public hearings were held, but in the end, the Administration altered only the style and strategy, not the substance, of its views on how copyright should work online. The main difference between the Administration's initial Green Paper and its final White Paper, Intellectual Property and the National Information Infrastructure, was that the White Paper did not propose major changes in the substance of copyright law. Rather, says Litman, it interpreted existing law to assert that "most of the enhanced protection copyright owners might want was already available." This included the notion that "any use of a computer to view, read, reread, hear, or otherwise experience a work in digital form would require reproducing that work in a computer's memory," and since copyright owners have exclusive control over reproductions, this interpretation meant that a violation of copyright law would occur each time a work was read or viewed without a new permission. Digital Copyright, 93-95. 67. 17 U.S. Code §1201(a)(1)(A), (b). The DMCA provides for the usual copyright law 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. Code §§1203, 1204. 68. Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), 144. 69. 17 U.S. Code §1201(d), (e), (f), (g) (also including an exemption for law enforcement). 70. 17 U.S. Code §1201(a)(1)(B). 71. 37 Code of Federal Regulations §201.40(b); see also Robin Gross, "DMCA Takes Full Effect – Millions of Americans Become Criminals," EFFector Online Newspaper, Vol. 13, No. 11 (Dec. 13, 2000), www.eff.org/effector/HTML/efffect13.11.html (accessed 4/8/02). In late 2002 the Copyright Office announced its second "triennial rulemaking proceeding" as mandated by the DMCA, to decide if additional fair use exemptions are needed. U.S. Copyright Office, NewsNet, Issue 174, Oct. 30, 2002, http://www.copyright.gov/1201 (accessed 11/8/02). 72. WIPO Copyright Treaty, Article 11, quoted in The Digital Millennium Copyright Act of 1998 - U.S. Copyright Office Summary (Dec. 1998), www.loc.gov/copyright/legislation/dmca.pdf (accessed 11/11/02). 73. The Digital Millennium Copyright Act of 1998 - U.S. Copyright Office Summary (Dec. 1998), www.loc.gov/copyright/legislation/dmca.pdf (accessed 11/11/02). 74. WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 Before the House Subcommittee on Courts and Intellectual Property, 105th Congress, 1st Session (Sept. 16, 1997), 62 (testimony of Assistant Secretary of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman in response to questions from Representative Rick Boucher). 75. Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), 131. 76. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442, 432, 446 (1984). 77. See the RIAA's April 9, 2001 letter to Felten, www.eff.org/Legal/Cases/Felten_v_RIAA/20010409_riaa_sdmi_letter.html (accessed 8/28/02); "EFF Protects Scientists' Speech in RIAA Case," EFF press release, Oct. 25, 2001, www.eff.org/Legal/Cases/Felten_v_RIAA/20011025_eff_felten_pr.html (accessed 2/24/02); Electronic Frontier Foundation, Unintended Consequences: Three Years Under the DMCA (May 3, 2002), http://www.eff.org/IP/DMCA/20020503_dmca_consequences.pdf (accessed 12/11/02); Defendant John Ashcroft's Memorandum in Support of Motion to Dismiss, Felten v. RIAA, No. CV- 01- 2669 (GEB) (D. N.J., Sept. 25, 2001); Defendant John Ashcroft's Reply Memorandum in Support of Motion to Dismiss, Felten v. RIAA, No. CV- 01- 2669 (GEB) (D. N.J., Nov. 8, 2001). 78. Defendant John Ashcroft's Reply Memorandum in Support of Motion to Dismiss, Felten v. RIAA, No. CV- 01- 2669 (GEB) (D. N.J., Nov. 8, 2001), 2-3. 79. EFF Media Release, "Scientists Support Professor's Copyright Challenge," Aug. 13, 2001; David McGuire, "Scientist Ends Crusade Against Copyright Law," Washington Post, Feb.6, 2002, www.newsbytes.com/news/02/174284.html (accessed 2/12/02); "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). For the EFF's archive on the case, see www.eff.org/IP/DMCA/Felten_v_RIAA (accessed 11/11/02). 80. 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, 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); "Charges to be Dropped Against Russian Cryptographer," Associated Press, Dec. 14, 2001, www.freedomforum.org/templates/document.asp?documentID=15536&printerfriendly=1 (accessed 11/11/02). 81. Jennifer 8. Lee, "In Digital Copyright Case, Programmer Can Go Home," New York Times, Dec. 14, 2001, C4; U.S. Attorney Press Release, "On Dropping of Charges Against Dmitry Sklyarov," Dec. 13, 2001, www.eff.org/IP/DMCA/US_v_Elcomsoft/20011213_usatty_pr.html (accessed 12/2/02). 82. Amicus Brief of the Electronic Frontier Foundation, et al. in Support of Motion to Dismiss, in United States v. Elcom Ltd., CR 01-20138 RMW (N.D. Cal. Feb. 4, 2002), 5-7, 22-23. Other signers were the ACM Committee on Computing Law & Technology, American Association of Law Libraries, Consumer Project on Technology, Electronic Privacy Information Center, Music Library Association, and U.S. Public Policy Committee of ACM. 83. Order Denying Defendants' Motions to Dismiss the Indictment on Constitutional Grounds, United States v. Elcom Ltd., 203 F. Supp.2d 1125, 1131 (N.D. Cal. 2002). 84. Shannon Laferty, "Digital Copyright Act Goes Before First Criminal Jury," The Recorder, Dec. 4, 2002, www.law.com (accessed 12/4/02). On Dec. 17, 2002, the jury acquitted ElcomSoft -- perhaps in reaction to perceived overreaching by the government. 85. See "Interview with Jon Johansen," LinuxWorld.com, n.d., www.linuxworld.com/linuxworld/lw-2000-01-dvd-interview.html (accessed 11/5/02), and Johansen's trial testimony, www.eff.org/IP/DMCA/MPAA_DVD_cases/20000720_ny_trial_transcript.html (accessed 12/4/02). 86. Brief for Defendants-Appellants, Universal City Studios v. Corley, No. 00-9185 (2nd Cir. 2001), 5. It was not clear why the studios chose to sue only Corley and two others associated with his Web site, 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." Id. 87. Universal City Studios v. Reimerdes, 82 F. Supp.2d 211 (S.D.N.Y. 2000) (preliminary injunction); 111 F. Supp.2d 294, 346 (S.D.N.Y. 2000) (decision after trial). 88. Brief for Defendants-Appellants, Universal City Studios v. Corley, No. 00-9185 (2nd Cir. 2001), 7. Corley's co-defendants settled the case and did not appeal. 89. Brief for Defendants-Appellants, Universal City Studios v. Corley, No. 00-9185 (2nd Cir. 2001), 48. 90. 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. By late 2002, "DeCSS ties" bearing portions of the code were also available; see legalminds.lp.findlaw.com/list/cyberia-l/msg33924.html (accessed 12/2/02); and composer Joe Wecker had written "DeCSS (Descramble)," a song whose lyrics consist of the DeCSS code. Notes on Music Featured in "Evidence: A Selection of Banned and Contested Art," Columbia University National Arts Journalism Program, "The New Gatekeepers" Conference, Nov. 20-21, 2002. 91. Brief of Amici Curiae Professors Yochai Benkler and Lawrence Lessig in Support of Appellants, Universal City Studios v. Corley, No. 00-9185 (2nd Cir. 2001), 9. 92. Brief for Intervenor United States of America in Universal City Studios v. Corley, No. 00-9185 (2nd Cir. 2001), 24, quoting Report of the House Committee on Commerce on the DMCA, H.R. Rep. No. 105-551, 105th Congress, 1st Session (1998), 25. 93. Universal City Studios v. Corley, 273 F.3d 429, 459 (2nd Cir. 2001). Corley did not appeal to the Supreme Court. 94. Thanks to Cindy Cohn for pointing this out. 95. Universal City Studios v. Corley, 273 F.3d 429, 441 (2nd Cir. 2001); id. at 436 n.2; see also the district court's opinion, 111 F. Supp.2d at 308-09, 313 (noting the number of Web sites offering DeCSS for download had grown to nearly 500 by July 2000). 96. DVD Copy Control Association v. Bunner, 93 Cal. App. 4th 648, 656 (6th App. Dist., Santa Clara County, 2002), "depublished" after the California Supreme Court agreed to review the case, 41 P.3d 2 (Cal. Feb. 20, 2002). 97. DVD Copy Control Association v. Bunner, 93 Cal. App. 4th at 665-66. The court indicated that the result might be different if suit were brought for copyright infringement, since "both the first Amendment and the constitutional authority underlying the Copyright Act are contained in the United States Constitution, and the resolution of a conflict between free speech and copyright involves a delicate balancing of two federal constitutional provisions." Id., 663. 98. Mike McKee, "‘Friends' in High Places," The Recorder, Aug. 29, 2002, www.law.com (accessed 9/3/02). 99. Mike McKee, "California Justices to Decide Clash of Trade Secrets, Free Speech," The Recorder, Feb. 22, 2002, www.law.com (accessed 2/23/02). The California Supreme Court will hear the case sometime in 2003. 100. ACLU FAQ on Edelman v. N2H2, Inc., www.aclu.org/issues/cyber/Edelman_FAQ.html 101. Seth Finkelstein, "SmartFilter - I've Got a Little List," Dec. 7, 2000, sethf.com/anticensorware/smartfilter/gotalist.php (accessed 12/2/02). 102. Defendant N2H2, Inc.'s Memorandum of Law in Support of Its Motion to Dismiss the Complaint, Edelman v. N2H2, Inc., No. 02-11503-RGS (D. Mass. Sept. 27, 2002), 10. 103. There is extensive documentation of Internet filters' sweeping censorship of valuable content; see, e.g., David Sobel, ed., Filters and Freedom (Washington, DC: EPIC, 2001); Free Expression Policy Project, Internet Filters: A Public Policy Report (2001), www.fepproject.org/policyreports/filteringreport.html (accessed 11/11/02). 103a. Memorandum and Order on Defendant's Motion to Dismiss, Edelman v. N2H2, Inc., No. 02-CV-11503-RGS (D. Mass. April 7, 2003). 104. Universal City Studios v. Corley, 273 F.3d 429, 458 (2nd Cir. 2001). 105. Petition for En Banc Review, Universal City Studios v. Corley, No. 00-9185 (2nd Cir. Jan. 14, 2002). 106. For a summary of the DMCA's chill on academic research, see EFF's Unintended Consequences: Three Years Under the DMCA (May 3, 2002), http://www.eff.org/IP/DMCA/20020503_dmca_consequences.pdf (accessed 12/11/02). 107. Edward Rothstein, "Swashbuckling Anarchists Try to Take the © Out of Cyberspace," New York Times, June 10, 2000, B4. 108. Professor Michael Madison, in Symposium Beyond Napster: Debating the Future of Copyright on the Internet: Panel One: The Road to Napster: Internet Technology and Digital Content, Nov. 16, 2000, published in 50 American U. Law Review 363 (2000); see also John Borland, "Hollywood Chases Down Campus Sites," CNET News.com, Oct. 10, 2002, www.news.com.com/2100-1023-961637.html (accessed 10/23/02) (noting that the rapper Dr. Dre sued several universities as well). 109. See A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001). On the popularity of Napster at its peak, see Neil Strauss, "Record Labels' Answer to Napster Still Has Artists Feeling Bypassed," New York Times, Feb. 18, 2002, A1. 110. 17 U.S. Code §1008 prohibits suits for copyright infringement based on the manufacture or distribution of a digital or analog audio recording device, or the noncommercial use of such a device to make musical recordings. 111. A&M Records v. Napster, 239 F.3d at 1021-23. 112. A&M Records v. Napster, 284 F.3d 1091 (9th Cir. 2002); Brenda Sandburg, "Napster Sings the Blues, Agrees to $26 Million Settlement," The Recorder, Sept. 25, 2001, www.law.com (accessed 9/25/02). 113. Quoted in Brad King, "Copyright or Copy Wrong?," Wired News, Feb. 16, 2001, www.wired.com/news/print/0,1294,41845,00.html (accessed 2/15/02). 114. "Fighting Back," Economist.com, Nov. 14, 2002, www.economist.com/agenda/displayStory.cfm?story_id=1446431 (accessed 11/17/02). 115. Memorandum of Defendants Streamcast Networks, Inc. (Formerly Known as MusicCity.Com) ... in Support of Motion for Partial Summary Judgment, in Metro-Goldwyn Mayer Studios, et al. v. Grokster, et al., No. 01-08541 SVW (PJWx) (C.D. Cal.), Jan. 22, 2002, 11. MusicCity also argued that noncommercial uses of Morpheus by individual consumers to burn CDs are lawful under the Audio Home Recording Act of 1992 (see n. 110), which creates a mechanism for musicians "and other stakeholders" to receive royalties for this type of copying. Id., 13 n. 6. The Court of Appeals in Napster rejected a similar argument. 116. "Court Sets Jury trial in Morpheus Peer-to-Peer Software Case," Electronic Frontier Foundation Press Release, Mar. 4, 2002, www.eff.org/IP/P2P/MGM_v_Grokster/20020304_eff_pr.html (accessed 11/11/02). 117. "Dutch Court Clears Web Music Swapping," CNN.com, Mar. 28, 2002, www.cnn.com/2002/TECH/internet/02/28/entertainment.reut/index.html (accessed 4/8/02); Matt Richtel, "Music Services Aren't Napster, But the Industry Still Cries Foul," New York Times, Apr. 17, 2002, C1. 118. Amy Harmon, "Music Industry in Global Fight on Web Copies," New York Times, Oct. 7, 2002, A1. 119. Richard Barbrook, "How the Music Industry Blew It," Salon.com, Nov. 30, 2001, salon.com/tech/books/2001/11/30/sonic_boom/index.html (accessed 12/9/01), reviewing John Alderman, Sonic Boom: Napster, MP3, and the New Pioneers of Music (Cambridge, MA: Perseus, 2001). 119a. Order Granting Defendants' Motions for Summary Judgment, Metro-Goldwyn-Mayer Studios v. Grokster, CV 01-08541-SVW, CV 01-09923-SVW (C.D. Cal. Apr. 25, 2003). The court made clear that the decision does not apply to KaZaA, which was taken over by Sharman Networks, and did not join in the motion for summary judgment. 120. Letter to College and University Presidents from Marc Rotenberg, EPIC's executive director, and others, Nov. 6, 2002, www.epic.org/privacy/student/p2letter.html (accessed 11/7/02). The letter added that the DMCA already requires universities to remove infringing content from their Web servers, and recommended that they "not adopt privacy-invasive technologies or policies that impinge upon academic freedom and privacy" in order to address the industry's legitimate concerns. "Network monitoring for bandwidth management is appropriate, but monitoring of individuals' activities does not comport with higher education values." 121. Vincent Kiernan, "High Education Organizations Urge a Crackdown on Illegal File Sharing," Chronicle of Higher Education, Oct. 25, 2002, A37. Most universities have been wary of wholesale police operations, but in November 2002 the U.S. Naval Academy seized 100 computers from students suspected of downloading music online. Amy Harmon, "100 Computers of U.S. Midshipmen Seized," New York Times, Nov. 26, 2002, C1. 122. Neil Strauss, "Record Labels' Answer to Napster Still Has Artists Feeling Bypassed," New York Times, Feb. 18, 2002, p. A1; Amy Harmon, "Copyright Hurdles Confront Selling of Music on the Internet," New York Times, Sept. 23, 2002, p. C1; see also John Alderman, Sonic Boom: Napster, MP3, and the New Pioneers of Music (Cambridge, MA: Perseus, , 2001), a "cautionary tale," according to one reviewer, "of a rich and powerful industry that was determined not to get it – and how it suffered the consequences of this mistake." Richard Barbrook, "How the Music Industry Blew It," Salon.com, Nov. 30, 2001, salon.com/tech/books/2001/11/30/sonic_boom/index.html (accessed 12/9/01). By late 2002, the industry had ironed out some of these problems, but most online music fans still preferred the free software. "Fighting Back," Economist.com, Nov. 14, 2002, www.economist.com/agenda/displayStory.cfm?story_id=1446431 (accessed 11/17/02). 123. Negativland, "Two Relationships to a Cultural Public Domain," Duke University Conference on the Public Domain, Nov. 9-11, 2002, http://www.law.duke.edu/pd/papers/hoslerjoy.pdf (accessed 11/8/02). Another commentator noted that the purchase price of software and other commonly pirated material already takes the cost of illegal copying into account. Charles Mann, "Who Will Own Your Next Good Idea?" Atlantic Monthly, Sept. 1998, www.theatlantic.com/issues/98sep/copy.htm (accessed 2/8/02). 124. John Alderman, Sonic Boom: Napster, MP3, and the New Pioneers of Music (Cambridge, MA: Perseus, , 2001), 108. 125. Bob Sullivan, "Napster or Not, File Swaps Continue," MSNBC News, Oct. 14, 2002, www.msnbc.com/news/820292.asp?0si= (accessed 10/23/02) (reporting on survey indicating 25% of file-sharers buy more); Matt Richtel, "Access to Free Online Music is Seen as a Boost to Sales," New York Times, May 6, 2002, 66 (reporting on survey indicating 47% increased their spending); see also Dan Bricklin, "The Recording Industry is Trying to Kill the Goose That Lays the Golden Eggs," www.bricklin.com/recordsales.htm (accessed 9/29/02) (only 13% of music buyers say downloading from the Web decreases their music purchases, while "39% say exposure to new music online increases their CD buys"). 126. Lynette Holloway, "Arrests Illustrate a Growing Concern Over Bootlegged Recordings," New York Times, Dec. 2, 2002, C10. 127. See Richard Barbrook, "How the Music Industry Blew It," Salon.com, Nov. 30, 2001, sal.com/tech/books/2001/11/30/sonic_boom/index.html (accessed 12/9/01), reviewing John Alderman, Sonic Boom: Napster, MP3, and the New Pioneers of Music (Cambridge, MA: Perseus, 2001). For a more radical analysis, which predicts the demise of the huge media companies that supply about 90% of the world's popular music, and the development of other business models for supporting musical artists, see Eben Moglen, "Liberation Musicology," The Nation, Mar. 12, 2001, 5. 128. John Borland, "New Kazaa Likely to Raise Labels' Ire," CNET News.com, Sept. 22, 2002, news.com.com/2100-1023-958912.html?tag+fd_ots (accessed 9/29/02); Neil Straus, "Online Fans Start to Pay the Piper," New York Times, Sept. 25, 2002, E1, E7. 129. Amy Harmon, "Record Labels Try to Force Internet Servers to Block Music Site," New York Times, Aug. 17, 2002, C4. The suit was dismissed after the companies said the site had gone offline. Notice of Voluntary Dismissal, Arista Records, Inc., et al. v. AT&T Broadband Corp., et al., No. 02 CV 6554 (S.D.N.Y. Aug. 21, 2002). One search engine, MP3Board.com, filed suit against a number of companies after they sent threatening letters to ISPs that resulted in forcing the search engine to shut down several times. Tamara Loomis, "Suit Against Music Search Engine Proceeds," New York Law Journal, Aug. 30, 2002, www.law.com/jsp/article.jsp?id=1030343777119 (accessed 9/3/02). 130. 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). 131. 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). 132. Chris Nelson, "Epic Records Takes Steps to Seal Its Newest Music," New York Times, Sept. 16, 2002, C7, quoting Bart Blasengame of Details magazine. 133. A revised version of the original bill is S. 2048, the "Consumer Broadband and Digital Television Promotion Act," 107th Congress, 2nd Session (Mar. 21, 2002). 134. EFF Letter to the Senate Commerce Committee, Nov. 5, 2001, www.eff.org/IP/DMCA/20011105_eff_sssca_letter.html (accessed 6/24/02); "What is the CBDTPA?," StopPoliceware.org, www.stoppoliceware.org (accessed 11/3/02). 135. Pamela Samuelson, comments at Cardozo Law School conference, "Creation, Control, and Censorship," Apr. 15, 2002 (Marjorie Heins notes). 136. Steve Lohr, "Champion of Open Source is Out at Hewlett-Packard," New York Times, Sept. 9, 2002, C4 (noting that 25 countries, including Germany, Britain, China, Peru, and Brazil, have shown interest in open-source software; some "would require the use of open-source software in government," though most were simply "efforts to ensure that there is an alternative to Microsoft in their critical software markets"). 137. Steve Lohr, "Champion of Open Source is Out at Hewlett-Packard," New York Times, Sept. 9, 2002, C4. 138. Lawrence Fisher, "Nonprofit to Create Open Source Software," New York Times, Oct. 28, 2002, C3. 139. Amy Harmon, "A New Direction for Intellectual Property," New York Times, May 14, 2002, C4. See also www.creativecommons.org (accessed 11/11/02). For Lessig's full argument on open source and Internet freedom, see Lawrence Lessig, The Future of Ideas (New York: Random House, 2001). 140. Budapest Open Access Initiative (Feb. 14, 2002), www.soros.org/openaccess/read.shtml (accessed 12/1/02). 141. "Chilling Effects Clearinghouse," www.chillingeffects.org (accessed 10/16/02); Jonas Blank, "Weather Report," Harvard Law Bulletin, fall 2002, 9-10. Participating universities are Harvard, Stanford, the University of San Francisco, the University of Maine, and the University of California at Berkeley. 142. E-mail from Wendy Seltzer, Dec. 4, 2002. 143. "Projects - Reinventing the Public Domain," www.publicknowledge.org/projects/reinventing.html (accessed 2/24/02). 144. Rick Boucher, "Time to Rewrite the DMCA," CNET News.com, Jan. 29, 2002, news.com.com/2010-1078-825335.html (accessed 2/15/02). 145. "Digital Media Consumers' Rights Act of 2002," 107th Congress, 2nd Session, Oct. 2, 2002; see Declan McCullagh, "Congress Asked to Unpick Copy Lock Laws," CNET News.com, Oct. 3, 2002, news.com.com/2100-1023-960731.html (accessed 11/25/02) (noting that Intel, Verizon, and other companies, along with nonprofits like the American Library Association and the Consumers Union, expressed support for Boucher's bill). Another bill, filed by Representative Zoe Lofgren of California, would "restore the traditional balance between copyright holders and society" by allowing circumvention for fair-use purposes -- unless the copyright owner makes tools available to do this without additional cost. Lofgren's bill would also allow the manufacture and distribution of circumvention tools that are "necessary to enable a non-infringing use." "Digital Choice and Freedom Act of 2002," 107th Congress, 2nd Session, www.house.gov/lofgren/press/107press/021002_act.htm (accessed 11/25/02). 146. Harper & Row Publishers, Inc.
v. Nation Enterprises, 471 U.S. 539, 558 (1985). 147. David Nimmer, "A Riff on Fair
Use in the Digital Millennium Copyright Act," 148 U. Pa. Law Review
673, 707 (2000). Some of these ideas are adopted in the Boucher and Lofgren
bills; see n. 145. 148. Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), 254-55. 149. International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, dissenting). See Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," 74 N.Y.U. Law Review 354, 354 (1999). 150. These reforms have been proposed by Representatives Rick Boucher, John Dolittle, and Zoe Lofgren; see n. 145. 151. The Corley defendants argued for this narrow interpretation; see Universal City Studios v. Reimerdes, 111 F. Supp. at 317 n. 135. Thanks to Seth Finkelstein for pointing this out. 152. This is the policy reflected in the 1996 Communications Decency Act, 47 U.S.C. §230(c)(1), which states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 153. See Robert Kunstadt, "Fair Use Should Not Die," National Law Journal, Nov. 11, 2002, A16 (suggesting this as one remedy to the industry's practice of encrypting both new introductory material and public domain material). |
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Move toward restoring
the "limited time"/public domain balance by returning to the
copyright terms of the 1976 Act: life plus 50 years for individuals; 75
years for corporations. Require that heirs file a notice of renewal, thereby
allowing works that no longer have commercial value to enter the public
domain sooner. Require corporate copyright holders to file a notice of
renewal after 40 years of their 75-year terms.