Generation, Yes? Digital Rights Management and Licensing, from the Advent of the Web to the Ipad

Generation, Yes? Digital Rights Management and Licensing, from the Advent of the Web to the iPad by Reuven Ashtar A thesis submitted in conformity with the requirements for the degree of Masters of Law Graduate Department of Law University of Toronto © Copyright by Reuven Ashtar (2010) ―Generation, Yes? Digital Rights Management and Licensing, from the Advent of the Web to the iPad.‖ A thesis submitted by Reuven Ashtar in conformity with the requirements for the degree of Masters of Law, Graduate Department of Law, University of Toronto, November 2010. ABTRACT The Article discusses digital-era courts‘ distortion of (para)copyright principles, deeming it borne of jumbled underlying legislation and a misplaced predilection for adopting licensing terms—even at the expense of recognized use exceptions. Common law evolutionary principles, it is shown, have been abandoned just when they are most needed: the ethereal rightsholder-user balance is increasingly disturbed, and the incipient ―generative consumer‖ is in thrall, not liberated. Finally, the Article puts forth a proposal for the reestablishment of the principle of substantially noninfringing use, showing it to be in the interests of innovation, democracy, and the greater public interest. ii TABLE OF CONTENTS I. INTRODUCTION………………………………………………………………………1 II. SECURING PEACE FOR THE INDUSTRIES…………………………………….…3 A. The Walled Garden: “Paradise” Found B. Inventing, then Sharing, the World Wide Web C. Man Makes the Clothes? Jefferson, Clinton & the White Paper D. Brokering the DMCA—Negotiation, Hollywood-Style E. A Witches’ Brew F. DRM and the Nature of Control III. DMCA JURISPRUDENCE………………………………………………………….31 A. Sony, Innovation & Vigorous Commerce B. Early DMCA Jurisprudence: Drawing Lines in the Sand C. Middle Period: Foreseeing Monopolies D. Later Jurisprudence: Licenses Reign Supreme IV. LICENSING GENERATIVITY……………………………………………………..56 A. The Court’s Historical Approach to Intellectual Property Licensing B. iPad DRM 1. iPad Licensing 2. iPad Generativity C. Accommodating the Generative Consumer 1. Recognizing Generativity 2. Blips in the Night? V. CONCLUSION……………………………………………………………………….87 * The author thanks Abraham Drassinower for his guidance and wisdom iii 1 I. INTRODUCTION TO THE READER PRAY thee, take care, that tak'st my book in hand, To read it well—that is, to understand. 1 - Ben Johnson This machine is manufactured by us…and is licensed for use only for the term of the patent…and only with sound records, sound boxes and needles manufactured by us; and our records and sound boxes are licensed only for use with our machines.….Title shall remain in [us]; also the right to repossess the said patented goods upon the breach of any of the conditions …[and the right] to inspect, adjust and repair this machine …. Any excess use, or violation of the conditions, will be an infringement of the said patents. 2 -Victor Talking Machine Company [Y[ou are granted a limited non-exclusive license to use the iPad Software on a single Apple- branded iPad.... [but no] rights to use Apple proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with the iPad. … You may not and you agree not to, or to enable others to, copy… decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the iPad Software or any services provided by the iPad Software, or any part thereof…. 3 -Apple Inc. 1 Ben Johnson, THE WORKS OF BEN JONSON (Phillips, Sampson 1853), 785. 2 Victrola XVI license, 1913. 3 iPAD SOFTWARE LICENSE AGREEMENT, Single Use License at 2(a)-(c), 2010. 2 The Digital Millennium Copyright Act‘s (DMCA‘s) anticircumvention provision has been in effect for less than a decade,4 but its design and jurisprudence have been fraught with contradiction from the get-go. Rightsholders have combined technical protection measures with expansive licenses to construct an ―über-copyright law,‖5 in contravention of legislative history and centuries of precedent. The phenomenon, I contend, is particularly deleterious in light of the coincident emergence of the ―generative consumer,‖ whose non-infringing uses should be encouraged, not hindered, under digital copyright law. I open the Article, in Part II, by scrutinizing the DMCA‘s legislative history, showing that the anticircumvention provision was meant to permit a range of traditional uses. Yet Congress‘s built-in exemptions were rendered toothless due to the law‘s flawed design and its drafters‘ failure to anticipate interoperability-limiting behaviour by rightsholders. Then, in Part III, I sketch out the arc of DMCA case law, demonstrating that pre-digital common law, which capably addressed potentially-infringing technology, has unjustifiably been overridden. Courts‘ predilection to allow the four corners of ―licensing‖ agreements to supersede rights and exceptions is shown to be particularly problematic. Part IV looks at a century‘s worth of licensing precedent and finds historical opposition to rightsholder attempts to supersede intellectual property doctrine through contract— particularly when license-ownership and copyright-patent boundaries are blurred to their advantage. Since devices like the iPad distort such distinctions so drastically, I argue, it is 4 17 U.S.C. §§ 512, 1201–1205. Passed on October 12, 1998, the DMCA became effective on November 29, 1999; the anti-circumvention provision (Section 1201) came into effect on October 28, 2000. 5 See Jane Ginsburg From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, 50 J. COPYR. SOC. 113, 129 (2003) [Ginsburg]. 3 increasingly vital not to let related contractual schemes become public law. This is particularly true in light of the advent of a class of generative consumers that needs interoperability and control more than ever. I conclude by introducing a pair of remarkable recent declarations, by the Librarian of Congress and the Fifth Circuit, which not only sanction non-copyright infringing uses, but also question the entire DMCA rightsholder schema. While it is too early to declare a circumvention law sea change, I contend, the time has come to clarify the range of permitted digital uses. II. SECURING PEACE FOR THE INDUSTRIES A. The Walled Garden: “Paradise” Found Less than ten inches of rain fell on Persia yearly, its hot arid plains inhibiting urban development. Then, in the 7th century BCE, Qanats—subterranean conduits coupled with vertical shafts—were invented.6 Since they required limited investment and no energy source but gravity, an extensive network bringing melting mountain snow inland was quickly established,7 and the Achaemenid Empire flourished.8 Qanats provided the vast majority of Iran‘s water supply well into the twentieth century, including all of Teheran‘s.9 6 Paul Ward English, 112:3, The Origin and Spread of Qanats in the Old World, PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY, 170, 170 (1968) (describing how the vertical shafts bring air in and allow for tunnel spoil to be unloaded during excavation). 7 Patrick Taylor, THE OXFORD COMPANION TO THE GARDEN 328 (Oxford 2006) (noting that qanats may transfer water from various sources, including wells.) 8 Amélie Kuhrt, THE PERSIAN EMPIRE, 1 (Routledge 2007) (establishing that by stretching into modern-day Europe, Africa, and Asia, the Achaemenid, or Persian, Empire (559-330 BCE) became the ―earliest and largest of the known ‗world empires‘‖); H.E. Wulff, Qanats of Iran, 218:4 SCIENTIFIC AMERICAN, 94-100. 9 Homayoun Motieea et al., Assessment of the Contributions of Traditional Qanats in Sustainable Water Resources Management. 22:4 INTERNATIONAL JOURNAL OF WATER RESOURCES DEVELOPMENT, 575 – 588 (2006) (explaining that qanats are still used in Iran and at least thirty-four countries). 4 In Oeconomicus, one of the earliest known works of economics, Xenophon praises the invention through a flowery story; retold in the digital context, it may serve as an introduction to the age-old balance between protection and innovation. Set in Cyrus the Younger‘s wonderful qanat-watered garden, the anecdote details a 401 BCE visit by Lysander, a Spartan military envoy. In stark contrast to the land outside, the walled garden was shady, lush, and filled with exotic animals and vegetation. Game was bred and hunted, and plants were grown and widely exported: pistachios to Aleppo, sesame to Egypt, rice to Mesopotamia, alphalpha to Greece, and red rose attar to China.10 Xenephon dubbed the garden paradeisos –a term later used for the Garden of Eden in Greek translations of the Bible—translating the Persian pairidaeza (―pairi‖ meaning around and ―daeza‖ meaning wall).11 Such gardens exemplified the Achaemenid rulers‘ role in expanding irrigation, promoting fertility, and dispensing justice.12 Lysander was struck by ―the beauty of [the prince‘s] chains and armlets‖, and, astonished to hear that the prince both designed the vegetation and planted it with his own hands, embraced and declared him ―justly prosperous‖.13 Oeconomicus was written for an Athenian audience recovering from the Peloponnesian War, and intended to affect public policy by highlighting the role of innovation in agriculture and wealth generation. The conflict with Sparta had caused massive agrarian problems, as supplies of 10 Taylor, 328; Penelope Hobhouse, et al., GARDENS OF PERSIA (Kales Press 2004), 51. 11 Ibid., 8. 12 Michel

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