The Progress of Science and Useful Arts”: Why Copyright Today Threatens Intellectual Freedom

“The Progress of Science and Useful Arts”: Why Copyright Today Threatens Intellectual Freedom A Public Policy Report Free Expression Policy Project a think tank on artistic and intellectual freedom 275 Seventh Avenue, 9th Floor New York, NY 10001 www.fepproject.org Why Copyright Today Threatens Intellectual Freedom1 “The Progress of Science and Useful Arts”: Why Copyright Today Threatens Intellectual Freedom. Second edition, revised and updated, © 2003. Also available online at http:// www.fepproject.org. 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. The report may not be reproduced in part or in altered form, or if a fee is charged for access, without our permission. Please let us know if you reprint. All reprints should have the following preface: Reprinted from the Free Expression Policy Project, a think tank on artistic and intellectual freedom, www.fepproject.org. THE FREE EXPRESSION POLICY PROJECT 275 Seventh Ave., 9th floor New York, NY 10001 Phone: 212-807-6222 x 12, x 17 Fax: 212-807-6245www.fepproject.org Marjorie Heins, Director Stephanie Elizondo Griest, Communications Director Nancy Kranich, Senior Research Fellow Author of the Report: Marjorie Heins Design: Stephanie Elizondo Griest Grateful thanks to Cindy Cohn, Seth Finkelstein, Chris Hansen, Benjamin Kaplan, Judith Krug, Lawrence Lessig, Paul DiMaggio, Wendy Seltzer, David Sobel, Peter Tsapatsaris, Siva Vaidhyanathan, and Julie Van Camp for helpful feedback on the first edition of this report. Thanks to Blossom Lefcourt for research assistance. 2 “The Progress of Science and Useful Arts” “The Progress of Science and Useful Arts”: Why Copyright Today Threatens Intellectual Freedom A Public Policy Report Free Expression Policy Project 275 Seventh Avenue, 9th Floor New York, NY 10001 www.fepproject.org Why Copyright Today Threatens Intellectual Freedom3 Table of Contents EXECUTIVE SUMMARY ........................................................................................2 INTRODUCTION: THE “DIFFICULT BALANCE” BETWEEN COPYRIGHT AND FREE EXPRESSION ..................................................................................4 I. FOUR FREE-EXPRESSION “SAFETY VALVES”......................................................8 The “Idea/Expression Dichotomy”............................................................8 Fair Use.....................................................................................................8 The “First Sale” Rule ..............................................................................11 The All-Important Public Domain...........................................................12 II. FREEZING THE PUBLIC DOMAIN: THE BATTLE OVER THE SONNY BONO LAW...15 The Politics of Copyright Extension ......................................................15 Defending the Public Domain: Eldred v. Ashcroft .................................15 Eldred in the Supreme Court ...................................................................17 The Difficult Balance Revisited: What is a “Limited Term”? ................23 III. THE INS AND OUTS OF CIRCUMVENTION: THE DIGITAL MILLENNIUM COPYRIGHT ACT.........................................................................................24 Locking Up Expression and Shrinking Fair Use ...................................24 Effects of the DMCA ..............................................................................25 Cases Involving Scholarship..............................................................25 The Irrepressible “DeCSS” Code.......................................................27 Squelching Competition ....................................................................32 Researching Internet Filters...............................................................33 The Circumvention Dilemma.................................................................. 34 4 “The Progress of Science and Useful Arts” IV. FILE SHARING, FREE EXCHANGE, AND THE ONLINE COMMONS..................35 Napster and Its Successors................................................................35 Universities, New Lawsuits, and Corporate Sabotage......................37 Solutions: Restoring the Copyright/Free Expression Balance...........41 CONCLUSION ..............................................................................................46 RECOMMENDATIONS ....................................................................................47 ENDNOTES .................................................................................................48 INDEX .......................................................................................................61 Why Copyright Today Threatens Intellectual Freedom1 Executive Summary opyright – our system for protecting interest in accessing, sharing, and trans- C and encouraging creativity – has forming imaginative works. been described as “the engine of free expression.”1 But copyright can also inter- One of these laws, the “Sonny Bono fere with free speech – with the public’s Copyright Term Extension Act,” extended right to share, enjoy, criticize, parody, and the term of copyright protection to nearly a build on the works of others. Resolving century for corporations and even longer these sometimes conflicting claims re- for many individuals and their heirs. It quires policymakers, in the words of the consequently delayed the time when Supreme Court, to strike a “difficult cultural products will enter the public balance” between rewarding creativity domain and be freely available. The other through the copyright system and law, the “Digital Millennium Copyright Act” “society’s competing interest in the free (DMCA) made it a crime to distribute flow of ideas, information, and com- technology that circumvents the industry’s merce.”2 electronic locks on books, films, articles, software, or songs – even though circum- A critical component of this “difficult vention itself is not always illegal, and even balance” is the system of free-expression though a ban on technology strikes directly “safety valves” within copyright law. Four at scientific research. of these safety valves – the “idea/expression dichotomy,” the concept of fair use, Meanwhile, battles over online “file the so-called first-sale rule, and the public sharing” of music, movies, books, and domain – provide necessary breathing software have created a crisis in the space for free trade in information and entertainment industry, alienated many ideas. The free-expression safety valves fans, and failed to resolve the question of keep the system in balance and prevent how much sharing should be allowed or the monopoly control created by copyright whether all of it should be stringently law from becoming rigid and repressive. prosecuted as a violation of copyright law. But the “difficult balance” has become The courts have not always been equal lopsided in recent years. With the advent to the task of resolving these copyright of electronic communications, and in conflicts. A constitutional challenge to the particular the Internet, the media compa- Sonny Bono law was rejected by the nies that make up the “copyright industry” Supreme Court in 2003. The Court’s have adopted techniques of “digital rights decision ignored the law’s adverse effects management,” which control the accessing on culture, and seemed to suggest that and use of creative materials in ways that Congress, by continually extending the term are often inconsistent with a free and of copyright, can freeze the public domain democratic copyright system. Two federal indefinitely. But in the process of fighting laws, both passed in 1998, have further this well-publicized case, many defenders distorted the system by favoring the of the public interest – archivists, libraries, industry at the expense of the public’s and scholars among them – began to organize and advocate for changes in the 2 “The Progress of Science and Useful Arts” copyright system that could help bring replaced Napster, and the industry has not valuable if long-forgotten works into the so far persuaded the courts that these public domain. digital copying and sharing technologies are themselves “contributory” infringers of There have already been many lawsuits copyright. But the war against file-sharing involving the DMCA. In one early case, the has only intensified. In late 2003, the federal government criminally prosecuted a industry sued more than 200 individuals, company that created a device to decrypt including teenagers, for sharing music electronic books. Although a judge rejected online. the company’s defense – that its circumvention device had legitimate (indeed, Public interest groups, scholars, librar- constitutionally protected) uses that would ians, artists, computer scientists, and others not infringe the copyrights on e-books – a in the growing “copyleft” movement are jury eventually acquitted the company. But responding to the copyright crisis with in another case, online journalists who projects that encourage the sharing of distributed “DeCSS,” a program for information and creative works. Some decrypting DVDs, were found to have promote and distribute free software. violated the DMCA even though the Others are advocating for a more flexible program could be used in ways that would system that would allow material lacking in not infringe copyright. The courts even current commercial value to enter the ordered the defendants

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