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/expres- sion 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 circum- vention 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 to remove links on public domain sooner. their Web site to other sites that contained the DeCSS code. Conflicts between “strong” copyright control and free expression today thus To fight online file-sharing, the music occupy center stage in the public policy industry went to court to shut down arena. The diversity and vitality of our Napster. New, less centralized systems like culture depends on resolving these con- Grokster and KaZaA, however, quickly flicts in a way that maximizes artistic and intellectual freedom.
Why Copyright Today Threatens Intellectual Freedom3 Introduction: The “Difficult Balance” Between Copyright and Free Expression
hen we think of creativity and free It is a mistake, however, to think that the W expression, it is the First Amend- monopoly control bestowed by copyright is ment that usually comes to mind. But there absolute. From the beginning, copyright law is another section of the Constitution was intended to balance the rights of whose explicit purpose is “to promote the owners against those of the public – to give progress of science and useful arts.” This just enough incentive to enhance creativity. is the Copyright Clause, and it authorizes When the English Parliament passed the Congress to grant “for limited times to first modern copyright law, the Statute of authors and inventors the exclusive Anne, in 1710, it did so in part to stop right to their respective writings and publishing monopolies “from oppressing discoveries.”3 The theory is that creative authors, potential competitors, and the people need the promise of financial public.”5 The first American copyright law, reward to motivate them to produce art, in 1790, covered only books, maps, and music, literature, scholarship, and scientific charts, and granted monopoly control for a innovation. mere 14 years (renewable for another 14).6 The Copyright Clause itself specifies only Copyright owners these days, of “limited times” for monopoly control of course, are not necessarily impecunious creative works, after which they enter the writers, artists, or philosophers chewing at public domain – that is, they become freely their tattered overcoats. Corporations own available for anyone to publish, sell, copy, or many copyrights, and trade groups are preserve. aggressive in asserting the “exclusive right” to control and profit by copyrighted Even during the “limited time” of works. copyright protection, the “exclusive right” is not perfect or absolute.7 Not every copying In the 1970s, for example, the Ameri- of copyrighted material, nor every song can Society of Composers, Authors, and sung at a beach party or birthday bash, is Publishers (ASCAP) tried to stop grocery unlawful unless the copyright owner is stores from playing radios unless they paid found and gives permission. In part, this fees for the songs that were aired. Twenty flexibility simply reflects a recognition of years later, ASCAP demanded fees from practical realities. But it is also a vital summer camps for songs the children sang element of the “difficult balance” between around their campfires. The Walt Disney open accesss and copyright control. Free- Company threatened daycare centers that expression safety valves within the copy- had likenesses of Mickey Mouse painted right system, such as allowing the public to on their walls.4 From attempts to stop the make “fair use” of copyrighted works, thus technology of “piano rolls” in 1908 to the provide essential lubrication for copyright’s 1998 Digital Millennium Copyright Act, “engine of free expression.” restricting access to copyrighted works today, media companies have pushed for Aggressive assertions of copyright stronger controls. control over the last quarter century have
4 “The Progress of Science and Useful Arts” often ignored this necessary play in the lectual property (“IP”) to describe copy- joints. In the early 1980s, for example, rights, trademarks, patents, and “trade entertainment companies sued the Sony secrets.” Viewing creative works as Corporation to stop distribution of the property, however, leads to the presumption Betamax, an early version of the VCR, that they can and should be owned and because it could be used to make unautho- controlled forever. But as we have seen, rized copies of TV shows. The suit was this is not what the Copyright Clause of the particularly shortsighted, given that rental Constitution envisions, nor is it consistent and sale of films on video would soon with a free society. become extremely lucrative for the indus- try. But in any event, the Supreme Court As the scholar and activist Lawrence rejected the suit, ruling that a technology Lessig writes, products of imagination and cannot be banned just because it might be intellect are “nonrivalrous” – that is, they used for nefarious ends, if it is also “ca- are inexhaustible. A book can be read, read pable of commercially significant non- again, and given away for others to read. infringing uses.” Its value is not used up. Unlike “rivalrous” resources, works of the imagination do not Home recording of TV programs for need a system of control to assure that purposes of time-shifting was such a “non- they are not depleted; they only need a infringing use,” said the Court. Even though system that encourages their creation, and it involves copying entire programs, time- fairly rewards their creators.10 shifting qualifies as “fair use” under copyright law. Indeed, the Court noted that Another leading thinker, Siva Vaid- among those who favored time-shifting hyanathan, puts “intellectual property talk” was Fred Rogers of Mr. Rogers’ Neigh- at the root of today’s conflicts over anti- borhood, who testified at the Sony trial circumvention technology, extensions of the that “he had absolutely no objection to “limited time” of copyright, and other home taping for noncommercial use,” and efforts by the industry to expand its control. that “it is a real service to families to be Vaidhyanathan notes that the term “intel- able to record children’s programs and to lectual property” is show them at appropriate times.”8 “fairly young,” having originated The Walt Disney Major corporations have continued to with the UN’s Company push for restrictions, however. In recent World Intellectual threatened years, the company that owns the Priceline Property Organiza- Web site has claimed that its method of tion (WIPO) in daycare centers selling airline tickets is protected by patent 1967. Soon after- that had like- law – a close relative of copyright – and ward, major nesses of Mickey may not be copied. Netflix.com obtained a American organiza- patent on the way that its Web site rents tions that concern Mouse painted on DVD movies. And IBM “patented a themselves with their walls. method for keeping track of people waiting copyright, patent, in line for the bathroom.”9 and trademark law “changed their names to incorporate ‘intellectual property.’” These zealous assertions of ownership Thus, “over the past thirty years, the are driven in part by the concept of intel- phrase ‘intellectual property’ has entered
Why Copyright Today Threatens Intellectual Freedom5 common usage with some dangerous scholars’ sharing of favorite songs or news consequences.” For copyright articles through a university network. In between are difficult questions about wide- was not meant to be a “property spread, not-for-profit music and movie- right”as the public generally sharing. Although copying on this level is understands property. It was generally assumed to be unlawful, it is not originally a narrow federal clear that the remedy is to make criminals policy that granted a limited of millions of Americans. trade monopoly in exchange for universal use and access.11 If modern technology has made copying vastly simpler, and achievable on a world- This does not mean, of course, that wide scale that was never possible before, authors should receive no compensation or it has also enabled media companies to that media companies should not profit exercise unprecedented control over the from their use of their products through systems of Mr. Rogers investments. digital rights management, or “DRM.” testified that “he Few critics of DRM controls that are built into cultural the current materials frequently undermine the free- had absolutely no situation want expression safety valves that are so objection to home to eliminate fundamental a part of the copyright system. taping for non- copyright Electronic locks and other DRM technolo- protection. But gies now inhibit fair-use copying for commercial use.” xeroxing a purposes of study, criticism, or parody, the poem or ability to share a book or CD with a friend, dubbing a tape for a friend has not usually and even the availability of works that are been considered a law-enforcement already in the public domain.12 problem. Internet downloading and file- sharing are, conceptually at least, the As a result of DRM, some CDs now contemporary equivalents. That is, any come with locks to prevent them from 13 transmission of information online techni- being played or copied on computers. cally involves copying – even simply “Clickwrap” agreements – those online visiting a Web site, which requires repro- scrolls of legalese to which one must click duction of the site on your computer “yes” in order to reach the desired content screen. Not every such reproduction should – have become increasingly oppressive, be considered a violation of copyright law. and inconsistent with the flexibility of copyright law. Some Web sites include Understandably, copyright owners are lengthy agreements that flatly require concerned when cultural sharing is multi- viewers to relinquish their fair-use rights as plied from a few friends to millions around a condition of accessing the site.14 As many the globe. But the industry tends to lump observers have warned, we seem to be together all copying under the nefarious moving toward a “pay per view” society heading of “piracy,” when in fact there are where the information, inspiration, and substantial differences between large- ideas contained in creative works of all scale, for-profit enterprises that sell unau- kinds are becoming increasingly expensive thorized copies of music, software, or and difficult to obtain – just at the time, movies, and, for example, students’ or ironically, that the Internet offers the
6 “The Progress of Science and Useful Arts” promise of unprecedented global linkage gap by describing the challenges to art, and communication. scholarship, and free expression that are posed by copyright law in the digital age. It The tension continues to grow between explains the major issues and court cases in strong copyright control and the values of understandable terms. Obviously, it cannot free expression and access to information. cover all the details of “intellectual prop- Yet much of the debate is carried on erty” law and policy. We hope, though, that among a relatively small priesthood of it will provide a useful guide to the issues lawyers, advocates, and policymakers who and a sense of why they matter for artists, communicate in a largely unknown lan- scholars, and all who care about free guage. This report is intended to bridge the expression and access to ideas.
Tom Forsythe, “Food Chain Barbie”
Why Copyright Today Threatens Intellectual Freedom7 Chapter 1: Four Free-Expression “Safety Valves”
usually be considered a “derivative work,” The “Idea/Expression and therefore an infringement of copyright. Dichotomy” How to distinguish between the legitimate borrowing of ideas and the illegal creation The first free-expression safety valve in of a “derivative work” can be a tricky the copyright system is the idea/expression business. dichotomy. Copyright law protects the specific language, structure, images, or For example, in one case, a federal details of plot and character in a creative court found that software designed to help work (that is, their “expression”), but it dentists organize their offices violated the does not protect facts or ideas. As the law even though it did not copy anybody Supreme Court explained in a recent case else’s computer code, because its “struc- that involved the reproduction of informa- ture, sequence, and organization” were tion in a telephone directory, copyright “substantially similar” to an earlier soft- “rewards originality, not effort.” Thus, ware program. The nation’s leading treatise collecting and publishing facts (in that case, on copyright said that the court’s rationale names, addresses, and telephone numbers) in this case was wrongheaded, because does not possess even “the minimal “providing protection for such amorphous creative spark required by the Copyright concepts as the ‘overall structure’” of a Act and the Constitution.”15 software program undermines the idea/ expression dichotomy. 16 As for ideas, the law recognizes that authors and artists copy them all the time. But these same authors also thought The idea of star-crossed lovers whose that Stephen Sondheim and Leonard families object, and whose passion comes Bernstein’s borrowing of plot elements to a tragic end, would not be copyrightable from Romeo and Juliet for their classic even if Shakespeare had written his Broadway musical, West Side Story, would version of the story in 1994 instead of have violated Shakespeare’s copyright, had 1594. Of course, Shakespeare took the plot he owned one. They admitted that not all of not only Romeo and Juliet but most of courts would find the details of West Side his other masterpieces from existing Story to be “a sufficiently concrete expres- sources. The idea/expression dichotomy sion of an idea so as to warrant a finding of allows artists and writers to draw freely on substantial similarity.”17 But this example the themes, myths, and images that fill our illustrates how shifting and unpredictable culture. the idea/expression dichotomy can be.
Of course, drawing the line between Fair Use protected “expression” and unprotected facts or ideas is not always easy. Even Fair use is probably the best-known of without word-for-word copying or direct the free-expression safety valves. It allows paraphrasing, a work that bears “substan- anyone to copy, quote, and publish parts of tial similarity” to an earlier creation will
8 “The Progress of Science and Useful Arts” a copyrighted work for purposes of com- gress of arts and sciences and the robust mentary, criticism, news reports, scholar- public debate essential to an enlightened ship, caricature, or even, as we have seen, citizenry.”19 recording and time-shifting of television programs. Not only does fair use allow More recently, the writer Alice Randall culture to thrive; it also prevents publishers faced a fair-use battle when she borrowed and authors from suppressing criticism and characters and plot from Margaret parody of their works. Mitchell’s classic Gone With the Wind to produce The Wind Done Gone, a fictional- So, when the rap group Two Live ized critique of the earlier novel’s racist Crew borrowed the melody and parodied stereotypes. The Wind Done Gone the words of Roy Orbison’s pop song, “Oh! mentions homosexuality and interracial sex, Pretty Woman,” in a vulgar style that the both of which the Mitchell estate prohibits copyright holder did not appreciate, the in its policy for licensing “derivative Supreme Court indicated that it was works.” A trial judge was persuaded to ban probably fair use. Even though intended for the novel as an unauthorized sequel. A commercial sale, Two Live Crew’s raun- federal appeals court reversed, finding The chy version, with lines such as “big hairy Wind Done Gone to be a parody, and woman” and “two-timin’ woman,” served hence, fair use.20 the important cultural purpose of mocking the “white bread” original. And to be As these examples suggest, fair use is effective, said the Court, parodists must close to the heart of free expression. If quote enough of the copyrighted work to copyright owners could control – and conjure it up in listeners’ minds.18 effectively ban – every quotation or other use of their work, they would exercise a The Nation magazine had a less powerful form of censorship. An example fortunate experience in the 1980s after it of this phenomenon involved the Church of quoted about 300 words from ex-President Scientology, which holds the copyright to Gerald Ford’s about-to-be-published religious texts including New Era memoir without permission. The Nation’s Dianetics for Operating Thetans, or quote was part of a 2,200-word news “NOTs.” A critic of the Church posted the scoop highlighting Ford’s description of his NOTs online without permission, to demon- pardon of Richard Nixon (Ford’s predeces- strate what he believed was their criminal sor in the White House), for possible nature, but a federal appeals court rejected crimes during Nixon’s presidency. In his claim of fair use.21 reaction to The Nation’s scoop, Time magazine canceled its “first serial rights” to In a later case also involving religion, publish highlights from Ford’s book. the Worldwide Church of God was able to suppress a breakaway sect’s use of The Supreme Court, identifying with the prophetic texts by Herbert Armstrong, the publisher’s plight in losing this income from Church’s founder. The Church elders no first serial rights, rejected The Nation’s longer wanted the texts in circulation on claim of fair use. But three justices dis- account of “ecclesiastical errors.” The sented, arguing that the scoop served the breakaway group was thus unable to public interest, and accusing the Court distribute what it believed were important majority of a “constricted reading of the religious works. A federal court of appeals fair use doctrine” that ill-served the pro- upheld the copyright claim, over the dissent
Why Copyright Today Threatens Intellectual Freedom9 of one judge who did not think that copy- Warner Brothers has suppressed sites right law should be used to suppress containing irreverent sexual parodies of religious works, and who felt that the such Looney Tunes favorites as Bugs splinter group’s noncommercial and spiri- Bunny, Daffy Duck, and Tweety, claiming tual motivation entitled it to a finding of fair that these “beloved characters” should not use.22 be maligned by lascivious humor.24
So essential is the fair use concept to Corporations also try to suppress online free expres- “cybergriping” by acquiring Internet Two Live Crew’s sion that it domain names that contain the suffix has also made “sucks” – commonly used to signal a site parody of “Oh! its way into critical of corporate activities or products. Pretty Woman” trademark The World Intellectual Property served the law. In a case Organization’s online arbitration board has involving a allowed some sites to continue – for important cultural rock song that example, “wallmartcanadasucks.com” – purpose of made fun of but has transferred the domain names of mocking the the Mattel others, such as “guinness-beer-really- Company’s sucks.com,” to the complaining corporation, “white bread” fabulously which can then make sure that the name is original. successful never again used for a site offering parody Barbie Doll, a or criticism of its practices.25 federal court of appeals ruled that the song In one leading case involving the was a constitutionally protected parody. “sucks.com” phenomenon, a judge ruled The judges said that even if some consum- that a reasonable consumer or Web surfer ers might be confused and think the song interested in the Bally chain of fitness clubs was sponsored by Mattel (likelihood of would not be confused by a “Bally sucks” confusion being the basis of trademark Web site, and that allowing Bally to shut infringement), the free-expression right of down the site would unacceptably allow the rock group to parody Barbie took trademark law “to eclipse First Amendment precedence.23 rights.”26 But most of these disputes never On the other hand, the enthusiasm of make it to court, and threats of litigation are movie, book, and music fans is often often enough to suppress criticism of squelched by unappreciative copyright corporate practices and products. owners. Internet “fan sites” have shut Similarly, wealthy organizations ranging down after media corporations threatened from the Walt Disney Company to the their proprietors with suits for trademark National Basketball Association often use and copyright infringement. The rock band “cease-and-desist” letters to intimidate Phish claims control over all fan sites and critics and chill “appropriationist art.”27 The forbids them from containing “defamatory” rap music technique of sampling has been or “offensive” content. Twentieth Century inhibited by lawsuits that challenge the Fox sent cease-and-desist letters to Buffy borrowing of even a few bars of a lyric or the Vampire Slayer fan sites, driving, as melody for purposes of incorporating them one reporter quipped, “a stake into the into a new musical creation.28 hearts of Netizens everywhere.” And
10 “The Progress of Science and Useful Arts” Indeed, the fact that an injunction was Compared to fair use, there have been entered halting publication of The Wind relatively few legal disputes involving the Done Gone – even though it was eventu- first sale rule. Still, there are some close ally reversed on appeal – demonstrates and difficult questions. In one case, a court how subjective and unpredictable fair use ruled that tearing illustrations from a can be. The four factors that enter into a legitimately purchased book and mounting finding of fair use, as enumerated in the them on ceramic tiles for resale was not copyright law, all involve judgment calls.29 protected by the first sale rule. But in a As one scientist has written, the legal later case, a different court found that definition of fair use is “maddeningly mounting lawfully acquired cards on tiles vague. ... Even a well-trained copyright was protected.32 More recently, software lawyer cannot say with certainty where the companies have been able to circumvent line lies between fair and unfair uses.”30 the first sale rule by “licensing” rather than selling their products.33 The First Sale Rule The copyright industry has persuaded Congress to enact two major exceptions to A third critical safety valve is the first the first sale rule – one for music and the sale rule – the concept that copyright other for computer software. Although a holders only control the first sale of their purchaser of a CD can still give or sell it to works, after which purchasers may give a friend, anyone with a “commercial them away, sell them, or otherwise pass purpose” is forbidden, under the Record them along to friends, colleagues, second- Rental Amendment of 1984, from renting hand stores, libraries, schools, Salvation or lending musical recordings.34 The Army outlets, flea markets, auctions, or any industry feared that without this exception, other place where the public can re-use music lovers would rent their favorite them. Video stores can rent tapes to recordings and then copy them onto tape countless customers, and libraries can for their home collections, instead of buying likewise lend books to countless borrowers them. Libraries and other nonprofit educa- – who in turn can lend them to their tional institutions have an exemption from friends, as long as someone returns them the law, and are still permitted to lend 31 on time. musical works.
The first sale rule aids immensely in the In 1980, the industry carved out another spread of knowledge, entertainment, exception to the first sale rule for software. inspiration, and ideas. It is also a pragmatic The justification, according to the U.S. recognition of the limits of copyright Copyright Office, was that computer enforcement. For few of us would want to programs are “the only type of copyrighted live in a world where corporations or work that can be easily, quickly, totally, and government agents monitor and control perfectly copied by an infringer.”35 Again, what we do with every book, computer nonprofits are exempted. program, or CD that we buy. Yet through encryption, mandatory clickwrap agree- The authors of the leading treatise on ments, and other “DRM” techniques, the copyright law criticize this erosion of the copyright industry has been able to under- first sale rule. They argue that a book mine the rights of the public under the first buyer should have the same right to sale rule. distribute the book to others regardless of
Why Copyright Today Threatens Intellectual Freedom11 whether it is in “hardcopy” or electronic music, folk, blues, and jazz all borrow form.36 Likewise, it is questionable themes, riffs, and melodies from earlier whether the computer software industry creations.40 should, through licensing and other con- tracts, be able to undermine the fundamen- In addition to this vital role in fermenting tal principle that after the first sale of a creativity, the public domain also promotes work, copyright owners have no further preservation and scholarship. Historians right to control its distribution. can reproduce pictures, letters, sound recordings, and other expression without The All-Important Public pursuing the frequently futile quest for Domain copyright permission. Even when owners can be found, they may refuse permission, or impose unpalatable conditions. Report- The fourth and perhaps most important edly, the estate of songwriter Lorenz Hart free-expression safety valve is the public refuses any biographer who mentions domain. The Copyright Clause requires that Hart’s homosexuality to reprint his lyrics. after a “limited time” of monopoly control, Likewise, the playwright Lillian Hellman creative works must enter the public was reputed not to have licensed any domain, where they are free for anyone to except “first-class” productions of her publish, sell, adapt, translate, record, or works. Ted Hughes, widower of the poet perform. And “limited time,” as we have Sylvia Plath, strictly controlled what seen, meant only 14 years, renewable for biographers and anthologizers could say another 14, under the nation’s first copy- about her life and their stormy marriage in right law. As the 19th century legal scholar exchange for permission to quote her and Supreme Court Justice Joseph Story poems or letters.41 wrote, the purpose of the Copyright Clause was to “admit the people at large, after a For scholars and archivists, fair use is short interval, to the full possession and not an adequate substitute for the public enjoyment of all writings and inventions domain. It is often impossible to predict without restraint.”37 whether a particular borrowing will be considered fair by a judge or jury, and, One reason an expanding public domain perhaps more important, these issues are is so important is that creative works grow seldom decided in court – most publishers from past achievements; they do not, as simply will not print copyright-protected law professor Jessica Litman quipped, just documents without permission. This rise full-grown, like “Aphrodite from the includes even unpublished letters, drawings, 38 foam of the sea.” Justice Story explained and photographs. not long after the Copyright Clause was written that “few, if any, things” are Finally, popular access is greatly “strictly new and original throughout. Every enhanced once works enter the public book in literature, science and art borrows, domain. Material that is unavailable, or and must necessarily borrow, ... much available only in expensive editions, can, which was well known and used before.”39 once copyright expires, be published and From Shakespeare to James Joyce, distributed in wide variety, more cheaply, Michelangelo to Andy Warhol, creators and and often with new introductory or supple- inventors have echoed, copied, mocked, mentary texts. The year after Willa and transformed previous works. Rock Cather’s My Antonia entered the public
12 “The Progress of Science and Useful Arts” domain, seven new editions appeared, with domain thus cannot be blamed for insults to different introductions and varying prices – the integrity of creative works. a pattern that is typical.42 Libraries can freely copy and disseminate letters, photo- Perhaps more important, all of those graphs, and news articles once they are in allegedly “horrid” copies of It’s a Wonder- the public domain. Amateur or impecunious ful Life enabled millions of people to see it. theatrical troupes can perform musicals, The film “was actually a box-office flop at plays, and poems without paying often the time of its release, and only became the prohibitive licensing fees. Christmas movie classic in the 1960s due to repeated television showings at Christmas- The copyright industry, by and large, time.”45 It was thanks to the public domain takes a less enthusiastic view of the public that the film achieved classic-movie status. domain’s virtues. Media companies say that works are neglected and decay when Finally, Martin’s argument that works nobody with monopoly control is motivated will only be preserved if their owners have to preserve them. Paramount Pictures Vice an incentive to keep them profitable applies President Scott Martin recently gave an to relatively few creations. For most works, example: the classic Frank Capra movie, which no longer have commercial value, It’s a Wonderful Life, which entered the entry into the public domain is crucial public domain at the end of its first copy- because only then can archivists preserve right term because its owner failed to file a them without going through the laborious, timely renewal application. As a result, expensive, and often futile process of trying Martin wrote, “the film was endlessly to locate and secure permission from broadcast by local stations and cable copyright owners. channels looking for no-cost program- The public domain is a critical part of ming.” It was “sliced and diced” to fit into the “difficult balance” underlying the time slots between commercials. “By the Constitution’s Copyright Clause. Yet in the 1980s,” he said, “there were multiple past century, versions of the film, all in horrid condi- Congress has tion.”43 “Even a well- stretched the trained copyright But once the owners of the underlying “limited time” lawyer cannot say rights to the story and music asserted their contemplated by claims, Martin says, the film was spruced the Copyright with certainty up, with marvelous results. “Only after the Clause to the where the line lies copyrights in the underlying rights were point where it between fair and enforced was anyone willing to spend the now, as one money necessary to restore and preserve scholar quipped, unfair uses.” the film.”44 resembles perpetual copyright “on the installment There is another side to this story, of plan.”46 From the original 14 years, renew- course. Anyone who has been on an able for another 14, in the 1790 Act, airplane or watched movies on TV knows Congress in 1831 extended the term to 28 that media companies frequently allow their years, renewable for another 14; and again copyright-protected works to be “sliced and in 1909, to 28 years, renewable for another diced” (and bowdlerized to eliminate 28.47 Between 1962 and 1974, Congress naughty words or scenes). The public
Why Copyright Today Threatens Intellectual Freedom13 enacted nine short-term extensions, to Then came the Sonny Bono Copyright prevent older works from entering the Term Extension Act of 1998, which added public domain while it prepared a massive another 20 years across the board. Under new copyright law that finally passed in the Sonny Bono law, the “limited time” of 1976.48 copyright is now the author’s life plus 70 years for individuals, and 95 years for most This 1976 law, following the interna- copyrights held by corporations.50 Like the tional Berne Convention, adopted a flexible previous extensions, the law expands – and lengthy – “limited time”: the life of copyright not only for future works, but for the author plus 50 years for individuals and existing ones, even though their authors – their estates; 75 years from publication or many of them now dead – obviously don’t 100 years from creation, whichever expired need any additional incentive to create first, for corporations holding copyrights on them. works created by their employees (so- called “works made for hire”).49
14 “The Progress of Science and Useful Arts” Chapter 2: Freezing the Public Domain: The Battle Over the Sonny Bono Law
who then signed on as a co-sponsor. The Politics of Copyright Journalist Daren Fonda noted: “That day, Extension Lott’s campaign committee received a check from Disney for $1,000 and 11 days The Sonny Bono law was the result of later, Disney donated $20,000 in unre- strenuous lobbying by the copyright stricted ‘soft money’ to the National industry. Often called the “Mickey Mouse Republican Senatorial Committee.”53 Law” because of the Walt Disney Company’s central role in urging its Given all this industry largesse, it is passage, it prevented the original image fitting that the Sonny Bono law bears the and character of Mickey, who made his name of an entertainer-turned-politician. screen debut in 1928 in the film Steamboat Mary Bono, who succeeded to her Willie, from entering the public domain in husband’s seat in Congress after his death, 2003. Disney and other film companies explained: “Sonny wanted the term of pushed aggressively for term extension, copyright protection to last forever,” but “I smoothing the way, as one journalist noted, am informed by staff that such a change with “well-targeted campaign contribu- would violate the Constitution.” She tions.”51 suggested that Congress consider the proposal of the MPAA’s Jack Valenti, for During the three years it took to pass “forever less one day.”54 the Sonny Bono law, media companies and their political action committees (PACs) Defending the Public Domain: gave more than $6.5 million in campaign Eldred v. Ashcroft contributions to members of Congress. Representative Howard Coble, a co- sponsor of the law, received $63,000 in The effect of the Sonny Bono law was individual and PAC contributions. Senate to prevent more than 400,000 works from co-sponsor Orrin Hatch received $50,000 the 1920s and ’30s from entering the public 55 from large donors, including the major domain. Most of them were obscure movie studios, the Motion Picture Associa- creations without commercial value, though tion of America (MPAA), and ASCAP. 52 often with considerable historical interest. But many famous works also had their Senator Patrick Leahy, who publicly copyrights extended – among them, F. forgoes PAC contributions, received nearly Scott Fitzgerald’s The Great Gatsby, $20,000 from individual Disney employees. Ernest Hemingway’s The Sun Also Rises, (He was the ranking minority member of Thomas Mann’s The Magic Mountain, the Senate Judiciary Committee that the iconic American film The Jazz Singer, passed on the bill.) Time Warner employ- the book and score to the musical Show ees gave Leahy $36,000. Disney chairman Boat, songs by Cole Porter, and the Michael Eisner flew to Washington to meet children’s classic Winnie the Pooh.56 with Senate Majority Leader Trent Lott,
Why Copyright Today Threatens Intellectual Freedom15 As the briefs filed in the legal case that from popular films of the time. They challenged the Sonny Bono law attested, substituted government documents or other the effects were dramatic. The College Art works in the public domain, but the result Association, in a friend-of-the court (or was an unbalanced picture of the era. amicus curiae) brief joined by the The brief described an art historian who National Humani- was refused permission to use a photo of ties Alliance and Pablo Picasso and his daughter because other groups the copyright owner disagreed with the whose members historian’s analysis of Picasso’s work. A study visual art, publisher that planned a new critical edition explained that of Cane, by the Harlem Renaissance scholars assem- author Jean Toomer, in part to counterbal- bling texts and ance the bias against Toomer reflected in databases often the only available edition, could not go cannot locate the ahead because of the copyright term owners of copy- extension on Cane. “In the past,” the brief rights in education- said, “researchers could anticipate and plan Eric Eldred at the Supreme Court. ally valuable on new material becoming available for Photo by Declan McCullagh letters, songs, unrestricted use on a constant and continu- photos, and other documents. Indeed, most ing basis.” But the law’s 20-year “morato- authors have neither the time nor the rium on the public domain” upsets those financial resources to do this gritty work of expectations and penalizes scholars, tracking down copyright permissions – museums, teachers, and historians. All this though publishers generally expect them to. in the interest of further enriching a rela- Without permissions, most publishers won’t tively few copyright owners “who already include the materials. have received significant value from their ownership under the preexisting term.”57 As a result, said the College Art Asso- ciation, there are “gaping holes” in such The suit challenging the Sonny Bono documentary compilations as The Video law started with a small online publisher Encyclopedia of the Twentieth Century, named Eric Eldred. He began the nonprofit a resource popular with researchers and Eldritch Press in 1995, “inspired to help his teachers, and “Who Built America?,” an triplet daughters wade through the antique award-winning CD-ROM series for high prose of [Nathaniel Hawthorne’s] The school and college students containing Scarlet Letter, which they were assigned 58 primary sources from the 1930s. The to read in middle school.” Eldred compilers of “Who Built America?” had searched for Internet resources to assist great difficulty finding copyright owners, them, including accessible, comprehensible, and those they found sometimes wanted and reader-friendly copies of the text. As large fees even where the works in ques- his lawyer Lawrence Lessig tells the story, tion had no commercial value. Thus, they what Eldred found online “was essentially 59 were forced to omit the Depression Era unusable.” The Web versions had typos, demagogue Huey Long’s campaign song, relied on outdated texts, or were crudely “Every Man a King,” as well as many clips scanned.
16 “The Progress of Science and Useful Arts” Beginning with Hawthorne, Eldred The Prophet, originally published in 1923. began to provide easily readable texts of The choir director, who limits her selections other public-domain works, by such major- to public domain works because of the high league authors as Joseph Conrad, Anton cost of copyrighted sheet music, planned to Chekhov, and Henry James. The daily “hit perform work by Ralph Vaughn Williams count” on his Web site grew to 20,000. In and Edward Elgar. The classical sheet 1997, the National Endowment for the music company was preparing to publish Humanities recognized Eldritch Press’s compositions by Béla Bartok, Maurice Hawthorne site as “one of the 20 best Ravel, and Richard Strauss, which were humanities sites on the Web.”60 about to enter the public domain, and distribute them to school and community Eldred was set to add a Sherwood orchestras.61 Anderson story collection and a book of Robert Frost poems, among other works This was the first time anyone had whose copyrights were about to expire, brought a legal challenge to copyright when the Sonny Bono Act delayed their extension, and the lower courts made quick entry into the public domain by 20 years. work of Lessig’s claims. A federal judge He began to complain publicly, and one dismissed the suit, and in February 2001, news story caught Lessig’s attention. With the U.S. Court of Appeals, by a 2-1 vote, Harvard Law School’s Berkman Center affirmed. The judges in the majority ruled for Internet & Society, Lessig framed a that neither the opening words of the legal challenge to the Sonny Bono law. Copyright Clause nor its reference to “limited times” prevents Congress from They had three legal arguments. First, extending copyright as often as it likes. The by freezing the public domain, the Sonny one dissenting judge pointed out that Bono law violates the right to free expres- repeatedly extending copyright is funda- sion and access to ideas, as embodied in mentally equivalent to creating a perpetual, the First Amendment. Next, by extending unlimited – and therefore clearly unconsti- copyright for already-created works, the tutional – term.62 law violates the Copyright Clause require- ment of limited times. Finally, the law does Eldred in the Supreme not “promote the progress of science and Court useful arts,” as required by the opening words of the Copyright Clause, because By this time, news of both the Sonny there is obviously no need to provide Bono law and the Eldred case had spread. further motivation for authors to produce Librarians, scholars, activists, and many works that already exist. others grew concerned about copyright’s continuing impoverishment of the public Other plaintiffs in the case that became domain. “Free Mickey” became the known as Eldred v. Ashcroft included a rallying cry of those supporting Eldred.63 publisher of books on genealogy and local After the Supreme Court agreed to review history, a church choir director, a classical the case, a large coalition of law profes- sheet music company, the American Film sors, library associations, archivists, writers, Heritage Association, and Dover Publica- computer professionals, arts and humanities tions, famous for quality reprints of public alliances, and media centers weighed in domain works. Before copyright extension, with amicus curiae briefs on Eldred’s Dover planned to reprint Kahlil Gibran’s behalf.
Why Copyright Today Threatens Intellectual Freedom17 In all, fourteen amicus briefs on The brief offered as one example the Eldred’s side were submitted, with a total Steven Spielberg Digital Yiddish Library, of 141 signers. They included groups with about 12,000 digitized works, which ranging from the National Writers Union “has helped turn a dying literature into ‘the and the College Art Association to the most in-print literature on the planet.’” This Association of American Physicians & online archive “brings both a literature and Surgeons and Computer Professionals for an enriched understanding of the Yiddish Social Responsibility. Their aim was to culture to people across the globe.” bring home to the Supreme Court justices the real cultural costs of ever-longer By contrast, “other parts of our culture copyright terms, and consequent freezing and heritage remain obscured behind the of the public domain. wall of copyright.” Early issues of The New Yorker, Time, Readers Digest, and The brief from online archiving projects, other magazines “provide an unparalleled for example, described how Internet public- window into early 20th century American domain publishing has revived countless life and culture.” But unlike the Yiddish forgotten or hard-to-find works. Archiving treasures in the Spielberg archive, few of projects now “digitize and distribute millions these magazines can be found online of out-of-copyright books, movies, and because they are still under copyright. Until music ... materials that commercial publish- they fall into the public domain, the process ers, distributors, and rights-holders have of clearing rights for each article, drawing, effectively and photograph makes digital archiving abandoned.” practically impossible. Disney took While media advantage of the companies that The archives’ brief also pointed to public domain in own the copy- movies, that “rare medium of full immer- rights “often let sion,” with unmatched power “to transport creating Snow these films us to distant times and places.” Film White, Cinderella, decay and “literally allows us to bear witness,” and other books disappear, whether to the police violence inflicted on this material is civil rights era protesters, Martin Luther classics. invaluable to King, Jr.’s leadership of the 1965 march on scholars re- Selma, Alabama, or countless other histori- searching our history, artists developing cal events. But as the public domain new art forms, and anyone seeking to recedes, teachers, students, scholars, and explore our culture.” the rest of the public are unable to see these images.64 To reclaim these works, they must be in the public domain. Finding and paying Other support for Eldred came from copyright owners is untenable, given the First Amendment lawyers, copyright millions of documents involved. And in any lawyers, writers, libraries, and economists. case, the vast majority of works affected The writers, among them William Gass, by the Sonny Bono law – published more Peter Matthiesen, Eva Hoffman, and than 70 years ago – “are not available from Ursula Leguin – all, of course, copyright copyright owners at any price” because the owners themselves – argued that a grow- owners cannot be found. ing, healthy public domain is the necessary
18 “The Progress of Science and Useful Arts” source for new creation. They pointed out that allows them to reproduce and distrib- that Disney, which worked so hard to ute works that are in their final 20 years of freeze the public domain by pushing for the copyright – but only if the works are not Sonny Bono law, nevertheless took advan- currently profitable for their owners, and if tage of it many times in creating animated copies cannot be obtained “at a reasonable versions of Snow White, Cinderella, The price.” The exemption is so narrow, said Hunchback of Notre Dame, and other the librarians, that it “may ultimately do classics. Indeed, Disney’s Steamboat little” to “mitigate the substantial burdens” Willie was a parody of the classic Buster of the law. 67 Keaton movie, Steamboat Bill, Jr.65 The Department of Justice and the The economists’ brief argued that copyright industry countered the outpouring copyright extension produced no economic of briefs attacking the Sonny Bono law benefit – virtually no additional incentive to with powerful arguments of their own. The create new works, and significantly higher government’s brief emphasized how novel costs for “derivative works” such as Eldred’s claims were: Congress has been adaptations and performances. And as with extending copyrights on existing works for any monopoly, the elimination of competi- 200 years, and no one before had brought a tion increased costs to consumers.66 legal challenge arguing that “limited times” cannot be extended or that the opening Finally, a brief from the American words of the Copyright Clause (“to pro- Association of Law Libraries, the Medical mote the progress of science and useful Library Association, and other library arts”) mean that laws not shown to encour- groups had particular relevance for schol- age new creations are beyond Congress’s arship and culture. These are the institu- power. In any event, they argued, the tions that preserve literature, art, science, longer term would spur media companies to journalism, and other products of human invest in restoring and distributing old creativity, and make them available to all, works, and although not creative, these regardless of wealth. The brief described activities also promote “science and useful Documenting the American South, an arts.” electronic collection sponsored by the University of North Carolina, which The government stressed that Con- provides no-fee access to more than 1,000 gress, not the courts, is the appropriate publications and manuscripts. This archive branch of government to decide what includes Confederate imprints, Southern policy best serves art and culture. Indeed, it literature, materials on the African Ameri- insisted, for the courts to wade into this can church, and about 160,000 pages of area would require reviewing a multitude of slave narratives, of which, in many cases, congressional judgments – among them, only a few hard copies exist. Before that longer copyright protection, not the digitization, hardly anyone got to see them. public domain, advances film preservation, Now they are accessed by 15-20 people and that the media industry, if it receives per day – well over 5,000 per year. The additional profits, will invest in more new project would be impossible without the creations. The government’s lawyers public domain. warned the Supreme Court that if it starts subjecting copyright term extensions to The librarians’ brief also addressed a First Amendment scrutiny, it will end up in limited exemption in the Sonny Bono law
Why Copyright Today Threatens Intellectual Freedom19 the impossible position of second-guessing through the public domain make use of Congress’s judgments on “each and every well-known characters to glorify drugs or feature” of copyright law. 68 to create pornography. These uses, espe- cially for children’s works, demean and As if to outdo Eldred’s supporters, those dilute the original works and discourage on the government’s side filed a total of 18 their continued popularity.”69 amicus curiae briefs. Several came from the copyright industry – the MPAA, AOL The assumption of these copyright Time Warner, the Recording Industry owners was that cultural icons like Dr. Association of America (RIAA). Others Seuss should be immune from irreverent or came from celebrated copyright holders or scandalous uses. But this misapprehends their estates – George Gershwin, George the role of mockery and cultural quotation Balanchine, and David Mamet (among in a system of free expression. These others who signed on to a brief from the writers’ estates seemed unwilling to accept Association of American Publishers); the that the fame of works like The Cat in the Songwriters Guild of America; and Hat or Charlotte’s Web makes them AmSong, Inc. (an “organization dedicated natural targets for take-offs and parodies. to the protection of musical copyrights,” They should no more have immunity from whose members include Bob Dylan, Carlos such critiques or humor than the Walt Santana, Don Henley, and Thelonious Disney Company should be able to sup- Monk, Jr.). press the famous “Disneyland Memorial Orgy,” a cartoon created by Mad maga- The common themes of these briefs zine illustrator Wally Wood and published supporting copyright extension were the as a poster by The Realist magazine in the financial and proprietary interests of 1960s.70 The “Orgy” depicts Mickey, creative artists and their heirs. They also Minnie, and other Disney characters in argued that copyright holders make good sexually suggestive situations. Although use of already-created works through Disney has tried over the years to stop adaptations and movie deals. But they distribution of the “Orgy,” it remains an failed to acknowledge the even greater use important wry comment on the sexlessness that would occur if the works were allowed of “Disneyfied” American culture. to enter the public domain. Another common argument of those A brief that was particularly aggressive defending the Sonny Bono law was that the (and humorless) came from Dr. Seuss copyright system, by recognizing fair use Enterprises, the heirs of E.B. White (author and the idea/expression dichotomy, already of the timeless Stuart Little and accommodates First Amendment rights. Charlotte’s Web), and Madeleine and The government’s brief elaborated on this Barbara Bemelmans (heirs of Ludwig, the theme. Just as in the Nation case, it said, author of the Madeline books). They where the Supreme Court rejected an argued that enriching the public domain argument that the public interest in Gerald was not a purpose of the Copyright Clause Ford’s memoirs required a new exception at all, and in fact that allowing works to to copyright, free speech safeguards such enter the public domain has pernicious as fair use already “protect First Amend- effects. “While in no way seeking to ment interests and render further judicial disparage” Eldred and his fellow plaintiffs, intervention unnecessary.”71 they said, “others having access to works
20 “The Progress of Science and Useful Arts” Finally, the government and its support- On October 9, 2002, the case of Eldred ers emphasized the need for “harmoniza- v. Ashcroft was argued before a packed tion” of U.S. copyright law with Europe’s. audience in the Supreme Court. Several of They said Congress was right to decide the justices seemed incensed by the Sonny that in the interests of international trade, Bono law. and of protecting America’s number two Sandra export, popular culture, U.S. copyright Day holders should not have any less protection O’Connor abroad than their foreign competitors. said the Under the Berne Convention, countries law “flies need only give the same copyright protec- directly in tion to a foreign work that it has in its the face” country of origin. Hence, without the Sonny of the Bono law, U.S. copyrights would be “very protected in Europe for the life of the short author plus 50 years (as provided by the term” of 1976 Copyright Act) rather than life plus 70 copyright – the term in European Union countries.72 that the framers of But the Sonny Bono law did not in fact the Part of the “Disneyland Memorial Orgy” by Wally Wood. make U.S. copyright terms consistent with Constitu- Europe’s. European Union countries give tion had in mind. But she wondered 70 years for works owned by corporations. whether this necessarily made it unconsti- The Sonny Bono Act gives corporations 95 tutional. Justice Ruth Bader Ginsburg had a years from the date of publication or 120 variant on the same question: should there years from the date of creation, whichever be any judicial review of Congress’s expires first – that is, at least 25 years decisions in this area, she asked Lessig; longer than many countries in Europe.73 and if so, what standard should apply?
Moreover, most European countries Justice Stephen Breyer was skeptical of don’t have an equivalent of the U.S. “work the government’s claim that Congress can for hire” doctrine, which gives corporations legitimately promote “science and useful the copyright in works created by their arts” not by encouraging creativity but employees. In Europe, the life of the author simply by rewarding the distributors of – or multiple authors in the case of movies already-created works. He asked the – is often used to calculate copyright terms government’s lawyer, Solicitor General Ted for works by corporate employees. Hence, Olson, whether Congress could therefore the goal of harmonizing U.S. and European pass a law granting copyrights for the copyright law is stymied at the outset by a Bible, Shakespeare, or Ben Jonson? The major difference in the treatment of works question was obviously rhetorical, but by corporate employees. The U.S. Register Olson was reluctant to say that even this of Copyrights admitted to Congress before would be unconstitutional. passage of the Sonny Bono law that the 20-year extension would not make Ameri- Several other justices seemed uncom- can law consistent with Europe’s.74 fortable with the law’s extension of existing copyrights. But O’Connor asked Lessig
Why Copyright Today Threatens Intellectual Freedom21 whether invalidating it would not doom the consider that those “limited monopolies” 1976 Copyright Act, which also added to lasted quite a short time in the 18th century, the term of existing copyrights. Breyer or whether “limited” is even an appropriate opined that invalidating the ’76 law would description for a period that spans nearly a produce “chaos” that would be “horren- century – and often longer. But in any dous.” Lessig responded that the Court event, Ginsburg said, “copyright law could make a distinction because of the contains built-in First Amendment accom- settled expectations created by the ’76 modations” – in particular, the idea/expres- Act.75 sion dichotomy and the defense of fair use.78 After the argument, Lessig reported that research on the books and movies What Ginsburg overlooked here, as law whose copyrights were extended in 1976 professor Jack Balkin soon pointed out, “is indicates that the vast majority are no that the limitation of copyright terms is also longer commercially available; hence, “a a central important built-in feature of surprisingly small amount of work would be copyright law that protects free speech affected” if the ’76 Act were invalidated.76 values.” Balkin added: “In the Court’s eagerness to get rid of the First Amend- Nevertheless, this question about the ment claims in this case, it has created truly vulnerability of the 1976 copyright law bad law that will cause problems for loomed in the justices’ minds. On January freedom of expression for many years to 15, 2003, they upheld the Sonny Bono law come.”79 by a vote of 7-2. The Supreme Court’s 2002 decision in Justice Ginsburg’s opinion for the Court Eldred v. Ashcroft gives Congress near- made no mention of the ways that a total discretion to decide what is an appro- stagnant public domain impoverishes art priate copyright term – to extend the and culture, as the College Art Association “limited time” yet again for virtually any and others had documented in their briefs. period. As Justice John Paul Stevens noted Instead, she condemned Justice Breyer, in a dissenting opinion, only one year’s one of the two dissenters, for making worth of creative works entered the public “abundant policy arguments” instead of domain in the preceding 80 years. By sticking to legal precedent. Breyer’s allowing Congress to extend existing impassioned dissent relied extensively on copyrights ad infinitum, Stevens said, the the briefs, noting for example that about majority ignored “the central purpose” of 350,000 films, songs, and other works with the Copyright Clause.80 little or no commercial value are still frozen in “a kind of intellectual purgatory” be- Justice Ginsburg was certainly right that cause of the Sonny Bono law. 77 copyright term extension is an issue of policy. Of course, this doesn’t disqualify the Ginsburg’s opinion gave short shrift to courts from weighing in; they often con- the free-expression issue. The Copyright sider policy arguments, especially in Clause and the First Amendment “were constitutional cases. As Justice Breyer adopted close in time,” she said – indicating said, “judicial vigilance” is necessary “if we that, “in the Framers’ view, copyright’s are to avoid the monopolies and consequent limited monopolies are compatible with free restrictions of expression” that the Copy- speech principles.” Her opinion did not
22 “The Progress of Science and Useful Arts” right Clause and the First Amendment certainly not the outcome intended by the were both intended to prevent.81 drafters of the Copyright Clause.
In an editorial, The New York Times The Supreme Court’s failure to come to agreed. Calling the public domain “the grips with the problem of the disappearing great democratic seedbed of artistic public domain suggests that this issue must creation,” the Times opined that the Su- be resolved in the public policy arena. And preme Court’s decision “may make consti- despite the disappointingly wooden Su- tutional sense, but it does not serve the preme Court decision in Eldred, the public well.”82 litigation may have had the salutary effect of taking the issue out of the legislative The Difficult Balance Revisited: shadows and into the light of policy debate. What is a “Limited Term”? As one journalist noted, public awareness might now persuade Congress to revisit the issue and, at the very least, allow copy- Copyright term extension is an issue rights to lapse “unless owners make an that splits the worlds of art and culture. effort to renew them.”83 First Amendment experts disagreed on the constitutionality of the Sonny Bono law. Lawrence Lessig elaborated, arguing Bob Dylan, Carlos Santana, and many that it is not necessary to lock up all works other artists urged Congress to pass it. created after 1923 in order to go on Since existing law already gave them providing profits for the 2% of them that copyright control for life plus 50 years, they “continue to be commercially exploited.” were presumably concerned about the Just as patent holders must pay a fee every ability of their grandchildren and great- few years to continue their patents, “the grandchildren to profit from their works. same principle could be applied to copy- Understandably (but incorrectly), they right.”84 Scholars, archivists, artists, and the thought of their creations as their perma- reading and listening public could then at nent property. least use materials whose owners do not bother to renew. The Eldred case was not an easy one as a matter of constitutional law. As the As Lessig and many others have government argued, how is a court to pointed out, the stakes are higher than ever. decide what is an appropriate, or constitu- The Internet for the first time enables tionally permissible, “limited time”? This people the world over to read, view, and does seem essentially a judgment for learn from works that in pre-digital times Congress to make. were buried in library stacks, private collections, attics, or basements. The But if “limited time” can really mean immense promise of global communication, hundreds of years, or can be extended by preservation, and intellectual exchange Congress indefinitely, then the public should not be squandered by the calcifica- domain becomes a dead letter – which is tion of the public domain.
Why Copyright Today Threatens Intellectual Freedom23 Chapter 3: The Ins and Outs of Circumvention: The Digital Millennium Copyright Act
Locking Up Expression and could be freely browsed in a bookstore or library. Shrinking Fair Use As Professor Pamela Samuelson put it After the Supreme Court agreed to in an article headlined “ALERT – Stop the review the Eldred case, one reporter made Clinton Copyright Grab”: “Browsing the connection between the Sonny Bono through a borrowed book, lending a maga- law and other efforts to strengthen copy- zine to a friend, copying a news article for right control by observing that term exten- your files – all seem innocuous enough. But sion is part of “a larger fight that pits the Clinton administration plans to make copyright holders against the spread of such activities illegal for works distributed technology that allows almost anyone to via digital networks.”87 easily copy and distribute almost any work online.”85 The main battleground of that Starting from this radical premise, “larger fight” is the apocalyptically named Congress now crafted a law to help the Digital Millennium Copyright Act, or industry prevent unauthorized access to DMCA. copyrighted material. The DMCA essen- tially gives the force of law to the The DMCA had its origins in a 1994 industry’s digital rights management “Green Paper” that the Clinton Administra- techniques. Indeed, the DMCA goes tion produced in response to industry beyond making it a crime to circumvent concerns about the potential for wide- encryption devices in order to access spread copying and sharing of books, copyrighted works. It also criminalizes the articles, movies, music, and virtually any very creation and distribution of circumven- other expression online. The problem of tion tools.88 electronic piracy was – and remains – a serious one. The question is how to These “tools” provisions of the DMCA address it without undermining copyright’s (sometimes called the “anti-trafficking” free-expression safety valves. The Green provisions) exceed anything previously Paper took a radical approach, asserting contemplated in copyright law. For instead that every reading or viewing of a work on of penalizing copyright infringement, they a computer should be considered a repro- ban research and communication of 86 duction requiring copyright permission. information that might be used for infringe- This approach dramatically restricts ment. Like efforts to ban the VCR, re- both fair use and the first sale rule online. jected by the Supreme Court in the 1984 It prevents anyone who legitimately Sony case, banning circumvention tools is accesses or purchases a document from troubling because they have many legiti- making a backup copy or forwarding it to a mate “non-infringing” uses. friend, without a new permission. It locks Supporters of the DMCA respond that up everything that in the offline world it accommodates fair use and other tradi-
24 “The Progress of Science and Useful Arts” tional checks on copyright monopolies. For Web sites blocked by Internet filters, and example, it only prohibits circumvention of works made inaccessible because of electronic locks for purposes of access, not “malfunction, damage, or obsoleteness” of for purposes of copying. But the “tools” encryption devices. In late 2003, the Copy- provisions ban technologies designed for right Office added two more exceptions – access or copying. Thus, as Jessica Litman for “computer programs and video games wrote, consumers wanting to make legiti- distributed in formats that have become mate use of copyrighted works must come obsolete,” and for “literary works distrib- up with ways to circumvent encryption on uted in e-book format,” when all existing e- their own.89 And they cannot share what book editions contain access controls that they discover unless they are willing to risk block read-aloud functions and other being sued or prosecuted for “trafficking” software useful to the visually impaired. 92 in circumvention tools. Like copyright term extension, the The law has a few narrow exemptions. DMCA has been defended as necessary to One permits “nonprofit libraries, archives, harmonize U.S. with international law. Two and educational institutions” to use circum- treaties crafted by the World Intellectual vention tools to access a work – but “solely Property Organization (WIPO) oblige in order to make a good faith determination member countries to “provide adequate of whether to acquire a copy,” and only if legal protection and effective legal rem- the work “is not reasonably available in edies” against circumvention of electronic another form.” Another exception permits locks on copyrighted works. According to “reverse engineering” in very limited the Copyright Office, the DMCA simply circumstances once a person has already “implements the WIPO treaties.”93 “lawfully obtained the right to use a copy of a computer program.” Still another allows But the head of the Patent and Trade- research designed to “analyze flaws and mark Office acknowledged that the treaties vulnerabilities of encryption technolo- do not require the DMCA’s “device- gies.”90 But in each case, using the exemp- oriented” approach – as opposed to the tion is difficult because manufacture and more traditional “conduct-oriented” ap- distribution of the necessary tools is illegal. proach that targets copyright infringers and not the researchers who create new The DMCA acknowledges the impor- technologies.94 tance of fair use. It directs the Librarian of Congress (after investigation by the Copy- Effects of the DMCA right Office) to decide every three years whether anybody seeking access to any CASES INVOLVING SCHOLARSHIP “particular class of works” for legitimate One of the first applications of the aims such as fair use is likely to be “ad- DMCA was against scholars. In early 91 versely affected” by the law. But in 2000, 2001, a group of companies calling them- after receiving hundreds of comments from selves the Secure Digital Music Initiative educational and civil liberties groups on the issued a “Public Challenge” to computer importance of circumvention to the exer- experts to try to circumvent the water- cise of fair use, the Copyright Office marks they had developed to prevent recommended only two narrow exemptions unauthorized accessing or copying of to the access ban of the DMCA: lists of musical recordings. Edward Felten and
Why Copyright Today Threatens Intellectual Freedom25 fellow scientists from Princeton University, scientific advancement. In its Rice University, and Xerox Corporation law enforcement capacity, the cracked the codes, and were preparing to Department remains free discuss the results of their research at a to make its own determination of U.S. Navy-sponsored conference when what any actor’s actual purpose is.96 they received a letter from the RIAA, the music industry trade group. The letter, also Individual scientists along with Usenix, sent to Princeton and Navy officials, an association of more than 10,000 technol- threatened legal action under the DMCA if ogy researchers, contested the govern- the researchers published or publicized ment’s argument for dismissing the case. their work. They focused on the DMCA’s chill on academic research, especially given the The scientists were both incensed and possibility of further industry threats. They intimidated. They withdrew their paper also pointed out that, contrary to the gov- from the conference but, ernment’s claim, Felten plainly had an represented by the Elec- intent to access copyrighted materials – the tronic Frontier Foundation object of the SDMI’s “Challenge,” after all, (EFF), they also sued the was to circumvent the watermarks. What trade group to challenge Felten did not have was an intent to the threatened use of the infringe copyright. DMCA to suppress their research results. The In the end, though, the federal judge RIAA now backed off, dismissed the case because he did not think saying that its letter was “a mistake” – there was a sufficiently live controversy. although reserving the right to threaten By then, Felten had presented his findings other scholars in the future. The Depart- at a Usenix symposium.97 ment of Justice moved to dismiss the case, arguing that it was “not ripe” because the Russian researchers were not so RIAA was no longer threatening to sue.95 fortunate. In July 2001, federal agents arrested Dmitri Sklyarov, a young Russian The government also argued that the programmer, at a conference in Nevada DMCA did not cover Felten’s research. after he presented parts of his dissertation This was because his decryption programs on “eBooks Security – Theory and Prac- were not specifically designed or marketed tice.” The paper described the Advanced with the aim of accessing copyrighted eBook Processor, a program that disabled material. Instead, they were developed “to the Adobe company’s eBook Reader, further scientific research into access encryption software for electronic books. controls.” Like the RIAA, though, the Its major purpose was to allow buyers of e- government hedged its bets, adding: books to translate them into Portable This is not to say that any con- Document Format (PDF), then move them duct undertaken in an academic to other machines for more convenient context would be automatically reading, printing, copying, or rearranging, immune from DMCA liability. much of which would qualify as fair use. Rather, it merely credits Plaintiffs’ The program was legal in Russia where allegation that their purpose is Sklyarov had created it as an employee of 98 in fact academic pursuit and the ElcomSoft company.
26 “The Progress of Science and Useful Arts” The arrest of a young scholar for of text, or hand-copy them rather than discussing technical research at a confer- using the computer’s convenient cut-and- ence caused quite a stir, and in December, paste functions; but the law does not the government agreed to “defer” its guarantee “the right to the most technologi- charges against Sklyarov in exchange for cally convenient way to engage in fair his agreement to testify at a criminal use.”101 prosecution of ElcomSoft. In the agree- ment, Sklyarov acknowledged that the In December 2002, the criminal trial “only purpose” of the Advanced eBook against ElcomSoft began in federal court in Processor was to “create an unprotected California. The distance between the two copy” of an encrypted document.99 Like sides could be gauged by their lawyers’ Felten, though, Sklyarov said he had no opening statements. The prosecutor labeled intent to infringe copyrights, or assist in ElcomSoft’s Advanced eBook Processor a infringement. “burglar’s tool.” The company’s lawyer said it was “a legitimate program never A few months later, ElcomSoft moved used to infringe copyrights.”102 to dismiss the criminal charges, arguing, among other things, that the DMCA’s ban In the end, a jury acquitted ElcomSoft, on anti-circumvention technology is uncon- finding that the company lacked criminal stitutional. The American Association of intent. It is likely that the jury sensed Law Libraries, the Music Library Associa- government overreaching. As online tion, EFF, and other groups supported the commentator Walt Crawford reported, company with a friend-of-the-court brief. “although Adobe hired two companies to They argued that Adobe’s eBook Reader, search for unauthorized books on the like other digital rights management tech- Internet, the company never found any nologies, was “designed to give publishers indication that ElcomSoft’s software was 103 nearly perfect control” over what lawful used to make illicit copies.” owners of e-books can do with them – THE IRREPRESSIBLE “DECSS” CODE including lending, printing, partial copying, and other activities protected by the The early DMCA case that generated concepts of first sale and fair use. By the most heat involved neither e-books nor backing up DRM with legal sanctions, the music. Universal City Studios v. Corley DMCA deprived lawful e-book buyers of was the movie industry’s attempt to their first sale and fair-use rights. 100 suppress a decryption program called DeCSS, which unlocks the industry’s The judge was not persuaded, however, “Content Scramble System” (CSS) for and in May 2002, denied ElcomSoft’s movies on DVD. DVD players come motion to dismiss the case. While acknowl- equipped with descramblers; without them, edging that DRM tools embedded in the disks would not play. But once un- Adobe’s eBook Reader do restrict first sale locked, DVDs can be played on computers and fair use, he said Congress nevertheless and other machines that lack descrambling had the power to “sacrifice” these interests technology. and give DRM the force of law. He added that the DMCA doesn’t eliminate fair use – DeCSS was created in 1999 by three it just makes its exercise more difficult. European programmers, one of them a The fair user may have to retype portions Norwegian 15 year-old, Jon Johansen,
Why Copyright Today Threatens Intellectual Freedom27 whose main interest was not pirating movie studios could identify had actually movies but being able to play them on open used DeCSS to violate copyright, and that source Linux-based computers.104 The interpreting the DMCA to bar any “traf- MPAA filed a complaint against Johansen ficking” in codes like DeCSS essentially in Norway, and a prosecutor responded by eliminated fair use in the digital world, by bringing criminal charges. Meanwhile in the censoring technology that would enable fair U.S., Paramount, MGM, Columbia Pic- users to gain access to creative works. The tures, Time Warner, Disney, and Twentieth DMCA’s structure was “upside-down,” Century Fox joined Universal City Studios they said – it threatened communication in a lawsuit to try and stop the spread of among journalists and scholars by punishing DeCSS. the distribution of information that might be used for copyright infringement more The companies did not sue the hundreds stringently than copyright infringement of Web publishers and activists who were itself.107 discussing, describing, and distributing DeCSS online. (They did send “cease and The Corley case, involving DVDs, desist” letters to many sites, some of which epitomized the shrinking of fair use more removed the program.) Their lawsuit dramatically than the prosecution of instead focused on Eric Corley, editor of ElcomSoft, which involved e-books. For, as 2600: The Hacker Quarterly and propri- the judge who refused to dismiss the etor of the Web site 2600.com. 2600 charges against ElcomSoft observed, those published DeCSS as part of a news article wanting to copy portions of an e-book for reporting on circumvention technology and criticism, scholarship, or other fair uses can the larger political debate over encryption. still do so by laboriously re-typing selected It was not clear why the studios chose to passages. With visual images, retyping just sue only Corley and two others associated doesn’t work. To obtain a film clip or even with his Web site, but his lawyers sug- a single frame for purposes of fair use, one gested one theory: Corley was “a gadfly in must copy it. And to copy it, if it is “copy- the field of computer security, publishing protected” through DRM techniques, one information that often embarrasses security must use circumvention tools. professionals.”105 Corley’s brief to the court of appeals A federal judge, offended by the hacker gave some examples. Princeton Professor mentality and mindful of the industry’s Peter Ramadge, a film scholar, wanted to large investment in DVDs, issued a prelimi- use DeCSS to facilitate his searching nary injunction, a court order forbidding through movies for particular images – Corley and two of his colleagues from such as Humphrey Bogart in the familiar publishing DeCSS or posting it on the act of smoking a cigarette. “Professor Internet. Later, the judge barred Corley Ramadge’s research relies on access to from hyperlinking to any sites where digital video content like that found on DeCSS could be found.106 DVDs,” the brief explained. “Ordinary VCR movies are insufficient. His use of Represented by the Electronic Frontier DVD movies would undoubtedly qualify as Foundation, Corley appealed. His lawyers fair use for research and scholarship.” But argued that the injunction violated his First without DeCSS, Ramadge had to rely for Amendment right to publish truthful infor- his research on an “industrial partner that mation, that neither he nor anyone else the could execute the needed license agree-
28 “The Progress of Science and Useful Arts” ments,” resulting in access to only two full- functional means of accomplishing circum- length movies.108 vention. But even if the First Amendment protects code, the government said, broad Similarly, a friend-of-the-court brief anti-trafficking rules are constitutional from two scholars asked the judges to because there is no “imagine a professor of critical film theory other way to putting together a series of illustrations of prevent piracy. sexist or racist stereotyping in Hollywood Noting “the epi- movies.” Or a professor of media law, demic-like propaga- “who offers a short snippet of The Insider tion of circumven- to motivate discussion of the costs and tion technology,” benefits of commercial media. These and the government said millions of other unsung acts of individual that the Internet creativity that rely on common cultural “poses a unique materials are central to expressive free- threat to the rights dom,” yet the DMCA makes such fair uses of copyright own- virtually impossible.109 ers,” while “digital technology enables Briefs filed by cryptographers, law pirates to repro- professors, the American Library Associa- 2600: The Hacker Quarterly. duce and distribute tion (ALA), and the ACLU gave still more perfect copies of works – at virtually no examples. Columbia law professor Jane cost at all to the pirate.”112 Ginsburg had “linked to sites where DeCSS was posted in the course of teaching her The court of appeals basically agreed. copyright course.” Protesters had worn T- Although it ruled that computer programs shirts “bearing portions of the DeCSS like DeCSS are speech within the meaning source code.”110 (Indeed, shortly after the of the First Amendment, nevertheless, it court of appeals decided the Corley case, said, the DMCA’s anti-tool provisions are it was reported that “DeCSS ties” bearing constitutional. They serve the important portions of the code were available; and purpose of protecting encryption devices, composer Joe Wecker had written “DeCSS which the judges analogized to burglar (Descramble),” a song whose lyrics consist alarms, or locks that property owners install of the DeCSS code.111) in their homes.
These examples suggested the practical Certainly, the appeals court judges problems with a law that bans the ex- conceded, there is a free-expression prob- change of computer codes. The prospect lem with the DMCA, because it shrinks of federal agents confiscating T-shirts or opportunities for fair use. But this was a wading into Professor Ginsburg’s class to choice for Congress to make. Besides, prevent hyperlinks to Web sites containing neither the injunction against Corley nor the DeCSS is sobering, to say the least. DMCA itself prohibited fair use of en- crypted works. They only limited access, The U.S. government intervened in the and ability to copy. True, such limitations Corley case to defend the DMCA. Its make fair use more difficult. But, said the primary argument was that decryption court, “we know of no authority for the codes are simply not constitutionally proposition that fair use, as protected by protected expression. They are merely a the Copyright Act, much less the Constitu-
Why Copyright Today Threatens Intellectual Freedom29 tion, guarantees copying by the optimum court affirmed this controversial part of the method or in the identical format of the injunction, even though it is quite a stretch original.” to view the creation of a hyperlink as equivalent to distributing a circumvention Thus, although Corley insisted that the tool within the meaning of the DMCA. public “should not be relegated to a ‘horse and buggy’ technique in making fair use of More than a year after the industry’s DVD movies,” the appeals court judges victory in Corley, the Norwegian criminal noted that people can still, without tools like prosecution against young Jon Johansen – DeCSS, comment on encrypted films, known as “DVD Jon” – went to trial. In quote dialogue, and even record portions January 2003, Johansen, by now age 19, “by pointing a camera, a camcorder, or a was acquitted by a judge who ruled that he microphone at a monitor as it displays the had not violated any of Norway’s anti- DVD movie.”113 piracy laws by helping create the software, because DeCSS itself is merely a tool, not Here, though, the judges overlooked the an act of copyright piracy. But prosecutors, fact that without sophisticated and expen- “on behalf of Hollywood studios,” lodged sive equipment, it is not possible success- an appeal, and as of late 2003, Johansen fully to videotape images from a computer was facing a second trial in the Norwegian 114 or television set. appeals court.116
But whatever the credibility of their Soon after the Corley case ended, a proposed alternatives for exercising fair new battle over DeCSS erupted. A com- use rights, the judges in Corley were well pany called 321 Studios manufactures aware that the DMCA radically limits fair DVD Copy Plus, a product that cracks use, not to mention the lending and sharing CSS encryption and enables DVD buyers that are ordinarily allowed by the first sale to make backup copies. Backups are rule. They simply concluded that Congress prudent because DVDs are fragile, and had the authority to decide there was no many consumers like them because they other reasonably effective way of stopping can eliminate annoying previews and piracy. commercials. DVD Copy Plus basically consists of freely available software, It did not help that the judges were including DeCSS, with a detailed instruction irked by the defendants’ rebellious, anti- manual. 321 Studios went to court for a corporate style. Both the trial and appeals “declaratory judgment” that the product is court judges noted that 2600, the name of legal, after the MPAA threatened suit to Corley’s site, was the hertz frequency “of a stop its sale. signal that some hackers formerly used to explore the entire telephone system.” 321 argued that making a backup copy Furthermore, the trial court’s original order of a DVD that one already owns is a had simply prohibited posting DeCSS; it legitimate fair use, not an infringement of was extended to bar hyperlinks after copyright. Simply because its product might Corley defiantly announced his intention to be used for illegal copying, the company engage in “electronic civil disobedience” by said, is not sufficient reason to outlaw it, linking to other Web sites containing the any more than it would be sufficient reason program. By the summer of 2000, there to ban VCRs or photocopy machines. were nearly 500 such sites.115 The appeals Moreover, a movie on DVD may be in the
30 “The Progress of Science and Useful Arts” public domain, no longer protected by As of late 2003, Judge Illston had not copyright, and thus legal for anyone to made a decision. But as one reporter copy. To interpret the DMCA so broadly as commented: to criminalize tools that allow legitimate In many ways, the horse is out owners to copy public domain materials for of the barn. The DeCSS program their own use and convenience, said 321, is widely available on the Internet would not only shrink fair use but violate and users can make pirate copies the First Amendment.117 of any DVD. Despite legal The movie studios countered that DVD injunctions, many sites sell T-shirts Copy Plus is nothing more than a burglar’s with the outlaw code printed on tool, and hence violates the DMCA. By them. Until the studios obtained a this time, they had both the ElcomSoft and sealing order, the code was Corley decisions to rely on. But 321 was available in a case file at the Santa 119 able to make use of the Supreme Court’s Clara County Superior Court. recent Eldred decision in urging a nar- Yet another angle on DeCSS encryption rower interpretion of the DMCA. That is, involved not the DMCA but California the Court in Eldred rejected a First “trade secrets” law. In January 2000, Amendment challenge to Congress’s 20- responding to a suit by the movie industry, a year extension of copyright because it said California judge issued a preliminary that sufficient free-expression protections – injunction forbidding a number of Web sites such as fair use – are built into copyright from posting or distributing DeCSS, or any law. Without such protections, the copyright “master keys,” “algorithms,” or other system would no longer be consistent with information about DVD encryption the First Amendment. Interpreting the codes.120 This judge found that DVD DMCA so broadly as to ban such con- encryption is a “trade secret” and that sumer-friendly products as DVD Copy DeCSS reveals the secret, in violation of Plus would impermissibly upset the tradi- California law. tional copyright-free expression balance. Only one of the defendants, Andrew The 321 case was argued before Bunner, appealed. He won a reversal from federal Judge Susan Illston in May 2003. the California Court of Appeals, which said Although Judge Illston said she was leaning that computer programs like DeCSS are toward ruling for the studios, she had a few protected by the First Amendment, and that telling questions for their attorneys. She the order asked one of them “how, once a copyright banning their expires, a work would ever enter the public The judges in dissemination domain if studios continued to produce was an Corley were well encrypted copies?” A journalist reported unconstitu- that the attorney “didn’t have a good aware that the tional prior answer.” Likewise, the judge asked: DMCA radically restraint – “‘What about Siskel & Ebert?’ If a studio censoring limits fair use. refuses to cooperate, how could a movie “pure speech” reviewer include a clip?” The attorney before it happens. Prior restraints are responded that “‘fair use is not a constitu- “highly disfavored” as a matter of long- tional right.’”118 established First Amendment law; and the
Why Copyright Today Threatens Intellectual Freedom31 industry’s right to protect its “economically sale of a product called “Game Enhancer.” valuable trade secret,” the appeals court The product allowed users to play games said, is not “more fundamental” than free sold abroad on Sony playstations which are expression. If, later on, the industry actually programmed to recognize only games sold proved a violation of California trade domestically. Sony’s theory was that the secrets law, then the court allowed that a Enhancer circumvented copyrighted permanent injunction or money damages software in Sony’s playstation. But the would be appropriate.121 result was to reinforce Sony’s practice of limiting the use of its products to certain Not only the movie industry but many geographical areas. In addition, the En- other businesses were up in arms after this hancer allowed players to modify video ruling. Forty-two companies or organiza- games in a manner similar to Sony’s own tions filed briefs supporting the product, the “Game Shark.” The possibility association’s appeal to the California that Sony’s primary purpose in stopping the Supreme Court. Professor Richard Epstein, Enhancer was to defeat this competition who wrote a brief on behalf of Microsoft, got little sympathy from the court.124 Ford, and Boeing, among others, claimed that the appeals court ruling threatened “a Four years later, Lexmark International, wide range of trade secrets, from customer a manufacturer of computer printers, also lists to blueprints to industrial know-how – obtained a preliminary injunction, this time even the secret formula for Coca-Cola.”122 banning the distribution of a microchip that mimicks the “authentication sequence” in In August 2003, the California Supreme Lexmark’s toner cartridge. The chip Court reversed the appeals court’s expan- enables competitors to market remanu- sive First Amendment ruling, but in a way factured cartridges that work with that promised little consolation to the Lexmark printers. Lexmark persuaded a industry. A “trade secrets” injunction, even federal judge that the authentication a preliminary one, is not a prior restraint, sequence of its toner cartridge is a form of said the court, and does not present First encryption that needs to be unlocked in Amendment problems. But whether the order to access the copyrighted software in injunction was really justified in this case its computer printer. Under this convoluted was another matter. How can DeCSS be a reasoning, the competing microchip secret of any kind, asked the court, when it amounted to a circumvention tool banned is widely available on the Web? This was by the DMCA.125 the question for the court of appeals to decide “on remand.” One judge would not Representative Zoe Lofgren, one of the have bothered with a remand, since he relatively few members of Congress who thought it obvious that DeCSS was not a opposes the broad reach of the DMCA, “trade secret.”123 cited the Lexmark case as an example of digital rights management being pushed too SQUELCHING COMPETITION far. “We have ceded too much power to copyright owners,” Lofgren said. “People The DMCA has also become a weapon are afraid to proceed on innovative mea- for companies seeking to squelch competi- sures.”126 tion. In 1999, for example, the Sony Corporation’s video games division ob- Meanwhile, the maker of the competing tained a preliminary injunction stopping the microchip petitioned the U.S. Copyright
32 “The Progress of Science and Useful Arts” Office, already mulling over numerous project should have qualified as fair use, as requests for fair-use exemptions as part of well as First Amendment-protected expres- its second rulemaking proceeding under sion. Yet because he wanted to distribute the DMCA, to create an exemption for his decryption program so that others could computer programs that are embedded in access Bess’s block list, the ACLU said his printers and toner cartridges. In its petition, actions would violate the DMCA. It sued the company argued that Lexmark should N2H2, hoping to get a judicial declaration not be able to use the DMCA to stifle that the DMCA would be unconstitutional if competition. In October 2003, the Copy- applied to outlaw Edelman’s research. right Office rejected the request.127 N2H2, defending the suit, argued that RESEARCHING INTERNET FILTERS until Edelman had actually de-crypted its program, there was no live controversy for An example of how the DMCA affects the federal courts to resolve – in other both research and political advocacy was words, that the suit was premature. The the ACLU’s ill-fated lawsuit against N2H2, judge agreed, and in April 2003, dismissed manufacturer of a popular Internet filter the case. Edelman’s description of his called “Bess.” Filters are widely but intended research, the judge said, was too inaccurately promoted as efficient mecha- vague to determine whether it would really nisms for blocking out pornography and violate the DMCA, and it was equally 128 other controversial online content. A speculative whether N2H2 would sue to young cyber-expert, Ben Edelman, does stop him. research on the operation of filters, and has provided the public with information on But the underlying reason for dismissing their propensity to block thousands of the case may have been the judge’s lack of valuable, educational Web sites. sympathy with Edelman’s To conduct his research, and determine How can DeCSS claim. “There is be a secret of any how accurately Bess blocks online pornog- no plausibly raphy, Edelman needed to obtain its list of protected kind, asked the blocked sites. This in turn required him to constitutional court, when it is reverse engineer and unlock the filter’s interest that widely available copyright-protected program. And although Edelman can the Copyright Office has created an assert that on the Web? exception to the DMCA for those wanting outweighs to access Internet filter block lists, the N2H2’s right to protect its copyrighted exception doesn’t extend to the tools property from an invasive and destructive necessary to do the job. trespass,” he wrote.130
“In other words,” as the ACLU ex- Yet few free-expression issues today plained, “even though Ben and everyone are more sweeping in their implications else has a right to perform that act of than censorship caused by Internet filters circumvention, creating and distributing the as they block art, information, and ideas tool necessary for actually exercising that that their corporate manufacturers decide 129 right is prohibited.” Since Edelman’s are inappropriate, or that their keyword- purpose was “legitimate research and based programs mistakenly target. As criticism rather than piracy,” his planned another activist, Seth Finkelstein, put it,
Why Copyright Today Threatens Intellectual Freedom33 “independent investigation of the snake oil observed, “even the President’s Special claims” of filtering companies has now Advisor for Cybersecurity has expressed become “fraught with legal peril.”131 concern that the DMCA stifles legitimate research needed to improve homeland THE CIRCUMVENTION DILEMMA security.”134 The government’s attempt, in cases like Felten’s and Sklyarov’s, to The court of appeals in the Corley case distinguish between encryption research put its finger on the circumvention dilemma done for scholarly ends and research done when it identified “two unattractive alterna- for purposes of infringement is inherently tives”: either tolerate some infringement of unstable, and insufficient to let researchers intellectual freedom in an effort to stop or hackers know what is or is not a crime. piracy, or else “tolerate some decryption” in order to avoid trampling on free expres- The question is what can be done to sion. This “fundamental choice,” said the restore the balance. The lawyers for Eric court, “cannot be entirely avoided.”132 Corley suggested a number of ways the DMCA could be revised or narrowed, With the DMCA, Congress chose to while still combating piracy. Congress could impair a great deal of intellectual freedom keep the anti-circumvention rules but in an effort to stop circumvention tools that create broader exemptions for fair use and can be used by digital pirates. And although other non-infringing uses, especially in there is no perfect answer to the circum- libraries. It could limit liability “to those who vention dilemma, it seems clear that the intentionally aid and abet copyright infringe- DMCA strikes too repressive a bargain. ment or who conspire to infringe copy- rights,” as is done in laws governing In May 2002, the Electronic Frontier burglars’ tools. It could amend the law to Foundation published Unintended Conse- allow copying for personal, noncommercial quences, a report on the costs to intellec- purposes. And it could make disseminators tual freedom inflicted by the DMCA. In of decryption codes liable only if they addition to summarizing the Felten, Sky- “induced or acted in collusion with” copy- larov, and other cases, the report recounted right infringers.135 how a Dutch cryptographer and security systems analyst discovered a major secu- Many other measures could be consid- rity flaw in an Intel video encryption ered to redress the balance. What should system but declined to publish his findings be kept in mind is that copyright enforce- “on the grounds that he travels frequently ment will never be perfect, nor should it be. to the U.S. and is fearful of prosecution” As commentators have noted, a leaky under the DMCA. Other foreign scientists system is best, for culture and free expres- are similarly wary of traveling to the U.S., sion. The DMCA, in trying to plug every and the organizers of at least one major leak, ends up radically restructuring the academic conference have chosen to hold system. Its strict enforcement of the all future meetings abroad.133 industry’s efforts to control both illegal and legal uses of copyrighted material – as well There is no question that, in the inter- as uses that are in that dim gray area of ests of stopping illegal copying, the DMCA possibly fair use – sacrifices research, and related anti-circumvention laws stifle communication, creativity, and simple legitimate research, communication, and enjoyment in the dubious interests of use of creative works. As one columnist maximum profit and total control.
34 “The Progress of Science and Useful Arts” Chapter 4: File Sharing, Free Exchange, and the Online Commons
Napster and Its Successors up “for principles of academic freedom [and] free exchange of information.”137
Since the late 1990s, “peer-to-peer” Shortly afterwards, A&M Records, sharing of popular music has been the Geffen, Sony, and other music producers copyright industry’s most visible concern, sued Napster itself, claiming it was a and the Napster case was its first big “contributory and vicarious copyright attempt to stop it. As with DeCSS, the infringer.” With about 60 million users industry decided, at least initially, to go sharing nearly 40 million songs, they said, after the technology that enables file- Napster was a major threat to the integrity sharing rather than users of the technology of copyright. The judge agreed, and issued who actually engage in copyright infringe- a preliminary injunction barring Napster, ment. Inc. from “engaging in, or faciliating others in copying, downloading, uploading, trans- Napster was the brainchild of 19 year- mitting, or distributing” copyrighted mu- old Shawn Fanning who, by 2000, had sic.138 attracted $15 million in venture capital to support his “MusicShare” software and a Napster had two main defenses. First, it Web site that offered indexing and techni- argued that file-sharing was fair use, not cal help to music lovers wanting to share copyright infringement. After all, in the their digital “MP3” music files. The files Sony case involving VCRs, the Supreme themselves remained on their owners’ Court had said that copying an entire work computers, but Napster’s site and software can sometimes be fair use. Moreover, allowed searches through those computers, many fans used Napster to sample music in and enabled free transfers. Fanning said he order to decide whether to buy it, much as was merely a matchmaker, helping fans shoppers do with earphones and sample engage in the kind of sharing and copying disks in music stores. that had always transpired offline. But there was no question, as one columnist put But even assuming that many users it, that Napster was also “part of a move- were making unlawful copies, Napster said, ment challenging copyright.”136 it wasn’t guilty of “contributory” or “vicari- ous” infringement simply because its In 2000, the rock band Metallica fired software was being used for illegal pur- the first volley in the peer-to-peer wars by poses. Burglars use tools, but the manufac- suing Yale, Indiana University, and the turers of screwdrivers are not liable for University of Southern California for their illegal acts. Hence, Napster’s soft- allowing students to use Napster to copy ware was no more unlawful than tape songs. Yale promptly blocked access to recorders and other tools for copying Napster but the others, in the words of one music. A 1992 federal law, the Audio Home advocate, rejected the demand and stood Recording Act, protects such tape record-
Why Copyright Today Threatens Intellectual Freedom35 ing against claims of copyright infringe- Senator Orrin Hatch commented with ment.139 dismay on the process by which a prelimi- nary injunction – “before a trial on the The courts were not impressed. They merits, mind you” – destroyed an enter- found Napster guilty as charged because it prise “that had developed a community of had “sufficient knowledge” that infringe- over 50 million music fans.”142 ment was going on, its software contributed to the But the demise of Napster hardly ended illegal online file-sharing. New peer-to-peer activity, systems like Grokster, Morpheus, and and it had KaZaA soon replaced Napster. These the ability programs enable users to connect with “to police its system” but failed to do so. each other and share materials of all kinds, Importantly, though, the court of appeals including music, without a central Web site, did modify the preliminary injunction index, or overt conduct of the kind that against Napster, which it found to be too incriminated Napster. By 2002, more than broad. It was Napster’s conduct, not 14 million fans were using Grokster and simply its technology, that contributed to similar programs to download music, copyright infringement, said the appeals movies, TV shows, photos, and text for court. To find Napster guilty of copyright personal use.143 violations simply because it “allows for infringing uses would violate Sony and Another lawsuit was inevitable, and in potentially restrict activity unrelated to late 2001, 28 media companies sued the infringing use.”140 distributors of Grokster, Morpheus, and KaZaA for contributory copyright infringe- The appeals court thus ordered that the ment. MusicCity, the developer of injunction be narrowed because it was Morpheus, moved to dismiss the case, unfair to put “the entire burden” on arguing that under the Sony decision, Napster of ensuring that no copyright courts cannot ban technology that is infringement was going on through the use capable of lawful uses simply because it of its system. Instead, the music companies can also be used for infringement. had to tell Napster which of their copy- MusicCity pointed out, for example, that righted works were available on its system Morpheus file-sharing technology is used before Napster had the duty to delete by Project Gutenberg, a respected online them. archive, to convert many non-copyrighted works, “from the King James Bible to But even after the trial judge issued this Shakespeare to the CIA World Fact Book,” modified injunction, Napster was doomed. to digital form.144 Within a few months, the judge ordered a shutdown of the site until Napster removed In April 2003, the federal court agreed. all files from its index which it had “reason- It ruled that Morpheus and Grokster are able knowledge” contained copyrighted closer to VCRs and photocopy machines works. Even with a new filtering system in than to a centralized file-sharing service place, Napster wasn’t able to satisfy the like Napster. Although the distributors of court, and it eventually agreed to a $26 the programs undoubtedly know that many million settlement of the case. Soon after, it users are infringing copyrights, the judge went out of business.141 found no evidence that they assisted with
36 “The Progress of Science and Useful Arts” specific acts of infringement. And there are ways to distribute music, movies, and other “substantial noninfringing uses” for the file- arts online. Instead, he says, the industry, sharing software, he found – from distribut- dinosaur-like, tried to stop history. 148 ing free songs to “sharing the works of Shakespeare.”145 Eventually, music companies did set up Web sites where songs can be obtained As of late 2003, the industry’s appeal of online for modest fees. But intra-industry this decision was pending. But however the disagreements have hobbled these ven- Grokster case is ultimately decided, it is tures; some performers have been in- difficult to imagine that file-sharing technol- censed at their minuscule share of the ogy will ever be completely suppressed. royalties; and consumers have generally For one thing, online sharing and copying not been thrilled to find that they are only goes well beyond the borders of the United allowed to “rent” songs, which disappear States. Although StreamCast, the succes- after a set period of time and cannot be sor to MusicCity, is based in Tennessee and moved to portable MP3 players. In addi- Grokster is owned by a California family, tion, popular new recordings have been KaZaA, as of late 2002, was managed in kept out of the archives in an attempt to Australia and distributed by a company protect CD sales.149 incorporated on the South Pacific island of Vanuatu. Its computer servers were in Although efforts to package and sell Denmark and as The New York Times music online continue – including a promis- reported, “its software was last seen in ing venture by Apple in 2003 that is less Estonia.”146 restrictive than the earlier services – it is also true, as the industry says, that it is This global aspect means that courts in difficult for sites charging even small fees different nations will take different ap- to compete with free music. By the middle proaches to file-sharing. Early in 2002, for of 2003, KaZaA had reportedly been example, the Amsterdam Court of Justice downloaded more than 270 million times – in the Netherlands ruled that KaZaA is not more than any other free program on liable for the way individuals use its soft- Download.com.150 ware, and that those concerned with copyright violations should go after the Universities, New Lawsuits, and infringers, not the makers of tools.147 Even Corporate Sabotage if a U.S. appeals court – or, eventually, the Supreme Court – comes out the other way, its ruling will have limited effect in the face Even before the music industry lost the of the Dutch decision. Grokster case, it was exploring other ways to defeat file-sharing. In mid-2003, it sued Journalist John Alderman notes the four college students who, it claimed, were irony that by killing Napster, the music operating “little Napsters” at their universi- industry pushed fans toward more sophisti- ties. The students were using software like cated programs which replaced the central “Flatlan,” “Phynd,” and “Direct Connect” online meeting place with software that to index files and handle search requests. directly connects users to each other. He berates the industry for failing to embrace The lawsuits, which demanded dam- the new technology and find attractive ages of $150,000 for every work that was unlawfully copied – for a potential total of
Why Copyright Today Threatens Intellectual Freedom37 billions of dollars – were intended to send a Higher Education suggested that without clear message of intimidation, and they had a wholesale crackdown, universities could the desired effect. In little more than a still stop piracy by observing “unusual week, the students and their families settled spikes that might indicate that someone the suits, agreeing to pay the RIAA was illegally sharing the latest Ben Affleck $12,000-$15,000 each and to shut down the movie or Britney Spears video.”154 software programs.151 And, as the Electronic Privacy Informa- But these suits would not necessarily tion Center (EPIC) argued, the collegiate have been winners for the industry. The surveillance desired by the industry would technologies involved, as one expert said, require universities to “delve into the look “very different than the old Napster content and intended uses of almost every model.” Phynd, for example, “is a generic communication. Such a level of monitoring search engine technology that lets users is not only impracticable; it is incompatible configure it to search whatever they with intellectual freedom. ... Network want.” Flatlan “lets a student set up a monitoring for bandwidth management is search engine – often on an ordinary dorm appropriate, but monitoring of individuals’ room PC – that scours all computers activities does not comport with higher connected to a campus network that have education values.”155 Windows file-sharing turned on.” Unlike Napster or even KaZaA, “Flatlan searches In addition to pressuring universities, the a network that already exists.”152 industry fights file-sharing by sending “take-down” letters to both academic and One commentator noted that substitut- non-academic Internet service providers ing “www.google.com” for “wake.prince- (ISPs). The letters demand that the ISPs ton.edu” in one of the industry’s lawsuits remove Web sites, search engines, or other would describe the operation of the popular online material that they say contains search engine very well. “Can you use copyright-protected work. Under a section Google to find and download copyrighted of the DMCA, ISPs can be liable for materials? You betcha. ... But of course, copyright infringement by their users unless Google’s a fairly good-size company with a they comply “expeditiously” with such legal staff and would probably fight the industry notices.156 RIAA.”153 Of course, the industry’s claims are not The suits against college students always correct. Indeed, without a legal represented a major escalation in the file- proceeding to test their accuracy, it is sharing wars. The industry had been trying unlikely that they would be. for years to persuade universities to monitor students’ and professors’ computer For example, in May 2003, the RIAA use and crack down on copying. On the publicly apologized to an academic ISP, one hand, the trade associations said that Penn State University, for sending a “stiff “copyright infringement is theft, ... pure and copyright warning” that turned out to be simple.” On the other hand, there are mistaken. The letter alleged that the legitimate uses of peer-to-peer networks, university’s astronomy department was particularly in academia. These include the unlawfully distributing songs by the musi- sharing of scientific research and other cian Usher. The department’s system collaborative projects. The Chronicle of manager searched in vain for such a file,
38 “The Progress of Science and Useful Arts” and finally solved the mystery when he subscriber (“promptly” is all the DMCA discovered that a professor named Usher says), and many individuals do not have was mentioned on the site, along with a the legal knowledge or wherewithal to song “performed by astronomers about the follow the procedure laid out by the law. Swift gamma ray satellite, which Penn Meanwhile, the mandatory take-down may State helped to design.” The combination last indefinitely. It allows the industry to of “Usher” and the “.mp3” suffix had, short-circuit lengthy and burdensome according to one news report, “triggered lawsuits, but risks suppressing a great deal the RIAA’s automatic copyright crawl- of legitimate expression in the process. ers.”157 Most ISPs do not welcome take-down In another dubious application of the letters. They find the prospect of policing DMCA’s take-down provisions, the Inter- possible unlawful activity among their net company Verio, under pressure from billions of users to be distinctly unappealing Dow Chemical Company, removed the – somewhat like forcing the telephone activist service provider Thing.net from the company to listen in on users’ conversa- Web because of a parody press release tions for evidence of crime. But under the posted on the 18th anniversary of the DMCA, they do not have much choice. Bhopal disaster in India – “a deadpan statement, which many people took to be In 2002, one ISP challenged a part of real,” explaining that Dow “could not the DMCA’s notice-and-take-down accept responsibility for the disaster due to scheme. This provision allows copyright its primary allegiance to its shareholders owners to obtain subpoenas from a federal and to the bottom line.” Dow had sent a court requiring ISPs to identify users who, stern notice to Verio under the DMCA. the copyright owners claim, are engaged in The political commentary was silenced infringement. There does not need to be thanks to the DMCA’s automatic take- any pending lawsuit for the subpoenas to down provisions, overreaching by Dow, and be issued. Verizon went to court to contest Verio’s failure to challenge Dow’s claim an RIAA subpoena. that the parody constituted copyright and Verizon challenged both the constitu- trademark infringement. According to tionality of the DMCA’s subpoena provi- Thing.net, organizations affected by the sion, and the broad way that the RIAA take-down included the art space P.S.1, was interpreting it – to Artforum magazine, Tenant.net, which aids apply not just to Web renters facing eviction, and hundreds “Can you use sites, but to any online more.158 communication, even Google to find The DMCA does require ISPs to if the ISP is not and download “notify the subscriber” whose material has hosting it, but simply copyrighted been removed as a result of the notice-and- transmitting it. Verizon materials? You take-down rules. If the subscriber submits argued that the law a “counter-notification” in the form pre- contains no “built-in betcha.” scribed by the law, the ISP must then undo protection for expres- the removal, unless the company that sion” of the type that the Supreme Court originally complained goes to court.159 But specifically noted in the Eldred case was there is no time specified for notifying the an essential element of the copyright
Why Copyright Today Threatens Intellectual Freedom39 system. But a federal judge rejected Some observers questioned the wisdom Verizon’s arguments, and ordered it to of the industry’s hard-nosed strategy. As comply with the subpoena.160 As of late Professor Jane Ginsburg said: 2003, the case was on appeal. It could backfire. If you have really Meanwhile, relying on the Verizon widespread copyright infringement, decision, the RIAA now sent nearly 1,000 there is a great temptation to say if subpoenas to ISPs, including universities, it’s that widespread it can’t be demanding the names of users who it infringing any more. The risk of claimed were sharing copyrighted music. suing individuals is that there will be In response, Senator Norm Coleman more pressure in that direction.163 opened a legislative inquiry into whether the RIAA’s Mass lawsuits against music fans are EPIC Records tactics “are the most visible and controversial of music locked up violating the companies’ strategies, but quieter initiatives privacy rights are also underway. The industry continues advance copies of of innocent to develop new DRM techniques – for Tori Amos and people.” He example, Epic Records’ attempt in 2002 to Pearl Jam CDs by criticized the lock up advance copies of Tori Amos and RIAA for Pearl Jam CDs by gluing them inside Sony gluing them issuing subpoe- Walkman players that are then sent to inside Sony nas for “‘un- reviewers. One observer commented on Walkman players. suspecting this tactic: “even a ‘glueman’ player is grandparents unlikely to deter a diehard critic” who whose grandchildren have used their wants to copy or resell the disk. A reviewer personal computers.’” The New York said he was able to pop the player open, in Times quoted one parent who used KaZaA order to “listen to it how I want to listen to “to find songs that included ‘Happy Birth- it – and in my stereo is where it sounds day’ to play for his young daughter when best.”164 For the music industry to force she woke up on her birthday, among other reviewers less resourceful than this one to times. ‘It’s cute, but look what happened,’ evaluate new music by listening to it on a he said. ‘It’s an expensive birthday.’”161 Walkman instead of a home stereo does seem self-defeating. Although a few colleges and one ISP went to court to fight the subpoenas,162 Another plan, contemplated by the Walt most complied, supplying the industry with Disney Company in July 2003, involves the identifying information it needed to sue manufacturing DVDs that automatically individual file-sharers. In early September, stop working after a certain time. The idea, the RIAA filed 261 such suits – one of ostensibly, is to save consumers the trouble them against a 12 year-old girl – while of returning DVD rentals to their local simultaneously offering an “amnesty” to video store. One environmentalist noted anyone who would delete all shared files that the impact of disposable movies could and submit a statement swearing to resist be horrendous, “as millions of now useless all future file-sharing temptations. discs clog the landfills with nonbiode- gradable polymers.” Still other schemes
40 “The Progress of Science and Useful Arts” floated in 2003 include lowering the retail fraction of that amount to become sinfully prices of CDs, and urging legislation to rich anyway.”168 outlaw file-sharing on the theory that it enables minors to access pornography. 165 Similarly, John Alderman points out that through file-sharing, “songs and artists Finally, the industry has embarked on were rediscovered by listeners whose fond “direct action.” In 2002, journalists reported memories wouldn’t support a $16 CD but on a “cottage industry” of saboteurs, who were happy to download a song for a supported by media companies, who nostalgic listen.”169 In this scenario, no sale “saturate file-swapping networks with false is lost because none was likely in the first or corrupted versions of songs and videos, place. To the contrary, the triggering of hoping to frustrate would-be download- fond memories might lead to a purchase ers.”166 The next year, the industry took its that would not otherwise happen. campaign one step further, by “quietly financing the development and testing of Surveys late in 2002 indicated that software programs that would sabotage the although music sales were down about computers and Internet connections of 10% for the year, it was not clear that file- people who download pirated music.” The sharing – rather than a slow economy or proposed sabotage could take three forms: other factors – was responsible. According redirecting users to Web sites where they to one report, 32% of Internet downloaders can buy songs; scanning personal comput- said they bought less music since they ers for music files that might be illegally began file-sharing online, but 25% said they copied and then deleting them; or freezing bought more. Another survey found that a person’s computer system entirely. The people who use file-sharing have increased second option, one executive admitted, was their overall spending on tapes and CDs: problematic because “it was deleting “47% of experienced file sharers with legitimate music files, too.”167 broadband Internet access and CD burners increased their spending, while 36% Solutions: Restoring the Copy- decreased their spending.” A report late in 2002 suggested that old-fashioned bootleg- right/Free Expression Balance ging, rather than online file-sharing, was a more likely factor in the decline of music Many critics argue that online file- sales.170 sharing, whether or not every instance of it violates copyright law, actually helps rather As for the potential loss to musicians than harms the music industry. Negativ- from file-sharing, some commentators land, a group of activist musicians, says suggest exploring alternative payment that “the literally unconsumable plethora” options. Back in the 1960s, the Grateful of free music online “does create sales.” Dead promoted free circulation of bootleg Free music is “excellent advertising,” tapes, believing that more sales of concert which produces enough new sales to tickets would result.171 More recently, balance out losses caused by file-sharing. Pearl Jam left Sony’s Epic label and “is “The amount of free music downloading now a prominent member of the indepen- going on (perhaps now in the billions) dent music scene, with no other means of really scares the recording industry, but distribution” than the Internet. And they seem to forget the scales of practical- Metallica, once a vocal opponent of online ity involved. They only need to sell a
Why Copyright Today Threatens Intellectual Freedom41 file-sharing, by 2003 had released some atrophy fair use and first-sale rights already songs for free online.172 compromised by the DMCA,175 software manufacturers struck a deal with the music But the industry has continued to push industry. The manufacturers agreed not to Congress for stronger copyright protection support legislation such as that championed and stricter enforcement. In late 2001, by Representative Rick Boucher, that Senator Fritz Hollings introduced a bill that would “clarify and bolster the right of would have required “security technolo- people to use copyrighted material in the gies” in all new digital products – including digital age,” while in return the recording CDs, videos, e-books, printers, hard drives, companies backed off from Hollings’s CD and DVD players, video game con- proposal.176 soles, set-top cable boxes, and satellite TV. Anyone removing or altering the locks, or But legislative support for the industry distributing copyrighted material with the continues. By mid-2003 seven states had locks disabled, would face the usual passed “super DMCAs” that are even copyright penalties of five years in prison broader than the original, federal version. and fines up to $500,000 for a first offense; The year before, Representative Howard double that for subsequent offenses.173 Berman proposed a “Peer to Peer Piracy Prevention Act” to create “a safe harbor Even more than the DMCA, Hollings’s from liability” for media companies engag- bill would have eliminated the balancing ing in “reasonable, limited self-help mea- role traditionally performed by courts in sures to thwart P2P piracy” – that is, copyright cases, by giving the force of law sabotaging personal computers and soft- to private security systems and punishing ware if they believe their owners are those who evade or disable them, regard- violating copyright law.177 less of the impact on fair use or intellectual freedom. The basic problem with this Whatever the outcome of all the approach is that DRM technologies cannot lawsuits, lobbying, and proposed new laws, possibly take account of the variations and it is clear that, thanks to the Internet, our subtleties of copyright law, and particularly culture has fundamentally changed. As fair use. hard as the industry pushes to control how its products are used, new ways of copying As copyright expert Deirdre Mulligan and sharing emerge. “In the long run,” as explains, “only those policies that can be one scholar says, “the media industry may reliably reduced to yes/no decisions can be well exhaust itself in a Quixotic quest to automated successfully. ... Policies that are keep the ever growing and ever more subject to many exemptions or based on sophisticated digital genie bottled up.”178 conditions that may be indeterminate or external are difficult or impossible to Especially in the age of the Internet, automate with DRM.”174 with its potential for massive sharing and copying, more balanced approaches are Hollings’s proposal was not greeted possible. The lawyers representing Eric happily by cyber-activists or, more signifi- Corley gave some examples. (See “The cant politically, by manufacturers. While Circumvention Dilemma,” in chapter III.) groups such as StopPoliceware.org and Attorney David Nimmer suggests others: Boycott-riaa.com argued that Hollings’s Congress could require companies that mandatory “policeware” would hopelessly encrypt copyrighted works to provide a
42 “The Progress of Science and Useful Arts” means of unlocking them for legitimate other corporations and public interest first-sale or fair-use purposes. It could also groups.182 protect consumers from legal liability if they find themselves “stymied by over- As Boucher has written, clickwrap reaching on the part of content owners,” licenses and other forms of digital rights and resort to “self-help.”179 management, backed up with enforcement tools like the DMCA, are endangering free Some of Nimmer’s ideas have been expression. From “the college student who adopted by Representatives Rick Boucher photocopies a page from a library book or and Zoe Lofgren, two of a growing contin- prints an article from a newspaper’s Web gent in Congress who recognize that the site for use in writing a report, to the imbalance in current copyright law is newspaper reporter excerpting materials unhealthy and are working to change it. In from a document for a 2002, Boucher and two colleagues filed story,” Boucher said, “the legislation that would have ameliorated very vibrancy of our democ- some of the more drastic terms of the racy is dependent upon the DMCA. Their bill would have exempted information availability and from the law anyone who “is acting solely use facilitated by the fair-use in furtherance of scientific research into doctrine.” And if the direc- technological protection measures,” as well tion of U.S. copyright policy as any circumvention for purposes of fair doesn’t change, he warned, use. Following the Sony case, it would also “a time may soon come have legalized the manufacture or distribu- when what is available for tion of “a hardware or software product free on library shelves will only be available capable of enabling significant non-infring- on a ‘pay per use’ basis.”183 ing use of the copyrighted work.”180 Lawrence Lessig adds that mandatory Another bill, filed by Representative licensing of music online – that is, requiring Lofgren, stated that it would “restore the copyright owners to allow the replay or traditional balance between copyright copying of their products in exchange for a holders and society” by allowing circum- reasonable fee – would provide the indus- vention for fair use purposes – unless the try with compensation while stopping its copyright owner makes tools available to attempts to shut down the Groksters of the do this without additional cost. Lofgren’s world.184 Mandatory licensing is a standard bill would also have allowed the manufac- feature of music on radio. ture and distribution of circumvention tools that are “necessary to enable a non- Legislation was also filed in 2003 to infringing use.”181 address the wreckage left by the Supreme Court’s Eldred v. Ashcroft decision. Although neither bill passed in 2002, Adopting Lessig’s proposal that copyright legislative efforts are continuing. Boucher owners be required to renew after a reintroduced his “Digital Media Consum- certain time, so that works without com- ers’ Rights Act” in 2003, with support from mercial value can enter the public domain Intel, Verizon, Sun Microsystems, the sooner, Representative Lofgren introduced American Library Association, the Ameri- the “Public Domain Enhancement Act” of can Association of Universities, the Na- 2003. It would require copyright holders to tional Humanities Alliance, and several pay a $1 renewal fee after 50 years, and
Why Copyright Today Threatens Intellectual Freedom43 again every ten years, until the end of the his fortune with the Lotus spreadsheet, copyright term.185 formed the “Open Source Applications Foundation” to create and distribute free Non-legislative efforts to relax some of software for e-mail programs, file-sharing, the more oppressive features of the current and other collaborations. The foundation system are also gaining momentum. The offers its software for free to individuals or open source movement, for example, organizations, provided they reciprocate by works to make source code (the human- making programs they produce with the readable building blocks of software) foundation’s software freely available as available to all who use computer pro- well.188 grams. The open source Linux operating system has become an increasingly popular Earlier in 2002, Lessig and his col- alternative to Microsoft. leagues began another organization, Cre- ative Commons, with the goal of enlarging Microsoft and other manufacturers are the public domain. Their first project was to aware of the challenge posed by Linux. In design licensing agreements that would May 2002, they formed the “Initiative for allow works to be copied and used well Software Choice” to combat the increasing before their copyright term expires. Musi- number of legislative proposals and state- cians interested in building an audience and ments from foreign governments promoting visual artists wanting to disseminate their open source software. The industry group work can license it for noncommercial said it simply wanted “even-handed compe- copying. “Inspired in part by the free- tition,” but Bruce Perens, a strategist who software movement,” they explained, was fired by Hewlett-Packard because of “which has attracted thousands of computer his open source advocacy, said the group’s programmers to contribute their work to the real purpose was to quash competition public domain, Creative Commons plans to from Linux. Perens formed his own create a ‘conservancy’ for donations of organization, “Sincere Choice,” to advocate valuable intellectual property whose owners for governments to buy software “that might opt for a tax break rather than selling operates well with other programs.” The it into private hands.”189 issue is crucial, he says, because software giants like Microsoft “have huge toll booths A similar project, developed by the Soros on the Internet that can limit the spread of Foundation, aims to counter the increasing open source software.”186 commercialization of academic publishing, with its often prohibitive subscription fees, Promoters of open source software by encouraging scholars and universities to have also questioned the generosity of create open-access journals and “self- Microsoft’s gifts to nonprofits, which may archiving” programs. The goal is to make amount to $1 billion annually. Making research and education more accessible, schools and other potentially big buyers of “share the learning of the rich with the poor computer technology dependent on and the poor with the rich,” and “lay the Microsoft through gifts obviously inhibits foundation for uniting humanity in a com- their ability to choose open source alterna- mon intellectual conversation and quest for tives down the road.187 knowledge.”190
In October 2002, Mitch Kapor, a Yet another recently formed organiza- longtime open source supporter who made tion, Public Knowledge, states as its
44 “The Progress of Science and Useful Arts” purpose to make intellectual property law house offers information on fair use for “serve democracy, science, and culture.” It Internet sites catering to music or movie combines research with activism, working fans or otherwise containing copyrighted or with librarians, computer scientists, and trademark-protected images. Many of the others to challenge parts of the DMCA. It sites criticize, parody, or protest the con- also advocates with the U.S. Patent Office duct of corporate trademark owners. The for policies that will advance scientific database maintains an archive of “cease- research and public health.191 and-desist” letters that corporate copyright owners frequently use in efforts to shut The Electronic Frontier Foundation has down offending Web sites – for example, a also been a leader in promoting alternatives letter accusing the anti-corporate sites to a heavily controlled copyright system. In “EnronownstheGOP.org” and “Radioslack. addition to providing exhaustive information com” of intellectual property infringe- on copyright battles, EFF’s Web site gives ment.193 advice on the uses and limits of file-sharing and circumvention technology. 192 Seltzer says the Clearinghouse aims to “protect free expression against unwar- EFF also collaborates with Harvard’s ranted legal threats by collecting and Berkman Center and law clinics at other analyzing cease-and-desist notices sent to universities on the Chilling Effects Clear- Internet users,” and helping them under- inghouse. The brainchild of Berkman stand their rights in response.194 Center fellow Wendy Seltzer, the Clearing-
“Notmickey,” by Ashley Holt
Why Copyright Today Threatens Intellectual Freedom45 Conclusion
Copyright enforcement will never be In 1918, Justice Louis Brandeis wrote perfect, nor should it be. Whether or not that “the noblest of human productions – circumventing digital locks or copying knowledge, truths ascertained, conceptions, songs, pictures, or articles for friends and and ideas – become, after voluntary colleagues are technical violations of communication to others, free as the air to copyright law, much of this activity has common use.” These “incorporeal produc- been “below the radar” in the past, and tions,” he said, should have “the attribute of has not prevented publishers, music property” only “in certain classes of cases producers, or other media companies from where public policy has seemed to demand enjoying healthy profits. The legitimate it.”195 goal of stopping commercial piracy should not be an excuse for turning the Internet Today, public policy has stretched “the and popular culture into highly restricted attribute of property” too far, and as a and heavily controlled corporate domains result has skewed the “difficult balance” of or making criminals of computer scientists copyright law. Increasingly, readers, and music-loving teenagers. writers, artists, librarians, scholars, and many other citizens are recognizing what is at stake.
46 “The Progress of Science and Useful Arts” Recommendations
q 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. Alternatively, require that heirs and corporations file notices 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 50 years, and every ten years thereafter, as proposed by Representative Lofgren.
q Repeal the “tools” provisions of the DMCA, or at least, exempt anyone whose purpose is political commentary or scientific research. Legalize the manufacture or distribution of circumvention tools that permit “significant non-infringing use” of copyrighted works.
q Create broader exemptions for fair use under the DMCA. Limit liability for circumvention to those who intentionally aid copyright infringement. Alternatively, interpret the law narrowly to bar only conventional circumvention devices such as “black boxes,” and not to censor computer code.196
q Recognize that much copying done for personal, noncommercial purposes is fair use.
q Require copyright owners to license music and other creative work online on reasonable, nondiscriminatory terms.
q Eliminate the DMCA requirement that Internet service providers and search engines remove disputed content from their servers based simply on a demand letter from a copyright owner. Eliminate ISP liability for copyright infringement by their users unless they intentionally assist with infringement.197
q Outlaw the industry practice of encrypting portions of works that are not copyright-protected – for example, the original text of public domain works.198
q Encourage alternatives to lengthy copyright terms through Creative Commons and similar projects.
Why Copyright Today Threatens Intellectual Freedom47 public by sale or other transfer of ownership, or ENDNOTES by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic 1. Harper & Row Publishers, Inc. v. Nation works, pantomimes, and motion pictures and Enterprises, 471 U.S. 539, 558 (1985). other audiovisual works, to perform the copyrighted work publicly; (5) in the case of 2. Sony Corp. of America v. Universal City literary, musical, dramatic, and choreographic Studios, Inc., 464 U.S. 417, 429 (1984). works, pantomimes, and pictorial, graphic, or 3. U.S. Constitution, article I, §8, clause 8. sculptural works, including the individual images of a motion picture or other audiovisual 4. See Jane Ginsburg, “Copyright and Control work, to display the copyrighted work publicly; Over New Technologies of Dissemination,” 101 and (6) in the case of sound recordings, to Columbia Law Review 1613, 1622 (2001); perform the copyrighted work publicly by Twentieth Century Music Corp. v. Aiken, 422 means of a digital audio transmission.” U.S. 151 (1975). Marcus Errico, “Okay, Six Choruses of ‘Kumbaya’ – That’ll Be $1.50,” 8. Sony Corp. of America v. Universal City Eonline, Aug. 24, 1996, http://www. Studios, Inc., 464 U.S. 417, 442, 432, 446 (1984). eonline.com/News/Items/0,1,109,00.html 9. James Surowiecki, “Patent Bending,” The (accessed 9/12/03); “ASCAP Clarifies Position New Yorker, July 14-21, 2003, p. 36. on Music in Girl Scout Camps,” ASCAP press release, www.ascap.com/press/1996/ascap- 10. Lawrence Lessig, The Future of Ideas: The 082696.html (accessed 10/25/02); James Fate of the Commons in a Connected World Surowiecki, “Righting Copywrongs,” The New (New York: Random House, 2001), p. 95. Yorker, Jan. 21, 2002, p. 27; Jonathan Zittrain, “The Copyright Cage,” Legal Affairs, July/ 11. Siva Vaidhyanathan, Copyrights and Aug. 2003, www.legalaffairs.org/issues/July- Copywrongs: The Rise of Intellectual Property August-2003/feature_zittrain_julaug03.html and How It Threatens Creativity (New York: (accessed 7/16/03) (reporting that ASCAP NYU Press, 2001), pp. 11-12. See also Benjamin “now charges the Scouts $1 a year, foregoing Kaplan, An Unhurried View of Copyright (New real profits while making it clear that the girls York: Columbia U. Press, 1967), p. 74 (“to say sing only by ASCAP’s belatedly good that copyright is ‘property,’ although a funda- graces”). mentally unhistorical statement, would not be boldly misdescriptive if one were prepared to 5. Pamela Samuelson, “The Copyright Grab,” acknowledge that there is property and 1995, www.negativland.com/white.html property, with few if any legal consequences (accessed 9/12/03); see also Paul Goldstein, extending uniformly to all species and that in Copyright’s Highway: The Law and Lore of practice the lively questions are likely to be Copyright From Gutenberg to the Celestial whether certain consequences ought to attach Jukebox (New York: Hill & Wang, 1994), pp. 39- to a given piece of so-called property in given 45. circumstances”).
6. 8-8 Nimmer on Copyright A, Appendix 8, §A, 12. See Robert Kunstadt, “Fair Use Should Not Renewal Term Extensions Under the 1909 Die,” National Law Journal, Nov. 11, 2002, p. Copyright Act. A16 (describing the industry practice of encrypting both new introductory material and 7. 17 U.S. Code §106 sets out the nature of the public domain material). exclusive right: “(1) to reproduce the copy- righted work in copies or phonorecords; (2) to 13. Dave Wilson & Jon Healey, “CDs That prepare derivative works based upon the Block Copying May Herald a Revolution,” Los copyrighted work; (3) to distribute copies or Angeles Times, Jan. 6, 2002, www.latimes.com/ phonorecords of the copyrighted work to the
48 “The Progress of Science and Useful Arts” business/la-010601copy.story (accessed 1/6/ 22. Worldwide Church of God v. Philadelphia 02). Church of God, 227 F.3d 1110 (9th Cir. 2000), cert. denied, 532 U.S. 958 (2001). 14. Brenda Sandburg, “Fair Use Fears Over Federal Circuit Ruling,” The Recorder, Oct. 8, 23. Mattel, Inc. v. MCA Records, Inc. 296 F.3d 2002, www.law.com/jsp/article.jsp?id= 894, 904 (9th Cir. 2002), cert. denied, 123 S.Ct. 1032128694823 (accessed 10/8/02). 993 (2003).
15. Feist Publications, Inc. v. Rural Tel. Service 24. See “Phish Fan Web Site Policy,” Co., 499 U.S. 340, 363-64, 349 (1991). The idea/ www.phish.com/guidelines/index.php?category expression dichotomy is reflected in the =2 (accessed 9/20/03); Julie Keller, “Buffy copyright law, 17 U.S. Code §102(b). On the Cyberfans Slayed By Fox,” Eonline.com, Dec. four main free-expression safety valves, see 23, 1999, www.eonline.com/News/Items/Pf/ Yochai Benkler, “Free as the Air to Common 0,1527,5782.00.html (accessed 9/8/03); Letter Use: First Amendment Constraints on Enclo- from Warner Brothers to Jonathon Woodward, sure of the Public Domain,” 74 N.Y.U. Law Nov. 8 1995, www.io.com/~woodward/@cme/ Review 354 (1999). served.txt (accessed 9/8/03).
16. Whelan Associates, Inc. v. Jaslow Dental 25. See Wal-Mart Stores, Inc. v. Laboratory, Inc., 797 F.2d 1222, 1248 (3d Cir. wallmartcanadasucks.com, Case No. D2000- 1986), cert. denied, 479 U.S. 1031 (1987); 4-13 1104, WIPO Arbitration and Mediation Center, Nimmer on Copyright §13.03[A][1][d]. Nov. 23, 2000; Diageo plc v. John Zuccarini, Case No. D2000-0996, WIPO Arbitration and 17. 4-13 Nimmer on Copyright §13.03[A][1][b]. Mediation Center, Oct. 22, 2000. In the Zuccarini case and an earlier case involving a 18. Campbell v. Acuff-Rose Music, Inc., 510 U.S. number of variations on “Wal-Mart sucks,” the 569 (1994). WIPO judges found the corporate critics guilty of harassing the company rather than genuinely 19. Harper & Row Publishers, Inc. v. Nation wanting to exercise free-speech rights. But a Enterprises, 471 U.S. 539 (1985), id., 579 dissenting judge argued, in a case involving (Justices Brennan, White, & Marshall dissent- “vivendiuniversalsucks.com,” that bad behav- ing). ior should not be a relevant consideration where the result of a mandatory domain name 20. See SunTrust Bank v. Houghton Mifflin Co., transfer is to allow corporations to acquire and 136 F. Supp.2d 1357 (N.D.Ga. 2001), vacated, then suppress “sucks.com” Internet addresses, 252 F.3d 1165 (11th Cir. 2001), reversed, 268 F.3d which are well-known for political commentary. 1257 (11th Cir. 2001); Wendy Gordon, “Authors, Vivendi Universal v. Mr. Jay David Sallen, Publishers, and Public Goods: Trading Gold for Case No. D2001-1121, WIPO Arbitration and Dross,” 36 Loyola of Los Angeles Law Review, Mediation Center, Nov. 7, 2001. fall 2002, llr.lls.edu/eldred/ gordon.pdf (ac- cessed 7/29/03), p. 20. The case later settled: the 26. Bally Total Fitness Holding Corp. v. Faber, Mitchell estate agreed to drop its suit and in 29 F. Supp.2d 1161, 1166 (C.D. Cal. 1998). exchange, Randall’s publisher made a contribu- tion to Morehouse College in Atlanta. Ameri- 27. For a sampling of such cease-and-desist can Library Association Newsletter on letters, see Chilling Effects Clearinghouse, Intellectual Freedom, July 2002, p. 177. www.chillingeffects.org (accessed 10/16/02). Parodists are not always intimidated by 21. Religious Technology Center v. Henson, threatening letters. For example, a letter sent by 1999 U.S.App.LEXIS 11828 (9th Cir. 1999), cert. lawyers for Vice President Dick Cheney in early denied, 528 U.S. 1105 (2000). 2003 to the managers of a site parodying the Bush Administration asserted that images of
Why Copyright Today Threatens Intellectual Freedom49 Lynne Cheney with a red clown nose consti- 35. Computer Software Rental Amendments Act tuted an unlawful use of her “name and picture of 1990, 17 U.S. Code §109(b); see 2-8 Nimmer for purposes of trade” and portrayed her “in a on Copyright §8.12. false light.” The New York Civil Liberties Union vowed to provide a First Amendment defense 36. 2-8 Nimmer on Copyright §8.12. for the parodists if Cheney made good on his threat to sue. Benjamin Weiser, “Web Site Hears 37. Joseph Story, 3 Commentaries on the From Cheney After Parody Involving Wife,” Constitution of the United States §1147 New York Times, Mar. 6, 2003, p. A24. (Boston: Hilliard Gray & Co., 1833) (emphasis added). 28. Grand Upright Music Ltd. v. Warner Brothers Records, Inc., 780 F. Supp. 182 38. Jessica Litman, “The Public Domain,” 39 (S.D.N.Y. 1991) (finding Biz Markie album “I Emory Law Journal 965, 966 (1990). Need a Haircut” violated copyright by using three words and some music from “Alone Again 39. Emerson v. Davies, 8 F. Cas. 615, 619 (No. (Naturally)” by Gilbert O’Sullivan). Some later 4,436) (C.C.D. Mass. 1845), quoted in Campbell cases reject this rigid approach and look to v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 whether the sampling involves “substantial (1994). similarity” or only “fragmented literal similarity” to the original work. E.g., Williams v. Broadus, 40. See Siva Vaidhyanathan, Copyrights and 2001 U.S. Dist. LEXIS 12894 (S.D.N.Y. 2001); Copywrongs: The Rise of Intellectual Property Bridgeport Music v. Dimension Films, 230 F. and How It Threatens Creativity (New York: Supp.2d 830 (M.D. Tenn. 2002). NYU Press, 2001), pp. 117-48; Brief of Amici Curiae National Writers Union et al. in Support 29. The four main factors that determine of Petitioners, Eldred v. Ashcroft, No. 01-618 whether the fair use defense will defeat a claim (S.Ct., 2001 Term), p. 11. of copyright infringement are: “(1) the purpose and character of the use; (2) the nature of the 41. Written testimony of Dennis Karjala before copyrighted work; (3) the substantiality of the House of Representatives Committee on the portion used in relation to the copyrighted work Judiciary, Subcommittee on Courts and Intellec- as a whole;” and “(4) the effect on the potential tual Property, on H.R. 989 (July 13, 1995), n.8, market for or value of the copyrighted work.” 17 reprinted in The Copyright Term Extension Act U.S. Code §107. of 1995, Hearing Before the Committee on the Judiciary, United States Senate, on S. 483, 30. Edward Felten, “A Skeptical View of DRM 104th Congress, 1st Session (Sept. 20, 1995), p. and Fair Use,” Communications of the ACM, 83 n.8; Joyce Wadler, “The Play’s His Thing, Apr. 2003, Vol. 46, No. 4, pp. 57, 58. Even if You Never Heard of It,” New York Times, Oct. 9, 2002, p. A28; Frances 31. The first sale doctrine is codified in the McCullough letter, “Sylvia Plath’s Journals,” copyright law: 17 U.S. Code §109(a). New York Review of Books, Jan. 18, 1990; Janet Malcolm, The Silent Woman: Sylvia Plath and 32. Miracle Editions, Inc. v. Albuquerque A.R.T. Ted Hughes (New York: Knopf, 1994). Co., 856 F.2d 1341 (9th Cir. 1988), cert. denied, 489 U.S. 1018 (1989); Lee v. Deck the Walls, 925 42. See Minority Views of Senator Hank Brown, F. Supp. 576 (N.D. Ill. 1996). Report of the Senate Committee on the Judiciary on the CTEA, Senate Report No. 104- 33. Adobe Systems v. One Stop Micro, Inc., 84 F. 315, 104th Congress, 2d Session (July 10, 1996), Supp.2d 1086 (N.D. Cal. 2000). p. 34 (new editions of My Antonia in 1994 cost “from $2 to $24, thereby making the story 34. 17 U.S. Code §109(b); for the history of this available to many more people”). exception to the first sale rule, see 2-8 Nimmer on Copyright §8.12.
50 “The Progress of Science and Useful Arts” 43. Scott Martin, “The Mythology of the Public tion,” 36 Loyola of Los Angeles Law Review, Domain: Exploring the Myths Behind Attacks on fall 2002, llr.lls.edu/volumes/v36-issue1/martin- the Duration of Copyright Protection,” 36 original1.pdf (accessed 7/29/03), pp. 123-26. Loyola of Los Angeles Law Review, fall 2002, Martin also argues that even after term exten- llr.lls.edu/volumes/v36-issue1/martin- sion, Disney would not have lost its trademark original1.pdf (accessed 7/29/03), pp. 40-43. rights to control uses of Mickey’s image.
44. Id. 52. Daren Fonda, “Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too 45. “It’s a Wonderful Life,” www.filmsite.org/ Far,” Boston Globe Magazine, Aug. 29. 1999, p. itsa.html (accessed 12/31/02). 12; Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), p. 33 46. Statement of Professor Peter Jaszi, printed in n.10. The Copyright Term Extension Act of 1995, Hearing Before the Committee on the Judiciary, 53. Daren Fonda, “Copyright Crusader Eric United States Senate, on S. 483, 104th Con- Eldred Says the Latest Copyright Law Goes Too gress, 1st Session (Sept. 20, 1995), p. 72. Far,” Boston Globe Magazine, Aug. 29. 1999, p. 12; Linda Greenhouse, “Justices to Review 47. Act of Feb. 3, 1831, ch. 16, §16, 4 Stat. 439; Copyright Extension,” New York Times, Feb. 20, Act of Mar. 4, 1909, ch. 320, §§23-24, 35 Stat. 2002, pp. C1, C6 (“[t]he 1998 extension was a 1080-81. result of intense lobbying by a group of powerful corporate copyright holders, most 48. Public Law 87-668, 76 Stat. 555 (1962); Public visibly Disney”). Law 89-142, 79 Stat. 581 (1965); Public Law 90- 141, 81 Stat. 464 (1967); Public Law 90-416, 82 54. Statement of Mary Bono, in 144 Congres- Stat. 397 (1968); Public Law 91-147, 83 Stat. 360 sional Record H9946, 9952 (Oct. 7, 1998). (1969); Public Law 91-555, 84 Stat. 1441 (1970); Public Law 92-170, 85 Stat. 490 (1971); Public 55. Brief for Petitioners, Eldred v. Ashcroft, No. Law 92-566, 86 Stat. 1181 (1972); Public Law 93- 01-618 (S.Ct., 2001 Term), pp. 7, 46, citing 573, Title I, §104, 88 Stat. 1873 (1974). Edward Rappaport, “Copyright Term Extension: Estimating the Economic Values,” Congres- 49. Public Law 94-553, §304, 90 Stat. 2572 (1976). sional Research Service Report for Congress (May 11, 1998), pp. 8-16. 50. Corporate copyrights are generally the result of works made for hire – that is, made by 56. Daren Fonda, “Copyright Crusader Eric corporate employees or contractors. The Sonny Eldred Says the Latest Copyright Law Goes Too Bono law made the term for such works 95 years Far,” Boston Globe Magazine, Aug. 29. 1999, p. from the date of first publication or 120 years 12; Brief of Amici Curiae the Internet Archive, from the date of creation, whichever expires first. Prelinger Archives, and Project Gutenberg This also applies to anonymous or pseudony- Literary Archive Foundation Filed on Behalf of mous works. Public Law 105-298, §102, 112 Stat. Petitioners, Eldred v. Ashcroft, No. 01-618 2827 (1998), amending 17 U.S. Code §§301-304. (S.Ct., May 20, 2002), p. 12.
51. James Surowiecki, “Righting Copywrongs,” 57. Brief of College Art Association, et al. as The New Yorker, Jan. 21, 2002, p. 27. Some say, Amici Curiae in Support of Petitioners, Eldred however, that Mickey Mouse changed suffi- v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. ciently after Steamboat Willie so that Disney’s 13, 7-10. The other signers of this brief were the copyright on the image would not have expired Visual Resources Association, National in 2003. See Scott Martin, “The Mythology of Humanities Alliance, Consortium of College and the Public Domain: Exploring the Myths Behind University Media Centers, and National Attacks on the Duration of Copyright Protec- Initiative for a Networked Cultural Heritage.
Why Copyright Today Threatens Intellectual Freedom51 58. Andrea Foster, “A Bookworm’s Battle,” cal Association, American Library Association, Chronicle of Higher Education, Oct. 25, 2002, Art Libraries Society of North America, Asso- p. A35. ciation for Recorded Sound Collections, Association of Research Libraries, Council on 59. Lawrence Lessig, The Future of Ideas: The Library and Information Resources, Interna- Fate of the Commons in a Connected World tional Association of Jazz Record Collectors, (New York: Random House, 2001), p. 122. Midwest Archives Conference, Music Library Association, National Council on Public 60. Andrea Foster, “A Bookworm’s Battle,” History, Society for American Music, Society of Chronicle of Higher Education, Oct. 25, 2002, American Archivists, and Special Libraries p. A35; Daren Fonda, “Copyright Crusader Eric Association. The Sonny Bono law’s library Eldred Says the Latest Copyright Law Goes Too exemption is found in 17 U.S. Code §108(h). It Far,” Boston Globe Magazine, Aug. 29. 1999, p. added to a section of the existing copyright law 12. that permits libraries to make limited copies for purposes of preservation or replacement, and 61. Daren Fonda, “Copyright Crusader Eric allows patrons to make isolated, occasional Eldred Says the Latest Copyright Law Goes Too copies as long as libraries post copyright Far,” Boston Globe Magazine, Aug. 29. 1999, p. warnings near the photocopy machines. 17 U.S. 12; Brief for Petitioners, Eldred v. Ashcroft, No. Code §108 (a)-(g). 01-618 (S.Ct., 2001 Term), pp. 3-5.
62. Eldred v. Reno, 239 F.3d 372, 375-76 (D.C. 68. Brief for the Respondent, Eldred v. Ashcroft, Cir. 2001), affirmed, 123 S.Ct. 769 (2003); id. at No. 01-618 (S.Ct., Aug. 2002), p. 46. 381-82 (Judge Sentelle dissenting). 69. Brief Amici Curiae of Dr. Seuss Enterprises, 63. Emily Newburger, “The Year of the Copy- et al., Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. right,” Harvard Law Bulletin, spring 2003, p. 3. 2002), p. 19.
64. Brief of Amici Curiae the Internet Archive, 70. Curator’s notes, “Illegal Art” exhibit, Prelinger Archives, and Project Gutenberg sponsored by StayFree! magazine, CBGB 313 Literary Archive Foundation Filed on Behalf of Gallery, New York City, Nov. 13-Dec. 6, 2002. Petitioners, Eldred v. Ashcroft, No. 01-618 71. Brief for the Respondent, Eldred v. Ashcroft, (S.Ct., May 20, 2002), pp. 3-5, 13-14, 22-23. No. 01-618 (S.Ct., Aug. 2002), p. 40; Amicus 65. Brief of Amici Curiae National Writers Curiae Brief of the Songwriters Guild of Union et al. in Support of Petitioners, Eldred v. America Concerning First Amendment Issues Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. 7, and in Support of Respondent, Eldred v. 13-14; Jesse Walker, “Mickey Mouse Clubbed: Ashcroft, No. 01-618 (S.Ct., Aug. 5, 2002), p. 15 Disney’s Cartoon Rodent Speaks Out on the (“First Amendment challenges to copyright Eldred Decision,” Reason, Apr. 2003, pp. 18, 20 laws have generally been rejected precisely (an “interview” with the mouse, who has because the ... idea/expression dichotomy temporarily escaped from his corporate fetters). adequately protects First Amendment inter- ests”). 66. Brief of George A. Akerlof et al., in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 72. Brief for the Respondent, Eldred v. Ashcroft, (S.Ct., May 20, 2002). No. 01-618 (S.Ct., Aug. 2002), pp. 37-38.
67. Brief Amici Curiae of the American Associa- 73. Jessica Litman, Digital Copyright (Amherst, tion of Law Libraries, et al., in Support of NY: Prometheus Books, 2001), p. 32 n.4; Council Petitiioners, Eldred v. Ashcroft, No. 01-618 Directive 93/98/EEC, Articles 1(1), 1(3), 1(4), (S.Ct., May 20, 2002), pp. 19, 29-30. Other cited in Brief of Intellectual Property Law signers of this brief were the American Histori- Professors as Amici Curiae Supporting
52 “The Progress of Science and Useful Arts” Petitioners, Eldred v. Ashcroft, No. 01-618 2003_01_12_balkin _ archive.html (accessed 1/ (S.Ct., May 20, 2002), p. 17; Brief of Amicus 19/03). Curiae International Coalition for Copyright Protection in Support of Respondent, Eldred v. 80. Eldred v. Ashcroft, 123 S.Ct. at 800 (Justice Ashcroft, No. 01-618 (S.Ct., Aug. 2002), pp. 5-7. Stevens dissenting).
74. Brief for Petitioners, Eldred v. Ashcroft, No. 81. Eldred v. Ashcroft, 123 S.Ct. at 812 (Justice 01-618 (S.Ct., 2001 Term), pp. 42-44 (also noting Breyer dissenting). that six out of 20 categories of copyright “are actually less harmonized now than they were 82. Editorial, “The Coming of Copyright prior to CTEA”). A brief from 53 copyright Perpetuity,” New York Times, Jan. 16, 2003, p. scholars pointed to numerous other inconsis- A28. tencies between U.S. and European copyright 83. Amy Harmon, “A Corporate Victory But One law, which the Sonny Bono law did not resolve. That Raises Public Consciousness,” New York Brief of Intellectual Property Law Professors as Times, Jan. 16, 2003, p. A24. Amici Curiae Supporting Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. 84. Lawrence Lessig, “Protecting Mickey 16-19; see also Report of the Senate Committee Mouse at Art’s Expense,” New York Times, Jan. on the Judiciary on the CTEA, Senate Report 18, 2003, p. A17. No. 104-315, 104th Congress, 2d Session (July 10, 1996), pp. 14, 30 (Minority Views of Senator Hank Brown); Anthony Tommasini, “Compa- 85. Amy Harmon, “Case Could Shift Balance in nies in U.S. Sing Blues As Europe Reprises 50’s Debate on Public Domain,” New York Times, Hits,” New York Times, Jan. 4, 2003, p. A1 Feb. 20, 2002, p. C7. (because European Union copyright term for sound recordings is only 50 years, European 86. Jessica Litman, Digital Copyright (Amherst, companies are releasing 1950s recordings by NY: Prometheus Books, 2001), p. 95. stars like Maria Callas, Elvis Presley, and Ella Fitzgerald, which are still covered by copyright 87. Pamela Samuelson, “The Copyright Grab” in the U.S.). (1995), www.negativland.com/white.html (accessed 7/29/03); see also Mike Godwin, 75. Marjorie Heins notes, Oct. 9, 2002; Linda “Copywrong: Why the Digital Millennium Greenhouse, “Justices Hear Arguments on Copyright Act Hurts the Public Interest,” Extension of Copyrights,” New York Times, Oct. Reason, July 2001, p. 57; Jessica Litman, Digital 10, 2002, p. C1; Michael Grebb, “Justices Doubt Copyright (Amherst, NY: Prometheus Books, Free Speech Link,” Wired News, Oct. 10, 2002 2001), pp. 90-96 (recounting how the Green www.wired.com/news/politics/0,1283, Paper’s release caused dismay among libraries, 55684,00.html (accessed 7/29/03). authors, online service providers, and makers of electronic devices and computer hardware; 76. Lessig Blog Archives, cyberlaw.stanford. public hearings were held, but in the end, the edu/lessig/blog/archives/cat_eldredcc.shtml Administration altered only the style and (accessed 7/29/03). strategy, not the substance, of its views on how copyright should work online. The main 77. Eldred v. Ashcroft, 123 S.Ct. 769; id. at 806 difference between its initial Green Paper and its (Justice Breyer dissenting). final White Paper, Intellectual Property and the National Information Infrastructure, was that 78. Eldred v. Ashcroft, 123 S.Ct. at 788-89. the White Paper did not propose major changes in the substance of copyright law. Rather, says 79. Jack Balkin Blog, Jan. 15, 2003, “Mickey in Litman, it interpreted existing law to assert that Chains, Part II, or Why the Court Got it Wrong “most of the enhanced protection copyright in Eldred v. Ashcroft,” balkin.blogspot.com/ owners might want was already available.”).
Why Copyright Today Threatens Intellectual Freedom53 88. 17 U.S. Code §1201(a)(1)(A), (b). The DMCA Case,” EFF press release, Oct. 25, 2001, provides for the usual copyright law civil and www.eff.org/Legal/Cases/Felten_ v_RIAA/ criminal penalties – up to a $500,000 fine or five 20011025_eff_felten_pr.html (accessed 7/29/03); years in prison for a first offense, and up to $1 Electronic Frontier Foundation, Unintended million or 10 years in prison for subsequent Consequences: Three Years Under the DMCA offenses. 17 U.S. Code §§1203, 1204. (May 3, 2002), www.eff.org/IP/DMCA/ 20020503_dmca_consequences.pdf (accessed 89. Jessica Litman, Digital Copyright (Amherst, 7/29/03); Defendant John Ashcroft’s Memoran- NY: Prometheus Books, 2001), p. 144. dum in Support of Motion to Dismiss, Felten v. RIAA, No. CV- 01- 2669 (GEB) (D. N.J., Sept. 25, 90. 17 U.S. Code §1201(d), (e), (f), (g) (also 2001); Defendant John Ashcroft’s Reply including an exemption for law enforcement). Memorandum in Support of Motion to Dismiss, Felten v. RIAA, No. CV- 01- 2669 (GEB) (D. N.J., 91. 17 U.S. Code §1201(a)(1)(B). Nov. 8, 2001). 92. 65 Federal Register 64555 (Oct. 27, 2000); 68 96. Defendant John Ashcroft’s Reply Memoran- Federal Register 62011 (Oct. 31, 2003), codified dum in Support of Motion to Dismiss, Felten v. in 37 Code of Federal Regulations §201.40(b). RIAA, No. CV- 01- 2669 (GEB) (D. N.J., Nov. 8, See also Robin Gross, “DMCA Takes Full Effect 2001), pp. 2-3. – Millions of Americans Become Criminals,” EFFector Online Newspaper, Vol. 13, No. 11 97. EFF Media Release, “Scientists Support (Dec. 13, 2000), www.eff.org/effector/HTML/ Professor’s Copyright Challenge,” Aug. 13, efffect 13.11.html (accessed 7/29/03). After its 2001; David McGuire, “Scientist Ends Crusade 2003 hearings, the Copyright Office rejected 25 Against Copyright Law,” Washington Post, other requests for “fair use” exemptions from Feb.6, 2002, www.computeruser.com/news/02/ the DMCA. Memorandum From Marybeth 02/08/news.html (accessed 8/6/03); “Federal Peters, Register of Copyright to James H. Judge Stymies Professor’s Challenge of Digital- Bellington, Librarian of Congress (Oct. 27, Copyright Law,” Associated Press, Nov. 29, 2003), http://www.copyright.gov/1201 (ac- 2001, www.freedomforum.org/templates/ cessed 11/4/03). document.asp?documentID=15439 93. WIPO Copyright Treaty, Article 11, quoted &printerfriendly=1 (accessed 7/29/03). For the in The Digital Millennium Copyright Act of EFF’s archive on the case, see www.eff.org/IP/ 1998 - U.S. Copyright Office Summary (Dec. DMCA/Felten_v_RIAA (accessed 7/29/03). 1998), www.loc.gov/copyright/legislation/ 98. Richard Smith, “Digital Copyright Act Harms dmca.pdf (accessed 7/29/03). Research,” July 30, 2001, www.privacy 94. Testimony of Assistant Secretary of foundation.org/commentary/tipsheet.asp? Commerce and Commissioner of Patents and id=47&action=0 (accessed 9/8/03) (originally Trademarks Bruce Lehman in response to published in MSNBC Online); Jennifer 8. Lee, questions from Representative Rick Boucher, in “Man Denies Digital Piracy in First Case Under WIPO Copyright Treaties Implementation Act; ’98 Act,” New York Times, Aug. 31, 2001, p. C3; and Online Copyright Liability Limitation Act: Ariana Eunjung Cha, “Keep Digital Copyright Hearing on H.R. 2281 and H.R. 2280 Before Law Intact, Agency Says,” Washtech.com, Aug. the House Subcommittee on Courts and 30, 2001, www.washingtonpost.com/ac2/wp- Intellectual Property, 105th Congress, 1st dyn?pagename=article&node=&contentId= Session (Sept. 16, 1997), p. 62. A16744-2001Aug29¬Found=true (accessed 8/9/03); “Charges to be Dropped Against 95. RIAA Letter to Felten, Apr. 9, 2001, Russian Cryptographer,” Associated Press, www.eff.org/Legal/Cases/Felten_v_RIAA/ Dec. 14, 2001, www.freedomforum.org/tem- 20010409_riaa_sdmi_letter.html (accessed 7/29/ plates/document.asp?documentID=15536& 03); “EFF Protects Scientists’ Speech in RIAA printer friendly=1 (accessed 7/29/03).
54 “The Progress of Science and Useful Arts” 99. Jennifer 8. Lee, “In Digital Copyright Case, 107. Brief for Defendants-Appellants, Universal Programmer Can Go Home,” New York Times, City Studios v. Corley, No. 00-9185 (2d Cir. Dec. 14, 2001, p. C4; U.S. Attorney press 2001), p. 7. Corley’s co-defendants settled the release, “On Dropping of Charges Against case and did not appeal. Dmitry Sklyarov,” Dec. 13, 2001, www.eff.org/IP/ DMCA/US_v_Elcomsoft/ 20011213_usatty 108. Brief for Defendants-Appellants, Universal _pr.html (accessed 7/29/03). City Studios v. Corley, No. 00-9185 (2d Cir. 2001), p. 48. 100. Amicus Curiae Brief of the Electronic Frontier Foundation, et al. in Support of 109. Brief of Amici Curiae Professors Yochai Motion to Dismiss, in United States v. Elcom Benkler and Lawrence Lessig in Support of Ltd., CR 01-20138 RMW (N.D. Cal. Feb. 4, 2002), Appellants, Universal City Studios v. Corley, pp. 5-7, 22-23. Other signers of this brief were No. 00-9185 (2d Cir. 2001), p. 9. the ACM Committee on Computing Law & Technology, American Association of Law 110. Brief of Amici Curiae American Civil Libraries, Consumer Project on Technology, Liberties Union et al. in University City Studios Electronic Privacy Information Center, Music v. Corley, No. 00-9185 (2d Cir. 2001) p. 16. In Library Association, and U.S. Public Policy addition to the ALA, others signers of this brief Committee of ACM. were the Association for Research Libraries, Music Library Association, National Associa- 101. Order Denying Defendants’ Motions to tion of Independent Schools, Electronic Privacy Dismiss the Indictment on Constitutional Information Center, and Computer & Communi- Grounds, United States v. Elcom Ltd., 203 F. cations Industry Association. Supp.2d 1125, 1131 (N.D. Cal. 2002). 111. The availability of the ties was noted on 102. Shannon Laferty, “Digital Copyright Act legalminds.lp.findlaw.com/list/cyberia-l/ Goes Before First Criminal Jury,” The Recorder, msg33924.html (accessed 12/2/02). The DeCSS Dec. 4, 2002,www.law.com (accessed 12/4/02). song was reported in “Evidence: A Selection of Banned and Contested Art,” Columbia Univer- 103. Walt Crawford, “ElcomSoft/Sklyarov: sity National Arts Journalism Program, “The DMCA Comes to Trial,” Cites & Insights, Jan. New Gatekeepers” Conference, Nov. 20-21, 2003, p. 2. 2002.
104. “Interview with Jon Johansen,” 112. Brief for Intervenor United States of LinuxWorld.com, n.d., www.linuxworld.com/ America in Universal City Studios v. Corley, linuxworld/lw-2000-01-dvd-interview.html No. 00-9185 (2d Cir. 2001), p. 24, quoting Report (accessed 11/5/02); Johansen’s trial testimony of the House Committee on Commerce on the in Universal City Studios v. Corley, DMCA, H.R. Rep. No. 105-551, 105th Congress, www.eff.org/IP/DMCA/MPAA_DVD_cases/ 1st Session (1998), p. 25. 20000720_ny_trial_transcript.html (accessed 7/ 29/03). 113. Universal City Studios v. Corley, 273 F.3d 429, 459 (2d Cir. 2001). Corley did not appeal to 105. Brief for Defendants-Appellants, Universal the Supreme Court. City Studios v. Corley, No. 00-9185 (2d Cir. 2001), p. 5. 114. Communication with Cindy Cohn, legal director, Electronic Frontier Foundation, Dec. 106. Universal City Studios v. Reimerdes, 82 F. 2002. Supp.2d 211 (S.D.N.Y. 2000) (preliminary injunction); 111 F. Supp.2d 294, 346 (S.D.N.Y. 115. Universal City Studios v. Corley, 273 F.3d 2000) (decision after trial). 429, 441 (2d Cir. 2001); id. at 436 n.2; Universal City Studios v. Remeirdes, 111 F. Supp.2d at 308-09, 313.
Why Copyright Today Threatens Intellectual Freedom55 116. Timothy O’Brien, “Norwegian Hacker, 19, 127. 68 Federal Register 62017 (Oct. 31, 2003). Is Acquitted in DVD Piracy Case,” New York The Copyright Office reasoned that the DMCA Times, Jan. 8, 2003, p. C4; Reuters, “Norwegian already allows reverse engineering of the toner Teenager to Face Retrial for Film Piracy,” Feb. authentication technology, so that no addi- 28, 2003, www.findlaw.com/entertainment/s/ tional exemption is necessary. Peters Memoran- 20030228/technorwaydvddc.html (accessed 3/9/ dum, supra n.92, pp. 172-83. 03). 128. For information about Internet filters’ 117. Complaint for Declaratory Relief, 321 inevitable over-blocking of valuable content; Studios v. Metro-Goldwyn-Mayer Studios et see, David Sobel, ed., Filters and Freedom al., No. C 02 1995 (N.D. Cal., filed Apr. 22, 2002). (Washington, DC: EPIC, 2001); Free Expression Policy Project, Internet Filters: A Public Policy 118. Jason Hoppin, “Judge Leaning Studios’ Report (2001), www.fepproject.org/policy Way in DMCA Fight,” The Recorder, May 16, reports/filteringreport.html (accessed 9/1/03); 2003, www.law.com/jsp/article.jsp?id American Library Ass’n v. United States, 202 F. =1052440742962 (accessed 5/16/03). Supp.2d 401, 431-48 (E.D Pa. 2002), reversed (though without contesting the lower court’s 119. Jason Hoppin, “The DMCA’s Screen Test,” extensive fact-findings on the irrational The Recorder, Apr. 25, 2003, www.law.com/jsp/ operation of Internet filters), 123 S.Ct. 2297 article.jsp?id=1051121785484 (accessed 4/26/ (2003). 03). 129. ACLU FAQ on Edelman v. N2H2, Inc., 120. DVD Copy Control Association v. Bunner, www.aclu.org/issues/cyber/Edelman _FAQ.html 93 Cal. App.4th 648, 656 (6th App. Dist., Santa (accessed 7/29/03); Complaint in Edelman v. Clara County, 2002), “depublished” after the N2H2, Inc., No. 02-CV-11503-RGS. (D. Mass., California Supreme Court agreed to review the filed July 25, 2002). case, 41 P.3d 2 (Cal. Feb. 20, 2002). 130. Memorandum and Order on Defendant’s 121. DVD Copy Control Association v. Bunner, Motion to Dimiss, Edelman v. N2H2, Inc., No. 93 Cal. App. 4th at 665-66. 02-CV-11503-RGS (D. Mass. Apr. 7, 2003), p. 3.
122. Mike McKee, “‘Friends’ in High Places,” 131. Seth Finkelstein, “SmartFilter - I’ve Got a The Recorder, Aug. 29, 2002, www.law.com Little List,” Dec. 7, 2000, sethf.com/anti (accessed 9/3/02). censorware/smartfilter/gotalist.php (accessed 9/ 8/03). 123. DVD Copy Control Association v. Bunner, 2003 Cal. LEXIS 6562 (unpublished), slip 132. Universal City Studios v. Corley, 273 F.3d opinion, No. S102588 (California Supreme Court, 429, 458 (2d Cir. 2001). Aug. 25, 2003) (Judge Moreno concurring). 133. Electronic Frontier Foundation, Unin- 124. Sony Computer Entertainment, Inc. v. tended Consequences: Three Years Under the GameMasters, 87 F. Supp.2d 976 (N.D. Cal. DMCA, May 3, 2002, p. 3, www.eff.org/IP/ 1999). DMCA/20020503_dmca_consequences.pdf (accessed 7/29/03). See also EFF’s January 2003 125. Memorandum and Order, Lexmark Interna- update, Unintended Consequences: Four Years tional v. Static Control Components, 253 F. Under the DMCA, www.eff.org/IP/DRM/ Supp. 2d 943 (E.D. Ky. 2003). DMCA/20030102_dmca_unintended_ consequences.html (accessed 8/4/03). 126. Quoted in Amy Harmon, “Pondering Value of Copyright vs. Innovation,” New York Times, 134. Jeff Grove, “Legal and Technological Mar. 3, 2003, p. C2. Efforts to Lock Up Content Threaten Innova-
56 “The Progress of Science and Useful Arts” tion,” Communications of the ACM, Apr. 2003, 142. Quoted in Brad King, “Copyright or Copy Vol. 46, No. 4, p. 21. Wrong?,” Wired News, Feb. 16, 2001, www.wired.com/news/print/0,1294,41845,00.html 135. Petition for En Banc Review, Universal (accessed 7/29/03). In another case shortly after City Studios v. Corley, No. 00-9185 (2d Cir. Jan. Napster, a judge granted a preliminary injunc- 14, 2002). tion that put the file-sharing service Aimster out of business; in June 2003, a federal court of 136. Edward Rothstein, “Swashbuckling appeals affirmed the injunction. In Re: Aimster Anarchists Try to Eliminate Copyrights From Copyright Litigation, 252 F. Supp.2d 634 Cyberspace,” New York Times, June 10, 2000, p. (N.D.Ill. 2002), affirmed, 334 F.3d 643 (7th Cir. B4. 2003).
137. Professor Michael Madison, in Symposium 143. “Fighting Back,” Economist.com, Nov. 14, Beyond Napster: Debating the Future of 2002, www.economist.com/agenda/Printer Copyright on the Internet: Panel One: The Friendly.cfm? Story_ID=1446431 (accessed 9/9/ Road to Napster: Internet Technology and 03). Digital Content, Nov. 16, 2000, published in 50 American U. Law Review 363 (2000); see also 144. Memorandum of Defendants Streamcast John Borland, “Hollywood Chases Down Networks, Inc. (Formerly Known as Campus Sites,” CNET News.com, Oct. 10, 2002, MusicCity.Com) ... in Support of Motion for www.news.com.com/2100-1023-961637. html Partial Summary Judgment, in Metro-Goldwyn (accessed 7/29/03) (reporting that the rapper Dr. Mayer-Studios v. Grokster, No. 01-08541 SVW Dre sued several universities as well). (PJWx) (C.D. Cal.), Jan. 22, 2002, p. 11. MusicCity also argued that noncommercial 138. A&M Records v. Napster, 239 F.3d 1004 uses of Morpheus by individual consumers to (9th Cir. 2001). On the popularity of Napster at burn CDs are lawful under the Audio Home its peak, see Neil Strauss, “Record Labels’ Recording Act of 1992 (see n. 139), which Answer to Napster Still Has Artists Feeling creates a mechanism for musicians “and other Bypassed,” New York Times, Feb. 18, 2002, p. stakeholders” to receive royalties for home A1. copying. Id., p. 13 n. 6. The Court of Appeals in Napster rejected a similar argument. 139. 17 U.S. Code §1008 exempts audio record- ing devices and their noncommercial use from 145. Order Granting Defendants’ Motions for suits for copyright infringement. Summary Judgment, Metro-Goldwyn-Mayer Studios v. Grokster, 259 F. Supp.2d 1029, 1035 140. A&M Records v. Napster, 239 F.3d at 1021- (C.D. Cal. 2003), appeal pending. Technically, 23. the decision did not apply to KaZaA, which did not join in Morpheus and Grokster’s motion for 141. A&M Records v. Napster, 284 F.3d 1091 summary judgment. (9th Cir. 2002); Brenda Sandburg, “Napster Sings the Blues, Agrees to $26 Million Settle- 146. Amy Harmon, “Music Industry in Global ment,” The Recorder, Sept. 25, 2001,www.law. Fight on Web Copies,” New York Times, Oct. 7, com (accessed 9/25/02). Ironically, the Napster 2002, p. A1. name still had so much appeal that it was bought by a company called Roxio, which in 147. “Dutch Court Clears Web Music Swap- 2003 acquired the faltering industry online ping,” CNN.com, Mar. 28, 2002, msn.com.com/ music service, Pressplay. The theory was that 2100-1105-870551.html (accessed 7/29/03); Matt reviving Pressplay under the Napster name Richtel, “Music Services Aren’t Napster, But would improve business. Amy Harmon, “Deal the Industry Still Cries Foul,” New York Times, May Raise Napster from Online Ashes,” New Apr. 17, 2002, p. C1. York Times, May 19, 2003, p. C1.
Why Copyright Today Threatens Intellectual Freedom57 148. John Alderman, Sonic Boom: Napster, from policing operations of the type that the MP3, and the New Pioneers of Music (Cam- industry demanded, but in November 2002 the bridge, MA: Perseus, 2001); Richard Barbrook, U.S. Naval Academy seized 100 computers from “How the Music Industry Blew It,” Salon.com, students suspected of downloading music Nov. 30, 2001, salon.com/tech/books/2001/11/ online. Amy Harmon, “100 Computers of U.S. 30/sonic_ boom/index.html (accessed 7/29/03) Midshipmen Seized,” New York Times, Nov. 26, (calling Sonic Boom a “cautionary tale of a rich 2002, p. C1. and powerful industry that was determined not to get it – and how it suffered the conse- 155. Letter to College and University Presidents quences of this mistake.”). from Marc Rotenberg, EPIC’s executive director, and others, Nov. 6, 2002, www.epic.org/privacy/ 149. Neil Strauss, “Record Labels’ Answer to student/p2pletter.html (accessed 7/29/03). Napster Still Has Artists Feeling Bypassed,” New York Times, Feb. 18, 2002, p. A1; Amy 156. 17 U.S. Code §512(c)-(g). See the discus- Harmon, “Copyright Hurdles Confront Selling sion of the Verizon case, pp. 39-40, for more on of Music on the Internet,” New York Times, the problems with §512 of the DMCA. Sept. 23, 2002, p. C1. By late 2002, the industry 157. Declan McCullagh, “RIAA Apologizes for had ironed out some of these problems, but Threatening Letter,” CNET News.com, May 12, most online music fans still preferred the free 2003, news.com.com/2100-1025_3-1001095.html software. “Fighting Back,” Economist.com, (accessed 5/15/03). Nov. 14, 2002, www.economist.com/agenda/ PrinterFriendly.cfm? Story_ID=1446431 (ac- 158. “Activist Network in NY Evicted From cessed 9/9/03). Internet by Dow, Verio,” Thing.net press release, Dec. 23, 2002, www.rtmark.com/ 150. Amy Harmon, “Music Labels Coming to thingpr.html (accessed 9/9/03). Dow had taken Grips With Web Piracy,” International Herald over the Union Carbide Company, which owned Tribune, June 9, 2003, p. 1. the plant in Bhopal. Dow’s take-down notice to 151. Amy Harmon, “Suit Settled for Students Verio can be found at www.rtmark.com/more/ Downloading Music Online,” New York Times, Dow-Chemical_DMCAnotice.pdf (accessed 9/ May 2, 2003, p. A22. 9/03).
152. John Borland, “RIAA Sues Campus File- 159. 17 U.S. Code §512(g). Swappers,” CNet News.Com, Apr. 3, 2003, 160. In re: Verizon Internet Services, 240 F. news.com.com/2100-1027-995429.html (ac- Supp.2d 24 (D.D.C. 2003) (denying motion to cessed 4/7/03); Scott Carlson, “Recording quash subpoenas); 258 F. Supp.2d 6 (D.D.C. Industry Sues 4 Students for Allegedly Trading 2003) (denying stay pending appeal); Verizon Songs Within College Networks,” Chronicle of Internet Services, Inc.’s Brief in Support of Its Higher Education,” Apr. 4, 2003, Motion to Quash, In re: Verizon Internet chronicle.com/free/2003/04/2003040401t.htm Services, No. 1:03MS00040 (JDB) (D.D.C. (accessed 4/7/03). March 3, 2003). The subpoena provision is 17 153. Walt Crawford, “Why Make Records U.S. Code §512(h). When You Can Make Enemies,” Cites & 161. Amy Harmon, “Efforts to Stop Music Insights, July 2003, p. 3 (noting comments of Swapping Draw More Fire,” New York Times, Edward Felten and Jacques Distler). Aug. 1, 2003, p. C1; Ted Bridis, “Senator Probes 154. Vincent Kiernan, “High Education Organi- RIAA Crackdown,” July 31, 2003, MSNBC zations Urge a Crackdown on Illegal File News, stacks.msnbc.com/news/946802.asp?0si= Sharing,” Chronicle of Higher Education, Oct. (accessed 8/10/03); Amy Harmon, “Subpoenas 25, 2002, p. A37. Most universities shied away Sent to File-Sharers Prompt Anger and Re- morse,” New York Times, July 28, 2003, p. C1.
58 “The Progress of Science and Useful Arts” 162. John Borland, “Court Blocks Some File- 169. John Alderman, Sonic Boom: Napster, Trading Subpoenas,” CNet News.com, Aug. 8, MP3, and the New Pioneers of Music (Cam- 2003, rss.com.com/2100-1027_3-5061868.html bridge, MA: Perseus, , 2001), p. 108. (accessed 8/10/03); “Schools Cite Privacy Rights to Fight Music-Use Subpoenas,” 170. Bob Sullivan, “Napster or Not, File Swaps eSchool News, July 25, 2003, www.eschool Continue,” MSNBC News, Oct. 14, 2002, news.com (accessed 8/4/03); Jay Lyman, “SBC www.msnbc.com/news/820292.asp?0si= Fights Back Over RIAA Subpoenas,” E- (accessed 9/12/03) (reporting on survey Commerce Times, July 31, 2003, www.ectnews. indicating 25% of file-sharers buy more); Matt com/perl/story/31236.html (accessed 8/19/03). Richtel, “Access to Free Online Music is Seen as a Boost to Sales,” New York Times, May 6, 163. Quoted in Amy Harmon, “261 Lawsuits 2002, p. 66 (reporting on survey indicating 47% Filed on Music Sharing,” New York Times, Sept. increased their spending); see also Dan 9, 2003, pp. A1, C6. Bricklin, “The Recording Industry is Trying to Kill the Goose That Lays the Golden Eggs,” 164. Chris Nelson, “Epic Records Takes Steps www.bricklin.com/recordsales.htm (accessed 9/ to Seal Its Newest Music,” New York Times, 12/03) (only 13% of music buyers say down- Sept. 16, 2002, p. C7, quoting Bart Blasengame loading from the Web decreases their music of Details magazine. purchases, while “39% say exposure to new music online increases their CD buys”); Lynette 165. Eric Taub, “DVD’s Meant for Buying But Holloway, “Arrests Illustrate a Growing Not Keeping,” New York Times, July 21, 2003, p. Concern Over Bootlegged Recordings,” New C1; Amy Harmon, “Universal to Cut Prices of York Times, Dec. 2, 2002, p. C10. Its CD’s,” New York Times, Sept. 4, 2003, p. C1; Saul Hansell, “Aiming at Pornography to Hit 171. See Richard Barbrook, “How the Music Music Piracy,” New York Times, Sept. 7, 2003, Industry Blew It,” Salon.com, Nov. 30, 2001, p. 1. salon.com/tech/books/2001/11/30/sonic_boom/ index.html (accessed 7/29/03), reviewing John 166. John Borland, “New Kazaa Likely to Raise Alderman, Sonic Boom: Napster, MP3, and the Labels’ Ire,” CNET News.com, Sept. 22, 2002, New Pioneers of Music (Cambridge, MA: news.com.com/2100-1023-958912.html?tag+fd Perseus, 2001). For a more radical analysis, _ots (accessed 7/29/03); Neil Straus, “Online which predicts the demise of the huge media Fans Start to Pay the Piper,” New York Times, companies that supply about 90% of the Sept. 25, 2002, pp. E1, E7. world’s popular music, and the development of other business models for supporting musi- 167. Andrew Ross Sorkin, “Software Bullet Is cians, see Eben Moglen, “Liberation Musicol- Sought to Kill Musical Piracy,” New York Times, ogy,” The Nation, Mar. 12, 2001, p. 5. pp. 1, 36. 172. Robert MacMillan, “Internet Sparks a 168. Negativland, “Two Relationships to a Copyright Fire,” Washington Post, June 24, Cultural Public Domain,” Duke University 2003, www.washingtonpost.com/wp-dyn/ Conference on the Public Domain, Nov. 9-11, articles/A23481-2003June23.html? 2002, www.law.duke.edu/pd/papers/hoslerjoy. nav=hptop_tb (accessed 6/16/03). pdf (accessed 7/29/03). Another commentator noted that the purchase price of software and 173. “Consumer Broadband and Digital Televi- other commonly pirated material already takes sion Promotion Act” (S. 2048), 107th Congress, the cost of illegal copying into account. Charles 2d Session (Mar. 21, 2002). Mann, “Who Will Own Your Next Good Idea?” Atlantic Monthly, Sept. 1998, www.theatlantic. 174. Deirdre Mulligan, “Digital Rights Manage- com/issues/98sep/copy.htm (accessed 7/29/03). ment and Fair Use By Design,” Communica- tions of the ACM, Apr. 2003, Vol, 46, No. 4, pp. 31, 37.
Why Copyright Today Threatens Intellectual Freedom59 175. EFF Letter to the Senate Commerce 183. Rick Boucher, “Time to Rewrite the Committee, Nov. 5, 2001, www.eff.org/IP/ DMCA,” CNET News.com, Jan. 29, 2002, DMCA/20011105_eff_sssca_letter.html news.com.com/2010-1078-825335.html (ac- (accessed 7/29/03); “What is the CBDTPA?,” cessed 7/29/03). StopPoliceware.org, www.stoppoliceware. org (accessed 11/3/02). 184. Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), pp. 254-55. 176. Amy Harmon, “Music Industry Won’t Seek Government Aid on Piracy,” New York Times, 185. “Public Domain Enhancement Act of 2003” Jan. 15, 2003, p. C3. (H.R. 2601), 108th Congress, 1st Session (June 25, 2003); see Public Knowledge, “Analysis of 177. “Peer to Peer Piracy Prevention Act” (H.R. the Public Domain Enhancement Act,” n.d., 5211), 107th Congress, 2d Session (July 25, www.publicknowledge.org/issues/pdea.html 2002); see Walt Crawford, “Why Make Records (accessed 8/8/03). When You Can Make Enemies,” Cites & Insights, July 2003, p. 4. On the states’ “super 186. Steve Lohr, “Champion of Open Source is DMCAs,” see the list maintained by Public Out at Hewlett-Packard,” New York Times, Sept. Knowledge, www.publicknowledge.org/ 9, 2002, p. C4 (noting that 25 countries have reading-room/documents/policy/super-dmcas/ shown interest in open source software; some ... (accessed 8/503); and the EFF’s press release, “would require the use of open source software “Electronic Frontier Foundation Opposes in government,” though most were simply Digital Lockdown,” Apr. 14, 2003, www.eff.org/ “efforts to ensure that there is an alternative to IP/DMCA/states/20030414_eff_admca_pr.php Microsoft in their critical software markets”); (accessed 4/22/03). Jonathan Krim, “The Quiet War Over Open- Source,” Washington Post, Aug. 22, 2003, 178. Laurence Winer, “Piracy v. Fair Use: www.detnews.com/2003/technology/0308/22/ Where’s the Line?” Media Institute Copyright technology-250851.htm (accessed 8/25/03) Colloquium, Dec. 18, 2002, www.media (describing Microsoft’s intense lobbying to institute.org/colloquium/art01_ rebuttal01.html combat the World Intellectual Property (accessed 2/6/03). Organization’s interest in open-source).
179. David Nimmer, “A Riff on Fair Use in the 187. John Markoff, “Microsoft Finds Some Digital Millennium Copyright Act,” 148 U. Pa. Doubters For the Motives of Its Largesse,” Law Review 673, 707 (2000). New York Times, May 26, 2003, p. C1.
180. “Digital Media Consumers’ Rights Act of 188. See www.osafoundation.org (accessed 8/ 2002" (H.R. 5544), 107th Congress, 2d Session 19/03); Lawrence Fisher, “Nonprofit to Create (Oct. 3, 2002); see Declan McCullagh, “Con- Open Source Software,” New York Times, Oct. gress Asked to Unpick Copy Lock Laws,” 28, 2002, p. C3. CNET News.com, Oct. 3, 2002, news.com.com/ 2100-1023-960731.html (accessed 11/25/02). 189. Amy Harmon, “A New Direction for Intellectual Property,” New York Times, May 14, 181. “Digital Choice and Freedom Act of 2002” 2002, p. C4; www.creativecommons.org (ac- (H.R. 5522), 107th Congress, 2d Session (Oct. 2, cessed 9/10/03). For Lessig’s full argument on 2002). open source and Internet freedom, see Lawrence Lessig, The Future of Ideas (New 182. “Digital Media Consumers’ Rights Act of York: Random House, 2001). 2002" (H.R. 107), 108th Congress, 1st Session (Jan. 7, 2003); see “The Daily Digest: U.S. 190. Budapest Open Access Initiative (Feb. 14, Lawmakers Urge Protection of Fair Use,” 2002),www.soros.org/openaccess/read.shtml Streaming, Jan. 8, 2003, www.streaming (accessed 7/29/03). magazine.com (accessed 3/17/03).
60 “The Progress of Science and Useful Arts” 191. “Projects - Reinventing the Public Do- dissenting). See Yochai Benkler, “Free as the main,” www.publicknowledge.org/ projects/ Air to Common Use: First Amendment Con- reinventing-public-domain.html (accessed 9/10/ straints on Enclosure of the Public Domain,” 74 03); see also Free Expression Policy Project N.Y.U. Law Review 354, 354 (1999). Senior Research Fellow Nancy Kranich’s pages on the “information commons” for more on the 196. The defendants in the Corley case argued movement for alternatives to rigid copyright for this narrow interpretation; see Universal control, www.fepproject.org/infocommons/ City Studios v. Reimerdes, 111 F. Supp. 2d at intro.html (accessed 8/14/03) 317 n. 135. Thanks to Seth Finkelstein for pointing this out. 192. See www.eff.org for EFF’s extensive archives, legal analyses, and action alerts. 197. This is the policy reflected in the 1996 Communications Decency Act, 47 U.S. Code 193. Chilling Effects Clearinghouse, §230(c)(1), which states that “no provider or www.chillingeffects.org (accessed 7/29/03); user of an interactive computer service shall be Jonas Blank, “Weather Report,” Harvard Law treated as the publisher or speaker of any Bulletin, fall 2002, pp. 9-10. Participating information provided by another information universities are Harvard, Stanford, the Univer- content provider.” sity of San Francisco, the University of Maine, and the University of California at Berkeley. 198. See Robert Kunstadt, “Fair Use Should Not Die,” National Law Journal, Nov. 11, 2002, p. 194. E-mail from Wendy Seltzer, Dec. 4, 2002. A16 (suggesting this as one remedy to the industry’s practice of encrypting both new 195. International News Service v. Associated introductory material and public domain Press, 248 U.S. 215, 250 (1918) (Justice Brandeis material). Index
A&M Records, 35 Amos, Tori, 40 A&M Records v. Napster, 35-36 AmSong, Inc., 20 Academic freedom (scholarship), 25-27, 35, Amsterdam Court of Justice, 37 37-39 Anderson, Sherwood, 17 ACM Committee on Computing Law & Tech- Art Libraries Society of North America, 52n67 nology, 55n100 AOL Time Warner, 20 Adobe company (see also eBook Reader), 26-27 “Appropriationist art,” 10 Advanced eBook Processor, 26-27 Armstrong, Herbert, 9 Affleck, Ben, 38 Artforum, 39 African American Church, 19 Association for Recorded Sound Collections, Aimster, 57n142 52n67 Akerlof, George, 52n66 Association of American Physicians & Sur- Alderman, John, 37, 41 geons, 18 American Association of Law Libraries, Association of American Publishers, 20 19, 27, 55n100 Association of Research Libraries, 52n67, American Association of Universities, 43 55n110 American Civil Liberties Union (ACLU), 29, 33, Audio Home Recording Act, 35, 57n144 55n110 Australia, 37 American Film Heritage Association, 17 American Historical Association, 52n67 Balanchine, George, 20 American Library Association, 29, 43, 52n67 Bally, 10 American Society of Composers, Authors, and “Bally sucks” Web site, 10 Publishers (ASCAP), 4, 15, 48n4 Balkin, Jack, 22
Why Copyright Today Threatens Intellectual Freedom61 Barbie Doll, 10 Coble, Howard (Representative), 15 Bartok, Béla, 17 Coca-Cola, 32 Bemelmans, Barbara, 20 Cohn, Cindy, 55n114 Bemelmans, Ludwig, 20 Coleman, Norm (Senator), 40 Bemelmans, Madeleine, 20 College Art Association, 16, 18, 22 Berkman Center for Internet & Society Columbia Pictures, 28 (Harvard Law School), 17, 45 Columbia University National Arts Journalism Berman, Howard (Representative), 42 Program, 55n111 Berne Convention, 14, 21 Communications Decency Act (1996), 61n197 Bernstein, Leonard, 8 Computer & Communications Industry Asso- Bess (see N2H2 company) ciation, 55n110 Betamax (see also Video cassette recorder), 5 Computer Professionals for Social Responsibil- Bhopal disaster, 39 ity, 18 Bible (see also King James Bible), 21, 36 Congress (U.S.), 2, 4, 11, 13, 15, 19, 23, 24 Blasingame, Bart, 59n164 Conrad, Joseph, 17 Boeing, 32 Consortium of College and University Media Bogart, Humphrey, 28 Centers, 51n57 Bono, Mary, 15 “Consumer Broadband and Digital Television Bono, Sonny, 15 Promotion Act” (see also Hollings bill), 42, “Boycott-riaa.com,” 42 59n173 Boucher, Rick (Representative), 42, 43, 54n94 Consumer Project on Technology, 55n100 Brandeis, Louis (Justice), 46 “Content Scramble System” (CSS) (see also Breyer, Stephen (Justice), 21, 22 Universal City Studios v. Corley), 27-32 Brown, Hank (Senator), 50n42 “Copyleft” movement, 3 Budapest Open Access Initiative, 60n190 Copyright Act, 8, 13-14; of 1790, 4, 13; of 1831, Buffy the Vampire Slayer, 10 13; of 1909, 13; of 1976, 13, 14, 21, 22, 47 Bugs Bunny, 10 Copyright Clause (U.S. Constitution), 4, 5, 8, 12, Bunner, Andrew, 31 13-14, 17, 19, 20, 22 Copyright industry, 2, 11, 13, 15, 20, 24, 35-41, California Court of Appeals, 31 51n53 California Supreme Court, 32 Copyright Office (U.S.), 11, 25, 32-33, 54n92, Campbell v. Acuff-Rose, 9, 49n18, 50n39 56n127 Cane, 16 Corley, Eric, 28-32, 34, 42 Capra, Frank, 13 Council on Library and Information Resources, Cat in the Hat, The, 20 52n67 Cather, Willa, 12-13 Crawford, Walt, 27 Cease-and-desist letters, 10, 28, 45 Creative Commons, 44, 47 Charlotte’s Web, 20 “Cybergriping,” 10 Chekhov, Anton, 17 Cheney, Dick, 49-50n27 Daffy Duck, 10 Cheney, Lynne, 49-50n27 DeCSS (see also Universal City Studios v. Chilling Effects Clearinghouse, 45, 49-50n27 Corley), 3, 27-32 Chronicle of Higher Education, 38 “DeCSS (Descramble)” (song), 29 Church of Scientology, 9 Denmark, 37 CIA World Fact Book, 36 Department of Justice (U.S.), 19, 26 Cinderella, 19 Derivative work, 8, 19 Circumvention (see also Digital Millennium “Digital Choice and Freedom Act of 2002,” Copyright Act), 2-3, 24-34, 47 60n181 “Clickwrap” agreements, 6, 11 “Digital Media Consumers’ Rights Act,” 43 Clinton Administration, 24 Digital Millennium Copyright Act (DMCA), 2, 3, 4, 24-34, 47, 54nn88, 92
62 “The Progress of Science and Useful Arts” Digital rights management (DRM), 2, 6, 11, 27, Fair use, 2, 4, 5, 6, 8-11, 12, 20, 22, 24, 25, 28, 43, 28, 40 50n29; as affected by DMCA, 27-31, 33, 34, 47 “Direct Connect,” 37 “Fan” sites, 10 Disney (see also Walt Disney Company), 20, 28 Fanning, Shawn, 35 “Disneyland Memorial Orgy,” 20, 21 Feist Publications, Inc. v. Rural Tel. Service Distler, Jacques, 58n153 Co., 8, 49n15 Documenting the American South, 19 Felten, Edward, 25-26, 58n153 Dover Publications, 17 Felten v. RIAA, 25-26, 54nn95-96 Dow Chemical Company, 39, 58n158 File-sharing (see also Peer-to-peer), 2, 3, 6, 35-45 Download.com, 37 Finkelstein, Seth, 33-34, 61n196 Dr. Dre, 57n137 First Amendment rights, 4, 10, 17, 20, 22, 28-29, Dr. Seuss (and Dr. Seuss Enterprises), 20 31-32, 52n71 DVD Copy Control Association v. Bunner, First sale rule, 2, 11-12, 24, 43; as affected by the 31-32, 56n120 DMCA, 27 DVD Copy Plus, 30-31 First serial rights, 9 DVDs, 3, 5, 27-28, 30-32, 40 Fitzgerald, F. Scott, 15 Dylan, Bob, 20, 23 “Flatlan,” 37-38 Fonda, Daren, 15 eBook Reader, 26-27 Ford Motor Company, 32 e-books, 3, 27 Ford, Gerald (President), 9, 20 “eBooks Security - Theory and Practice” (see Free expression “safety valves,” 2, 4, 6, 8-14, also Sklyarov), 26-27 24 Edelman v. N2H2, 33 Free software, 3, 44 Edelman, Ben, 33 Frost, Robert, 17 Eisner, Michael, 15 ElcomSoft case (see U.S. v ElcomSoft), 26-27 “Game Enhancer,” 32 ElcomSoft company, 26-27, 28 “Game Shark,” 32 Eldred, Eric, 16-20 Gass, William, 18 Eldred v. Ashcroft (see also Eldred v. Reno), Geffen company, 35 18-24, 31, 39, 43 Gershwin, George, 20 Eldred v. Reno (see Eldred v. Ashcroft), 16-17, Gibran, Kahlil, 17 52n62 Ginsburg, Jane, 29, 40 Eldritch Press, 16-17 Ginsburg, Ruth Bader (Justice), 21-22 Electronic Frontier Foundation (EFF), 26-27, 28, Gone With the Wind, 9 34, 35, 45 Google, 38 Electronic Privacy Information Center (EPIC), Grateful Dead, 41 38, 55n100, 55n110 Great Gatsby, The, 15 Elgar, Edward, 17 Green Paper (DMCA), 24, 53n87 Encryption (see also Digital Millennium Greenhouse, Linda, 51n53 Copyright Act), 2, 11, 24-25, 29 Grokster (see also Metro-Goldwyn Mayer v. English Parliament, 4 Grokster), 3, 36-37, 43 “EnronownstheGOP.org,” 45 “Guiness-beer-really-sucks.com,” 10 Epic Records, 40, 41 Epstein, Richard, 32 Harlem Renaissance, 16 Estonia, 37 Harper & Row Publishers, Inc. v. Nation Europe, 21, 25, 53n74, 54n94 Enterprises, 9, 44n19 European Union, 21 Hart, Lorenz, 12 “Every Man a King,” 16 Harvard University (see also Berkman Center), “Exclusive right,” 4, 48n7 17, 45, 61n193 Hatch, Orrin (Senator), 15, 36
Why Copyright Today Threatens Intellectual Freedom63 Hawthorne, Nathaniel, 16-17 Lehman, Bruce, 25, 54n94 Hellman, Lillian, 12 Lessig, Lawrence, 5, 16-17, 21-23, 43, 44, 60n189 Hemingway, Ernest, 15 Lexmark International, 32-33 Henley, Don, 20 Librarian of Congress, 25 Hewlett-Packard, 44 Libraries (and librarians), 3, 11, 13, 19, 25 Hoffman, Eva, 18 Licensing, 11, 43, 44, 47 Hollings, Fritz (Senator), 42 “Limited times,” 4, 5, 12, 13-14, 17, 19, 23 Hollings bill (“Consumer Broadband and Digital Linux, 28, 44 Television Promotion Act”), 42 Litman, Jessica, 12, 25, 53n87 Hughes, Ted, 12 Lofgren, Zoe (Representative), 32, 43, 47 Hunchback of Notre Dame, The, 19 Lohr, Steve, 60n186 Long, Huey, 16 IBM, 5 Looney Tunes, 10 Idea/expression dichotomy, 2, 8, 20, 22 Lott, Trent (Senator), 15 “Illegal Art” exhibit, 52n70 Illston, Susan (Judge), 31 Mad magazine, 20 Indiana University, 35 Madeline books, 20 “Initiative for Software Choice,” 44 Magic Mountain, The, 15 In re Aimster Copyright Litigation, 57n142 Mamet, David, 20 Insider, The, 29 Mann, Charles, 59n168 Intel, 34, 43 Mann, Thomas, 15 Intellectual property, 5-6 Martin, Scott, 13 International Association of Jazz Record Mattel Company, 10 Collectors, 52n67 Matthiesen, Peter, 18 Internet, 2, 23, 29, 41, 42; archives, 18, 44; Medical Library Association, 19 commons, 44-45; domain names, 10, 49n25; MGM, 28 downloading, 6; filters, 25, 33-34, 56n128; Metallica, 35, 41 publishing, 28 Metro-Goldwyn Mayer v. Grokster, 36-37, Internet service providers (ISPs), 38-40, 47 57nn144-45 Internet Archive, 52n64 Michelangelo, 12 It’s a Wonderful Life, 13 Mickey Mouse, 4, 15, 20, 51n51, 52n65 “Mickey Mouse Law,” 15 James, Henry, 17 Microsoft, 32, 44 Jaszi, Peter, 51n46 Midwest Archives Conference, 52n67 Jazz Singer, The, 15 Minnie Mouse, 20 Johansen, Jon, 27-28, 30 Mitchell, Margaret (and Mitchell Estate), 9, Jonson, Ben, 21 49n20 Joyce, James, 12 Moglen, Eben, 59n171 Monk, Thelonious Jr., 20 Kaplan, Benjamin, 48n11 Morehouse College, 49n20 Kapor, Mitch, 44 Morpheus (see also Metro-Goldwyn Mayer v. Karjala, Dennis, 50n41 Grokster), 36 KaZaA (see also Metro-Goldwyn Mayer v. Motion Picture Association of America Grokster), 3, 36-38, 40 (MPAA), 15, 20, 28, 30 King James Bible, 21, 36 “MP3,” 35, 37 King, Martin Luther Jr., 18 Mr. Rogers’ Neighborhood, 5 Kranich, Nancy, 61n191 Mulligan, Deirdre, 42 Kunstadt, Robert, 48n12, 61n198 Music Library Association, 27, 52n67, 55n100, 55n110 Leahy, Patrick (Senator), 15 MusicCity (see also Metro-Goldwyn Mayer v. Leguin, Ursula, 18 Grokster), 36-37
64 “The Progress of Science and Useful Arts” My Antonia, 12, 50n42 Priceline Web site, 5 Princeton University, 26, 28 N2H2 company, 33-34 Prior restraint, 31-32 Napster, 3, 35-38, 57n141 Project Gutenberg, 36, 52n64 Nation magazine, 9, 20 Prophet, The, 17 National Association of Independent Schools, Public domain, 2, 3, 4, 6, 12-14, 15-23, 44, 59n168 55n110 “Public Domain Enhancement Act of 2003,” National Basketball Association, 10 43-44 National Council on Public History, 52n67 Public Knowledge, 44-45 National Endowment for the Humanities, 17 National Humanities Alliance, 16, 43, 51n57 “Radioslack.com,” 45 National Initiative for a Networked Cultural Ramadge, Peter, 28 Heritage, 51n57 Randall, Alice, 9, 49n20 National Writers Union, 18 Ravel, Maurice, 17 Navy (U.S.), 26 Readers Digest, 18 Negativland, 41 Realist magazine, 20 Netflix.com, 5 Record Rental Amendment of 1984, 11 Netherlands, 37 Recording Industry Association of America New Era Dianetics, 9 (RIAA), 20, 26, 38-40 New York Civil Liberties Union, 50n27 Register of Copyrights (U.S.), 21 New York Times, 23, 40 Republican Senatorial Committee, 15 New Yorker magazine, 18 Reverse engineering, 25, 33 Nimmer, David, 42 Rice University, 26 Nixon, Richard, 9 Rogers, Fred, 5 Norway, 28, 30 Romeo and Juliet, 8 Roxio, 57n141 O’Connor, Sandra Day (Justice), 21-22 “Oh! Pretty Woman,” 9 Sabotage (corporate), 41 Olson, Ted, 21 Samuelson, Pamela, 24 Open source (see also Linux), 44, 60n186 Sampling (rap music), 10 Open Source Applications Foundation, 44 Santana, Carlos, 20, 23 Orbison, Roy, 9 Scarlet Letter, The, 16 Secure Digital Music Initiative (SDMI), 25 P.S. 1, 39 Selma, Alabama, 18 Paramount Pictures, 13, 28 Seltzer, Wendy, 45 Patent law, 5 Senate Judiciary Committee, 15 Patent and Trademark Office (U.S.), 25, 45 Shakespeare, William, 8, 12, 21, 37 Pearl Jam, 40, 41 Show Boat, 15 Peer-to-peer file sharing, 2, 3, 6, 35-45 “Sincere Choice” (see also Perens, Bruce), 44 “Peer to Peer Piracy Prevention Act,” 42 Siskel & Ebert, 31 Penn State University, 38-39 Sklyarov, Dmitri, 26-27, 34 Perens, Bruce, 44 Snow White, 19 Phish, 10 Society for American Music, 52n67 “Phynd,” 37-38 Society of American Archivists, 52n67 Picasso, Pablo, 16 Sondheim, Stephen, 8 Piracy, 6, 24, 29, 41, 46 Songwriters Guild of America, 20, 52n71 Plath, Sylvia, 12 Sonic Boom, 58n148 Porter, Cole, 15 Sonny Bono Copyright Term Extension Act, Prelinger Archives, 52n64 2, 14, 15-23, 24, 51n50, 52n67 Pressplay, 57n141 Sony Corporation, 5, 32, 35
Why Copyright Today Threatens Intellectual Freedom65 Sony Corp. of America v. Universal City Universal City Studios, 28 Studios, Inc., 5, 24, 36, 43 Universal City Studios v. Corley, 27-31, 34, Soros Foundation, 44 55n110, 61n196 Spears, Britney, 38 University of California at Berkeley, 61n193 Special Libraries Association, 52n67 University of Maine, 61n193 Spielberg, Steven, 18 University of North Carolina, 19 Stanford University, 61n193 University of San Francisco, 61n193 Statute of Anne, 4 University of Southern California, 35 Steamboat Willie, 15, 19, 51n51 Usenix, 26 Steven Spielberg Digital Yiddish Library, 18 Usher, 38-39 Stevens, John Paul (Justice), 22 StopPoliceware.org, 42 Vaidhyanathan, Siva, 5-6 Story, Joseph (Justice), 12 Valenti, Jack, 15 Strauss, Richard, 17 Vanuatu, 37 StreamCast (see also Metro-Goldwyn Mayer v. Verio, 39, 58n158 Grokster), 37 Verizon, 39, 43 Stuart Little, 20 Verizon case, 39-40 Substantial similarity, 8, 50n28 Video cassette recorder (VCR), 5, 24 Sun Also Rises, The, 15 Video Encyclopedia of the Twentieth Century, Sun Microsystems, 43 The, 16 SunTrust Bank v. Houghton Mifflin Co. (see Visual Resources Association, 51n57 also Wind Done Gone), 49n20 Supreme Court (U.S.), 2, 5, 8, 9, 17-18, 19, 21-23, Wal-Mart, 10, 49n25 24, 35 “Wal-Mart sucks,” 49n25 “Walmartcanada.sucks.com,” 10, 49n25 “Take-down” letters, 38-39 Walt Disney Company, 4, 10, 15, 20, 28, 40, Tenant.net, 39 51nn51, 53 Thing.net, 39 Warhol, Andy, 12 321 Studios, 30-31 Warner Brothers, 10 Time magazine, 9, 18 Wecker, Joe, 29 Time Warner, 15, 28 West Side Story, 8 Time-shifting, 5 White, E.B., 20 Toomer, Jean, 16 White Paper, Intellectual Property and the Trade secrets law, 5, 31-32 National Information Infrastructure, 53n87 Trademark law, 5, 10 “Who Built America?,” 16 “Tools” provisions (see also Digital Millennium Williams, Ralph Vaughn, 17 Copyright Act), 24, 47 Wind Done Gone, The, 9, 10 “Trafficking” (see also Digital Millennium Winnie The Pooh, 15 Copyright Act), 24-31 Wood, Wally, 20 Tweety, 10 “Work for hire” doctrine, 14, 21, 51n50 Twentieth Century Fox, 10, 28 World Intellectual Property Organization 2600: The Hacker Quarterly, 28-30 (WIPO), 5, 10, 25, 49n25, 60n186 Two Live Crew, 9 Worldwide Church of God, 9-10
U.S. Court of Appeals, 9, 17, 28-30, 36, 37, Xerox, 26 57n144 U.S. v. ElcomSoft, 27, 31, 55nn100-01 Yale University, 35 U.S. Naval Academy, 26, 58n154 U.S. Public Policy Committee of ACM, 55n100 Zittrain, Jonathan, 48n4 Unintended Consequences, 34, 56n133 Zuccarini case, 49n25
66 “The Progress of Science and Useful Arts” Free Expression Policy Project a think tank on artistic and intellectual freedom
The FREE EXPRESSION POLICY PROJECT, founded in 2000, provides research and analysis on difficult censorship issues and seeks free speech- friendly solutions to the concerns that animate censorship campaigns. Our areas of inquiry include:
Restrictions on publicly funded expression – in libraries, museums, and universities as well as arts and humanities agencies;
Internet filters, rating systems, and other measures adopted in the presumed interest of protecting teenagers and children from expression that is thought to be inappropriate for them; Other threats to free expression both online and off, including disputes over intellectual property and governmental or corporate control of academic research.
For more information, please visit our Web site at www.fepproject.org.
Marjorie Heins, Director Stephanie Elizondo Griest, Communications Director Nancy Kranich, Senior Research Fellow
Free Expression Policy Project Advisory Board
Kwame Anthony Appiah Nan Levinson Erwin Chemerinsky Robert Post David Cole Ellen Schrecker Robert Corn-Revere Rodney Smolla Paul DiMaggio Catharine Stimpson David Greene David Strauss Bennett Haselton Philippa Strum Henry Jenkins Julie Van Camp
The Free Expression Policy Project is supported by grants from the Open Society Institute, the Robert Sterling Clark Foundation, and the Andy Warhol Foundation for the Visual Arts. It is affiliated with the National Coalition Against Censorship, which is its fiscal sponsor.
Why Copyright Today Threatens Intellectual Freedom67