Inkwell: Authors and Artists

    
Jessica Litman is Professor of Law at Wayne State University in Detroit,
Michigan, where she teaches courses in copyright law, Internet law, and
trademarks and unfair competition.   

In her book, Digtial Copyright, professor Litman questions whether
copyright laws crafted by lawyers and their lobbyists really make sense
for the vast majority of us. Should every interaction between ordinary
consumers and copyright-protected works be restricted by law? Is it
practical to enforce such laws, or expect consumers to obey them?  Most
important, what are the effects of such laws on the exchange of
information in a free society? Litman's critique exposes the 1998
copyright law as an incoherent patchwork. She argues for reforms that
reflect common sense and the way people actually behave in their daily
digital interactions.

You'll be amazed at how much current copyright law affects you today and
how it will influence creative works in the future.

Leading the discussion is Stephanie Vardavas, who has been a member of the
WELL for seven years. She is a graduate of Yale College and Fordham Law
School.  She has worked in the sports industry for 21 years and knows just
enough about copyright to be dangerous.

Please join me in welcoming Jessic and Stephanie to inkwell.vue!
  

    
I am so pleased to have this opportunity to interview Jessica Litman
in connection with her book Digital Copyright. By way of brief
background, I am not by any means "a copyright lawyer," but I am an
attorney who has worked in various areas of intellectual property
law including trademark, copyright, and most notably
endorsements/rights of publicity. I feel a little bit like the
"surgeon" in the Holiday Inn Express ad: "No, but I did read Digital
Copyright last week."

It's a fascinating and disturbing book and I confess that it made me
very angry. The domination of the US political process by moneyed
interests is news to no one. But it is still shocking (even if not
surprising) to read Jessica's account of the way the rights of
ordinary citizens who read books, watch movies, do research, and use
computers have been forgotten or ignored.

Jessica's bio on the bookjacket is all of one sentence long:
"JESSICA LITMAN is professor of law at Wayne State University and is
a widely recognized expert on copyright law, writing and lecturing
extensively on the subject." Well, that is all well and good but
what does it tell us that we don't already know? I asked her for
some juicier biographical material and she cheerfully obliged. This
is what she says:


>I got my undergrad and graduate degrees (from Reed College and
>Southern Methodist University respectively) in theatre, and spent
>several years directing and also stage managing plays before I burnt
>out, retired, and went to law school.  While I was in law school, a
>theatre company I had worked with for a few years got into a
>copyright dispute over a play that the members of the company had
>written collaboratively, and I sat down with the copyright law to
>figure out what the law had to say about it.
>
>Most people go into law teaching because they really liked law
>school.  I went into law teaching because I hated law school, and
>figured it didn't have to be as awful as I'd found it.  (I went to
>Columbia.  Back then, nobody at Columbia seemed to like it.  I hear
>it's different now.)  I started looking into the legislative history
>of the copyright law 16 years ago, and published some law review
>articles about it.  (Much of the research is boiled down in my
>history chapter).  When the effort geared up to amend the copyright
>law to protect the major copyright industries from the Internet, I
>got to watch the legislative process in real time.  It seemed to me
>that if the legislation took the course taken in past legislative
>revisions, then what I was about to see was a train wreck in slow
>motion.  I'm a cynical woman, and my expectations were pretty low. 
>Nonetheless, it turned out worse than I expected.


OK, Jessica, let's start with a general question. 


In the law there is often a big difference between the *rights* a party
might have and the *power* that party might have. If I hire a tailor to
make me a suit, even if she does a superb job, simply because I wield the
checkbook I have the power to withhold payment. That wouldn't be
rightful, but it would certainly be possible. 

One of the major themes of the book is the constant trend toward greater
accumulation and aggrandizement of rights by the copyright owners, who
like to call themselves the "content industry." These rights are  subject
to narrow, specific, and heavily negotiated exceptions designed to buy off
those business interests who might otherwise make noise and oppose the
legislation, thus ruining the party for everyone (or at least everyone who
was invited). Ordinary citizens were not invited, but did not seem to
care, clinging to their own idiosyncratic view of copyright law, which was
that it didn't really matter what they did unless they tried to exploit
someone else's copyright for economic gain.

This all seemed good enough for awhile, but then that danged Internet came
along and scared all the business stakeholders. In the meanwhile,
ordinary citizens were embracing that same Internet as a preferred source
of information and entertainment, creating for the first time a populace
which, if educated properly, might perceive itself as ALSO having a stake
in the nuances of copyright legislation. Indeed, there have been a few
recent and encouraging examples of just that kind of awakening.

Now here we are in a situation where the "content industry" (how I love
that phrase) has figured out that in a democracy there is a limit to the
rights it can win through the political process, even though it has gamed
that process pretty well. So by leveraging the desirability of the
content it controls, the industry has succeeded in making deals with a
series of self-interested players who don't want to be left behind. My DVD
player won't let me fast-forward through the FBI WARNING that I've read a
thousand times. I might have a fair use right to keep a reference copy of
that web page on my hard drive, but it is coded in such a way as
to make it nearly impossible to copy and save. Windows XP is going to keep
track of what kind of hardware you originally load it on, and if that
configuration changes or you have to reload the OS, you have to call
Microsoft and give them a convincing explanation before they will unlock
it for you to run another install. This is what we call the
"self-help" remedy.

So a little bit at a time, the various actions users could take which
might well be fair use or other privileged or permitted use, but which
COULD RESULT IN PIRACY (or even mere economic disadvantage to the content
owner), quietly become *technologically impossible*, at least for the
average end user.  None of the mess of democracy, no public record like
legislation, just a series of contracts between entities looking out for
their own interests.

Is this something we are just going to have to get used to? 
  

    
That seems to be the plan.  Plans like that have failed before, but a
couple of things are different now.  Usually, if content providers and
device manufacturers agree to design the devices to prevent consumers
from making legitimate uses of material they buy, someone who doesn't
belong to the cartel comes along with a new technology that doesn't
incorporate the restrictions.  As often as not, consumers prefer it. 
(Think of Liquid Audio and MP3.) For that reason, device manufacturers
have been reluctant to agree to make hobbled devices unless they have
some assurance that nobody will enter the market with an un-hobbled
device.  Increasingly, content providers and device manufacturers are
making deals that include writing the specifications for copy-controls
or access-controls, and an obligation to implement them, into law.

The 1998 Digital Millennium Copyright Act (which I will call the DMCA
for the rest of the week) takes that strategy a step further:  it makes
it illegal to provide to the public any tool designed to circumvent
technology that restricts access or prevents unauthorized uses of
copyrighted material.  Now, when someone comes along with a program
that will allow you to fast forward through the commercials on your
DVD, someone will find himself in court, defending an action brought
under the DMCA.

If the DMCA holds up - there are a couple of credible constitutional
challenges pending - that means that the opportunities for competing
technologies to present themselves as genuine alternatives to locked-up
proprietary content delivery are a lot narrower.  Here's a concrete
example:  movies that are released on DVD are protected by a "content
scramble system," which employs relatively weak encryption.  To make a
DVD player, a manufacturer needs to enable it to decrypt the movie.  It
could license the decryption key, which will require it to agree to
implement a variety of controls preventing copying, skipping
commercials, playing the movie in a geographic region different from
the one where it was bought, etc.  Or, it could reverse engineer the
content scramble system, and make a working player without agreeing to
the license terms.  If it is now illegal to reverse engineer the
content scramble system or to devise or distribute software that
enables DVDs to play on unlicensed players, and Judge Kaplan's decision
in the DeCSS case tells us that it is, then the only lawful DVD
players are the ones that limit uses of purchased and rented DVDs to
the uses the motion picture studios want to permit.  That means that a
competing technology can't rely on already popular commercial content. 


But.  The US has been less successful than it hoped in persuading the
rest of the world to enact DMCA-like laws.  Recent thug-like legal
behavior (the well-publicized criminal prosecution of Dmitri Sklyarov
and the recording industry's threats against Princeton professor Edward
Felten) make it less likely that the rest of the world will eagerly
jump onto this particular bandwagon.  So it is entirely possible that
competing technologies will develop and take hold outside of the United
States, and that that will generate pressure from consumers to permit
them here as well.

At least I hope so.
  

    

I think about what happened with DivX and I think, well, perhaps there is
hope.

The DMCA appears to be an unmitigated disaster. Yet it is the law of the
land. The anti-circumvention provisions are just part of it. Uet even
those, IIRC, do not apply to the actions of a single consumer, acting
alone, who figures out how to get to a scrambled or password-protected
piece of copyrighted content. Isn't that just a cynical near-meaningless
concession on the part of the copyright industry to avoid inciting the
voting public into a greater level of attention and interest in the
copyright law? I mean, they can talk all they want about the difficulties
of pursuing individual "infringers," but of course the various
technological tools that enable individuals to find and desire this
content are closely related to other tools that would make it a lot easier
to track the conduct of those individuals. Isn't it really just a ploy to
make us think that this all doesn't concern us?

Because I am just idealistic enough, even after all these years, to
think: HOW ON EARTH DID THE AMERICAN PUBLIC SIT STILL FOR THIS?
  

    
I have bad news for you. I'm afraid that section 1201(a)(1)(A) *does*
make it illegal for an individual consumer, acting alone, to figure out
how to get a piece of password-protected content.  ("No person shall
circumvent a technological measure that effectively controls access to
a work protected under [the copyright law]") The law does allow
consumers to get around copy-protection (although it makes the tools
for doing so illegal).  It prohibits individuals from circumventing
"access protection," no matter what the reason, unless the behavior
comes within specific, narrow exeptions.  

The American public stood for this because it didn't make it onto the
news media radar screen until the law started being enforced.  We in
the copyright law community were not very articulate in our efforts to
explain why the law would be a disaster. Both as lobbyists and as media
spokesfolk, law professors, librarians, computer scientists and public
interest groups are amateurs.  Interested journalists who did
understand had difficulty persuading their editors that there was a
story here that readers would care about.  The supporters of the law
insisted loudly and effectively that the only people that the law would
hurt were the copyright pirates.
  

    

So when you talk about "circumvention of access protection," how literally
should we take that?

If I read something wonderful on salon.com which is Premium content, and I
want to email it to my friend to convince her that she ought to pony up
the $30 to get access to cool material like this ... have I circumvented
the access protection by showing it to her, since she doesn't have a
password to reach it online?
  

    
The meaning of "access control" has expanded alarmingly, but not yet
that far. (If instead of sending her the article, you were to tell her
your password, on the other hand...) 

When the provision was first introduced, it was intended to cover
*initial* access.  When libraries tried to get language included in the
law to nail that down, publishers insisted that access controls should
also be understood to include technology that facilitated
pay-per-view.  There was still the sense, however, that an access
control was something that limited access to people who were entitled
to it.

Once the law was on the books, we saw another expansion.  When Motion
Picture studios sued 2600 magazine over its posting of and linking to
DeCSS, they claimed that CSS was an access control that DeCSS was
designed to circumvent.  But DeCSS enables people who have DVDs, and
are therefore licensed to view them, to gain access on unlicensed
devices.  Thus, DeCSS circumvents access controls for the benefit of
people who are entitled to access, but distributing, posting, or
linking to a site that posts DeCSS was nonetheless held to violate
1201(a).
  

    

Under what theory is all of this constitutional?

Or are we back to the theory that under an economic analysis of copyright
law, copyright law has REALLY been ALL ABOUT providing an economic
incentive to create works of authorship, and that therefore this
formulation is really what the framers of the Constitution had in mind all
along?
  

    

  And even if that's the case, does nobody in Congress understand the
four little words "for a limited time"...?
  

    

Sure they do. They think "for a limited time" is how long they'll stay in
power if they don't keep getting money from the corporations who want these
laws.
  

    

It does seem from your account, Jessica, that the problem is structural as
much as anything:

- the "content industry" has lobbyists and a seat at the table
- the corporate distributors of content (e.g. broadcasters) have their own
- the common carriers (e.g. ISPs) have theirs
- the law is arcane, complex, and arbitrary
- unless David Lee Roth or Courtney Love show up at the hearings, nobody
pays attention (including the members of Congress who are supposed to make
the law with the public interest in mind, and their staff, who are all
planning for their future jobs in the private sector and trying to make
friends among those with an interest in this subject matter)

So you have a multilateral negotiation among business interests, driven by
economics, but the public interest can't be quantified and even if it
could, no one at the table is motivated to do more than pay lip service to
it. 
  

    
I think that you're right that much of it is structural.  Another part
is attitude:  most of the players and members of Congress (supported
until recently by the mainstream news media) seem to begin with the
assumption that copyright expansion *is* in the public interest, and
that so-called public interest organizations who oppose copyright
expansion simply fail to appreciate that.
  

    
Let me expand a little on the structural problem:  The process of
crafting copyright laws by inviting lobbyists for the relevant
businesses to work it out among themselves began a hundred years ago,
when the biggest controversy was over whether piano roll and phonograph
record publishers should pay royalties to music publishers.  As the
entertainment and information industries got more complicated, more
lobbyists demanded seats at the table.  By the 1920s, the bargaining
table had gotten crowded, and the task of striking deals that everyone
could live with had gotten much more difficult.  Copyright lobbyists
understandably resisted letting anyone new join the party.  Interests
demanding a say essentially had to prove their political clout by
preventing a bill from advancing to the next stage before they would be
invited to deal.

When the DMCA was pending, organizations like ACM, the Consumer
Project on Technology, EFF, EPIC, the ACLU, the National Academies, and
the newly-minted Digital Future Coalition tried to get involved.  EPIC
actually succeeded, thanks to the intervention of Rep. Markey, but the
other groups were shut out of the process. The DMCA's proponents
figured that they could ignore those groups without any risk that
members of Congress would actually vote against the bill, and they were
absolutely right.

Until recently, the Copyright Office saw its role as including the
defense of the public interest in Congress and the Courts.  The
Copyright Office general counsel for many years was a woman named
Dorothy Schrader, who believed strongly in the public domain, and
emphasized the importance of fair use and other limitations on
copyright.  (Disclaimer:  I didn't know Schrader.  I have heard from
people who did know her that they found her difficult to work with.)
During Schrader's tenure, the Copyright Office frequently took
positions that were unpopular with the copyright bar.  Schrader retired
about eight years ago, just as the effort to pass copyright laws that
dealt with the Internet began to heat up.  Her successors have viewed
the role of the Copyright Office, and the job of general counsel, very
differently.  The current general counsel, for example, came to the
post after a distinguished career representing copyright owners, and
the Copyright Office work product shows it.

When we add to that the conventional wisdom that copyright law
promotes free expression, spurs the US economy, reduces the trade
deficit, and generates massive campaign contributions, it has become
easy for Congress to ignore folks who object to expanded copyright
protection for the sake of the public's interest.
  

    
So ...

does "fair use" have any predictable meaning anymore for a user who is not
engaged in academic research or criticism?

Do you believe that the copyright owners intend to find more ways to use
the Internet to search out private uses and private transmissions by and
between individuals, for purposes that aren't commercial?
  

    

Hi, Jessica.

My review of your books -- which you've seen but maybe others here have
not -- can be read at <http://reason.com/0107/cr.mg.copywrong.html>.

One of the things you might get from reading recent issues of REASON
is the extent to which the REASON Libertarians get it when it comes to the
issues surrounging the expansive growth of copyright-related rights
and restrictions. I was a little surprised by this myself (I'm not a
Libertarian but am sort of a fellow traveler with the REASON and Cato
crowds), because you might think the Libertarians, with their emphasis
on property rights, would side with the copyright holders and the DMCA.

Instead, they tend to see copyright as a government-created monopoly -- one
in which the monopolists increasingly and successfully lobby for
more expansive monopoly rights. I find this hopeful, although one
looks at the DMCA and wishes there were more of these Libertarians around.

Could you say something about how you think the Supreme Court regards
copyright issues, and about how DMCA constitutional challenges might
play out if and when they get there?

The Supremes have been ready in the past to recognize limits on what
the copyright holders could insist on (as they did in the Sony v. Betamax
and Feist v. Rural Telephone cases). To what extent do you think
those two cases are informed by the Court's belief that there are
constitutional limits on what can be protected under the Copyright Clause
of the U.S. Constitution?
  

    
Hi Mike!

I think there's an excellent argument that the DMCA is
unconstitutional.  The Supreme Court in _Harper & Row_ v. _The Nation_
(the 1985 case over The Nation's summary with extensive quotations of
former President Ford's memoir) held that the fair use doctrine
accommodates freedom of expression interests, and that that's one
reason that copyright law is fully consistent with the first amendment.
 The opinion certainly implied that fair use is a constitutionally
required limitation on copyright.  As I know you know, Judge Kaplan
held in the DeCSS case that the anti-circumvention provisions of the
DMCA don't permit a fair use defense.  If fair use is constitutionally
required, though, then either Judge Kaplan is wrong about fair use or
the law should be held unconstitutional.  

That makes sense when you realize that trafficking under the DMCA is
broad enough to extend to telling people about weaknesses in encryption
software.  That's all Ed Felten was trying to do when he got a
threatening letter from the RIAA.  It's broad enough to cover using a
hyperlink or URL to tell people where to find something.  That's part
of the injunction against 2600 prohibits.  Laws forbidding people from
communicating about lawful activity because they might learn something
that would enable them to engage in unlawful activity are, and ought to
be, particularly vulnerable.

The problem is that first amendment and free speech claims in
copyright cases fail and have almost always failed.  This has led to a
perception that only desperate scoundrels even bother to raise first
amendment arguments.  The court of appeals for the DC Circuit ruled
last spring that copyright laws are categorically immune from any first
amendment challenge.  That ruling is being appealed to the Supreme
Court, and whether the Court decides to hear the case will tell us a
lot about whether the Justices are willing to consider this sort of
claim.

There's *some* reason for optimism.  The Court's copyright rulings
have been sensible more often than not, and free speech issues seem
important to both the liberals and the conservatives.  On the other
hand, the Court has emphasized its deference to Congress in copyright
matters.
  

    <hidden>
  

    

Now my question is, how does the notion of fair use being a
free-expression interest play into Sony v. Betamax? Does it have
affect our understanding of Sony, which seems to allow complete
copies of works under certain circumstances, even when it's not
transformative? Is Sony a constitutional decision or merely a
construction of statutory copyright law?

(And is Sony v. Betamax online anywhere?)

I ask because Sony has been at the heart of the defenses in the Napster
case and in related cases, and you'd think if Sony meant what it said
the defendants would have gotten more traction out of it.
 
I keep thinking the outcome of the Napster case reflects the same kind of
panic about digital media among judges that the DMCA reflects in the
legislature.
  

    
Sony v. Universal is online at
<http://laws.findlaw.com/us/464/417.html>.  The opinion is statutory
rather than constitutional, and it makes clear that Congress could
reverse the result by amending the law:

  "One may search the Copyright Act in vain for any sign that the
   elected representatives of the millions of people who watch 
   television every day have made it unlawful to copy a program
   for later viewing at home, or have enacted a flat prohibition 
   against the sale of machines that make such copying possible. 

   "It may well be that Congress will take a fresh look at this 
   new technology, just as it so often has examined other 
   innovations in the past. But it is not our job to apply
   laws that have not yet been written. Applying the copyright
   statute, as it now reads, to the facts as they have been developed
   in this case, the judgment of the Court of Appeals must be
   reversed."

That's not very comforting in the post-DMCA age.  I'm not at all
confident that if the Supreme Court revisited Sony it would decide
things the same way it did in 1984.
  

    
[Hidden response #16 was a duplicate.]
  

    

I just wanted to look at this again:

>Laws forbidding people from
 communicating about lawful activity because they might learn something
 that would enable them to engage in unlawful activity are, and ought to
 be, particularly vulnerable.

(to a constitutional challenge, that is)

It seems to me that even communicating ABOUT unlawful activity is
protected under the First Amendment, in the absence of a criminal
conspiracy ...  which opens up another whole can of worms, of course.

So if a teenaged hacker in Finland put up a website that contained
a lot of useful and legally neutral information, along with instructions
for defeating the Windows XP code algorithm .... it would be
unlawful for a US resident to place a link to that site on her own
US-hosted website, I guess.
  

    
Quick note: Clifford Lynch of CNI (Coalition for Networked
Information) is recommending this book as a solid popular intro to the
topic.  Another vote of confidence!
  

    
Thanks.  What I try to do in the book, and what a number of my
colleagues have been doing in speeches, op ed columns and their own
books, is to bring the story to a wider audience.  The only people who
tend to pay close attention to the copyright shenanigans in Washington
have been copyright lawyers and librarians. (Librarians recognized
earlier than most people how copyright law affects information policy.)
 More light can't possibly hurt.

In that connection, what happened to Napster may be a good thing. 
Napster provided an opportunity to listen to and share music that 60
million people found compelling.  The knights of copyright declared war
on Napster, rode into battle and killed it dead.  At least some people
have to be wondering why we would want to have a law in this country
that makes Napster illegal.  Is it because Napster allows music to be
shared without paying composers, record companies and artists?  Napster
offered to pay.  Is it because we want to make sure that composers and
artists can control the uses of their works?  If that's the reason,
does it matter that neither composers nor artists have control over
their works now, and that they didn't have control even before the
invention of computers?  These days, when copyright news comes down the
pike, more people (if not yet many) are paying attention.

There are news reports all over the web about a bill Senator Hollings
is planning to introduce that would require all computers and other
electronic devices to be equipped with copy protection.  The bill
further requires the copy protection to be designed to enforce the
copyright owners' choices about use of protected works without regard
to fair use and other stautory limitations.  (The bill narrowly
preserves consumers' current ability to time shift broadcast and
non-premium cable programming, but not consumers' current legal right
to make noncommercial copies of recorded music.)  The text of the
current draft of Security Systems Standards and Certification Act is on
cryptome at <http://cryptome.org/sssca.htm>; if you want nightmares,
go take a look.

Five years ago, this bill would have been quietly introduced and
referred to committee, and few people would have known it was even on
the table until after copyright owners and device manufacturers had
worked out a deal.  I'm confident that that won't happen this time. 
Indeed, I have a sneaking suspicion that the forces of Disney have
encouraged a quiet leak of the text of the bill precisely because of
the increased attention the news media is paying to copyright law
lately. 
  

    
Jessica, do you notice any party-line tendencies on the part of lawmakers
that make them more predictable than the Supreme Court justices?

Also, where are the legislative pressure points? Who should concerned
citizens be getting in touch with to express their views (especially if
you are a constituent of one of these legislators)?
  

    
I haven't seen much difference between the Democrats and the
Republicans.  Both parties want to be seen as pro-intellectual
property; bills co-sponsored by a Republican and a Democrat are common.
 

The Congressional committees that deal with these questions are the
Judiciary Committee in both House and Senate and to a lesser extent the
Commerce Committees in both House and Senate.  If you're a constituent
with someone who's assigned to one of these committees, by all means,
see whether it's someone who will listen. I'm an academic and not any
sort of a lobbyist, but I'm told that most members respond more
favorably to an appeal from business interests than from non-profits or
concerned citizens. Some of the members who sit on these committees,
unfortunately, are already bought and paid for.
  

    

I've written a column about the building of digital-rights-management
technology into our computers -- it can be found at <http://www.law.com/cgi-
bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZ4IB5MLK
C&live=true&cst=1&pc=0&pa=0>.
(Sorry for the bad URL.)

I draw the conclusion that, once hardware has DRM built in, we ought to
quit buying new computers.