Copywrong

Why the Digital Millennium Copyright Act hurts the public interest

(Page 2 of 2)

At the core of that radical shift, Litman explains, was "the assertion that one reproduces a work every time one reads it into a computer’s random-access memory." In fact, a few cases had held that such an event qualified as copying for copyright purposes, but the Green Paper treated this relatively new and controversial doctrine as if it were settled law. Those cases, transmuted by the Green Paper authors into dogma, may be the central cause of what Litman terms "the transition from an incentive model of copyright to a control model."

The Green Paper also set out to regulate transmission of a copyrighted work (e.g., across a computer network) -- both because such transmission should be interpreted as a public performance or display (which was already included in the copyright holders’ bundle of exclusive rights) and because, if it weren’t counted as a copy, it would in effect be a "distribution," which meant that "first sale doctrine" would end copyright holders’ interests. (The first sale doctrine is what makes it legal for you to sell your used paperbacks to a friend or to a used-book store without paying the copyright holder a dime -- it’s a policy that all but the copyright industries regard as a benefit to the public.)

Finally, the Green Paper endorsed the copyright holders’ right to use copy-protection and access-control technology to prevent unlicensed copying and use of their work. In addition, the paper called for new laws that would prohibit the circumvention of such technology and that would outlaw the creation or distribution of tools that could be used to circumvent it. The Green Paper authors could not make all unlicensed copying illegal -- that would directly contradict the public policy that allows some unlicensed copying, such as "fair use" copying of copyrighted works for scholarship, education, or review. (I’m engaging in fair-use copying in this article by quoting Litman’s book without asking her for a license to do so.) But if they couldn’t make it illegal, they could make it (legally) impossible, at least in the digital sphere.

The Green Paper evolved into a "White Paper," whose characterization of current law was less disturbing rhetorically but no less radical. Writes Litman: "Using the tools that good lawyers use when engaged in such tasks, the White Paper carefully explained that just about every ambiguity one could imagine, properly understood, should under the best view of current law be resolved in favor of the copyright holder."

As a result, she writes, "That approach enabled the authors of the White Paper to come to conclusions that would strike anybody but a copyright lawyer as extravagant....Since any use of a computer to view, read, reread, hear, or otherwise experience a work in digital form would require reproducing that work in a computer’s memory, and since the copyright statute gives the copyright holder exclusive control over reproductions, everybody would need either to have a statutory privilege or the copyright holder’s permission to view, read, reread, hear, or otherwise experience a digital work, each time she did so."

Because these seemingly extravagant claims of right energized academics, librarians, and, perhaps most significantly, communications service providers (telephone and Internet service providers who might themselves be held liable for users’ infringements under the White Paper’s reading of the law), the reforms recommended in the White Paper stalled in Congress in 1996. But the ever-resourceful Bruce Lehman discovered a workaround by pitching a version of the White Paper to the World Intellectual Property Organization (WIPO), which was crafting a new copyright treaty. While most of the White Paper recommendations were either diluted or not adopted at all, the anti-circumvention recommendations made it, albeit in much more moderate form, into the final treaty.

And with the treaty language in hand, Lehman and the copyright interests were able to come back to Congress and ask for implementing legislation, lobbying for anti-circumvention language that was far more draconian than anything demanded by the treaty. The result of this effort was the Digital Millennium Copyright Act, which became U.S. law in 1998. Although the DMCA includes many provisions -- notably safe-harbor provisions for service providers whose services are used by subscribers in infringing ways -- its most controversial aspects were its anti-circumvention provisions. As Litman writes: "Lehman argued to Congress that other nations would not act to prevent piracy of United States works until the U.S. Congress demonstrated leadership by enacting tough anti-piracy laws, that, for example, made it illegal to defeat copy protection (or to market devices or services that do so) for any purpose whatsoever. Representatives of the motion picture and recording industries backed up the commissioner’s arguments with prophecies of widespread international piracy unless Congress acted quickly. The world’s eyes, they said, were on America."

And Congress did just that -- it passed broad anti-circumvention provisions with narrow and not-entirely-clear exemptions. (Stephen King arguably has the right under the DMCA to write his own software to extract the text of Riding the Bullet for reading on his Mac -- it’s just that nobody can sell or give him a tool that does this for him.) The result was legislation that, as Litman writes, "is long, internally inconsistent, difficult even for copyright experts to parse and harder still to explain." Even worse, the law "seeks for the first time to impose liability on ordinary citizens for violation of provisions that they have no reason to suspect are part of the law, and to make noncommercial and noninfringing behavior illegal on the theory that it will help prevent [copyright] piracy."

Reading Digital Copyright is a little like reading Dante’s Inferno -- one follows the narrative with interest but also horror as things get worse and worse for the Constitution-created public interest that is supposed to be embodied in our copyright law. As in the Inferno there is no escape -- the copyright process has been dominated by the copyright lobby for so long that it is difficult for Litman (or for this reader) to imagine anyone in Congress recapturing control of it. But Litman does see, in the very awfulness of the DMCA, the potential for redemption. Because the DMCA is, well, a crazy and contradictory set of laws that will increasingly be applied to individual citizens, one likely outcome is that citizens will simply opt to ignore it -- to choose noncompliance. Plus, she writes, "The more burdensome the law makes it to obey its proscriptions, and the more draconian the penalties for failing, the more distasteful it will be to enforce." As a result of noncompliance and non-enforcement, the copyright lobby may be forced to revisit the DMCA and the Copyright Act in general. "Laws that people don’t obey and that governments don’t enforce are not much use to the interests that persuaded Congress to enact them."

Litman ends on the slightly hopeful note: "Even if copyright stakeholders refuse to give the public a seat at the bargaining table, they may discover that they need to behave as if they had." One can only hope that, if and when that turn of events comes about, policymakers are reminded that the public is the biggest stakeholder.

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