Why the Digital Millennium Copyright Act hurts the public interest


Digital Copyright: Protecting Intellectual Property on the Internet, by Jessica Litman, Buffalo: Prometheus Books, 225 pages, $25

There's a war going on over the state of copyright law in this country, but it's a war whose battles are largely being fought covertly. On the occasions when the conflicts are made public, they have not been recognized for what they signify. What has gone mostly unseen and unremarked upon is the effort by industries who benefit from copyright law to shift the balance of the law forever in their favor, and away from the public interest that, according to Article I of the U.S. Constitution, is supposed to be the beneficiary of copyrights. (The Constitution expressly says that copyright and patent laws are designed "to promote the Progress of Science and useful Arts.")

In Digital Copyright, Wayne State University law professor Jessica Litman has set out to chronicle that war, and her book is as refreshing in its passion and polemical nature as most law-review articles on the subject are mind-numbingly tedious. Try to talk to any normal American about how this country's copyright law has gone off the rails, and you'll likely witness a new speed record for how quickly his eyes glaze over. That's why, when I want to communicate the horror of modern copyright law, I use the example of horror writer Stephen King, who (at least in theory) is a potential victim of the current state of the law.

Last year, King decided to experiment with online distribution of his fiction. His first experiment involved a novella called Riding the Bullet, which Simon & Schuster distributed in formats that could be read only on Intel-based PCs running the Windows operating system. This troubled King a bit because he (like me) is a devoted Macintosh user. King told reporters at the time that as a dedicated and long-term Mac user he was "surprised and a little unhappy at how hard it is for Mac users to access the story." Even in its Wintel versions, there were limits on users' access. Someone reading it through Glassbooks' or Netlibrary's proprietary e-book technology—as required by the official downloadable versions—was prevented from copying any of the text or from printing it out. Simon & Schuster explained that it disabled the reader software's printing and copying functions to prevent piracy.

This odd state of affairs—a book offered in electronic format that cannot be easily read on the author's own computer—gives rise, when looked at in the context of current copyright law, to an interesting thought experiment. Suppose a Stephen King fan purchased a copy of the Wintel-based downloadable story and asked a friend to reverse-engineer a way of reading the story on his Macintosh computer. That bit of inventiveness might create a liability for the friend under the Digital Millennium Copyright Act. Or suppose that a King fan offered King himself a software tool that might enable the author to sidestep the e-book's encryption and extract the story for easy readability on the author's own PowerBook. That too is a violation of the DMCA, according to the reasoning of recent court decisions construing it.

One of Litman's purposes in Digital Copyright is to communicate precisely how the DMCA, with its draconian provisions and apparently unanticipated consequences, came to pass. Another purpose is to spell out the process by which copyright law is crafted in this country. (It turns out that Congress, by its own choice, tends to be only peripherally involved in drafting the law.) And still another is to explain the hugely deleterious public consequences of the shift in copyright law—a shift of which the DMCA is only one part.

The guts of that shift have to do, Litman explains, with a longstanding disagreement among copyright theorists as to what the underlying rights of copyright are and ought to be. According to one view, copyright interests are the product of a kind of bargain between the government and creators—a bargain that Congress, pursuant to the "copyright clause" of Article I of the U.S. Constitution, has the right to shape. Under that bargain, Litman writes, "Authors are given enough control to enable them to exploit their creations, while not so much that consumers and later authors are unable to benefit from the protected works."

But exactly what rights remain in the creators' control—or, as is most often the case, the publishers' control—is a matter of some controversy. The constitutional language itself is no unambiguous guide—it simply grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." But what does "exclusive Right" mean? And what does "limited Times" mean? Litman spells out the controversy: "Some people insist that copyright owners are entitled to just enough control to provide an economic incentive for their creation, since the broad purpose of copyright is to promote knowledge by encouraging authors to create and disseminate their works. Others argue that the only uses of a work that are properly excluded from the copyright owner's control are the ones that have no significant economic value."

It is the latter view that has come to dominate the shape of American copyright law in the course of the last quarter-century, and much of Litman's book explains how this happened. The fundamental explanation, according to Litman, is that Congress has essentially delegated the business of writing copyright law to the copyright industries, which have used technological advance as a rationale for expanding its protected interests under the law.

This was not always the case. "The first U.S. copyright statute," she reminds us, "gave authors exclusive rights to 'print, reprint, publish, or vend'—in other words, to control the reproduction and sale of copies." At its heart, that law concerned commercial copying and commercial distribution of creative works—a fairly limited set of government-created rights that did not address things like performances and recordings. For a while this was OK for (to take Litman's example) composers of popular music. Sure, under the then-current copyright law they had no copyright interests in performances, but performers had to buy the sheet music, so composers got their revenue indirectly. But technology changes things: "Once it became possible to record a musical performance on a piano roll or phonograph record and to make and sell hundreds of those, or to broadcast performances over the radio, however, composers could be excluded from the additional proceeds generated by the recording or broadcast….Thus, each technological advance inspired a dispute about whether it entitled copyright owners to expanded rights over their works."

That pattern in itself was neither remarkable nor particularly threatening to the balance of rights then built into copyright law. But at the turn of the last century, Litman writes, "Congress got into the habit of revising copyright law by encouraging representatives of the industries affected by copyright to hash out among themselves what changes needed to be made and then present Congress with the text of appropriate legislation. By the 1920s, the process was sufficiently entrenched that whenever a member of Congress came up with a legislative proposal without going through the cumbersome prelegislative process of multiparty negotiation, the affected industries united to block the bill." What we have been left with, over the course of the last century, is industry-written legislation defining the terms of the copyright bargain—and the purported beneficiaries of that bargain, the public, have not been at the negotiating table.

As a result of this legislative pattern, which Litman documents in detail for each of the major revisions of American copyright law since 1909, the resulting legislative efforts have "predictable features." They expand copyright owners' rights, both by extending copyright interests expressly and by characterizing existing law in ways that have the effect of extending copyright interests. And they appease other groups that might otherwise be troubled by these extensions. They do this by crafting special exceptions—librarians are appeased by a special copying privilege for libraries (which requires a legislative definition of "library") and broadcasters are appeased with a special broadcaster privilege (which requires a legislative definition of "broadcaster"), and so on. The result is statutory law that expansively defines copyright holders' rights but is also riddled with special exceptions and definitions and provisions. As Litman writes, "The copyright law has gotten longer, more specific, and harder to understand."

And, perhaps more important, the increasing expansiveness of the copyright law has led to a shift in the theory behind the law. What began as a government-created monopoly established in the public interest has increasingly come to be understood, especially by the copyright industries, as a kind of natural right. Which means that copyright policy nowadays is discussed less in terms of where the rights interests should be split between creators and the public and more in terms of preserving creators' livelihoods, or their "fundamental" rights to their creations.

Added to this quasi-natural-rights approach to copyright has been anxiety about the Internet, which has been widely characterized (by yours truly, among others) as a global network of copying machines. Suddenly the threat to the copyright holder is not, primarily, competing commercial interests (although the drumbeat over the threat of commercial infringers never lets up in the policy arena). Instead, it's ordinary citizens, whose use of new technology to trade copies of copyrighted works—such as songs reduced to MP3 files—not only makes those works easier for foreign and domestic commercial infringers to find, copy, and sell, but also may have a commercial impact all by itself, as Internet users cease buying new CDs and other copyrighted products. (Whether Internet users have actually quit buying CDs and the like in significant numbers is a matter of hotly contested debate.)

This panic led, by a somewhat circuitous path, to the Digital Millennium Copyright Act, whose provisions lead to anomalous results of the sort that might affect Stephen King's rights to read his own published works on his own computer. That path began in the early 1990s, when the incoming Clinton administration set out to shape policy for the "National Information Infrastructure," its new name for what had been termed, for a brief period at the beginning of the decade, "the information superhighway." Content policy was delegated, ultimately, to a working group on intellectual property that was chaired by Bruce Lehman, the newly appointed patent commissioner and a former copyright lawyer for the computer industry. Not surprisingly, his senior staff included former lobbyists for the copyright industries. After hearings that included testimony from major information-industry players, the working group came up with the "Green Paper"—a draft report on the state of copyright law that made recommendations for what it characterized as minor changes and clarifications in the law. "The minor changes it recommended, however, appeared to many interested observers to attempt a radical recalibration of the intellectual property balance," Litman writes.

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.