How Corporate Lobbyists Colonized the Net

In the mid 90s corporate lobbyists, panicked by file-sharing on the Net, succesfully manipulated Congress into passing watershed laws -- the Digital Millenium Copyright Act prominent among them -- that radically changed copyright law. These laws tilted the system of distributing ideas, culture and intellectual property towards the needs and interests of corporations, and away from centuries-old principles protecting freedom and an open culture. In Digital Copyright, Jessica Litman, a Wayne State Univerity professor and widely-recognized expert on copyright law, calls these laws "horrific" and details just how easy it has become for informational networks to monitor and restrict what people can see, hear and read. Publishers, movie studios, record companies and other content owners -- especially rich ones -- successfully got laws enacted that use technology to ensure they get paid whenever their works are used or transmitted. These new laws, Litman argues, are not only invasive, they corrupt the purpose of copyright and damage the free flow of ideas. (Read more.)

You don't need to be a copyright lawyer to get the basic idea: U.S. Copyright laws begin with the premise that neither the creator of a new work nor the general public ought to be able to appropriate all the benefits that flow from the creation of a new work. If creators can't make some money off of their creations, they have no incentive to create. If distributors can't earn some money from the works they distribute, they may not bother to distribute.

But all creators -- authors, musicians, artists, individuals -- borrow raw material to build their works. Novelists, sculptors and programmers, Litman points out, incorporate ideas, language, code, building blocks and expressive details they first encountered elsewhere.

If creators were given control over every element and use of everything they made, there would be no raw material left for others. The threat of legal action and liability would enter the creative process at every level. The flow of ideas could decrease or even dry up, caught in legal struggles and bounded by economic and other costs. The idea of American copyright was to give authors enough protection so they would keep cranking out new ideas, but limit that protection so that the flow of ideas would be enhanced. In terms of the vigorous movement of ideas and opinions, the idea worked well for more than two centuries.

Thus, writes Litman in Digital Copyright, "both as a matter of fairness and as a matter of promoting learning by encouraging authors to create works and the public to consume them, copyright has always divided up the possible rights in and uses of a work, and given control over some of those rights to the creators and distributors and fix others to the general public."

It is precisely this principle that corporate lobbyists destroyed when they got Congress to pass new kinds of copyright laws specifically in response to the growth of the Net and the complex challenges to existing intellectual property conventions that it posed. Because of the pinpoint precision of software data tracking and collection, these new laws theoretically require everyone to pay for every bit of every creative work they access, use or transmit. As the Napster flap demonstrates, the end result is that corporations benefit -- not artists, whose access to ideas is severely limited, or the general public, which now has no legal right to freely control or distribute any part of the creative works they access.

Corporate lobbyists made it a federal crime to transmit any part of a copyrighted work. In addition, the DMCA held site operators liable for all the damages incurred if any part of copyrighted works were transmitted over their sites.

As a matter of policy, Litman writes, these shifts in copyright law have "horrific" implications.

Setting the basic "compensable" unit of copyright (which is also the basic infringing unit) at the level of the (ephemeral) copy in volatile memory of your desktop computer involves the fundamental operation of computers in copyright on what is essentially an "atomic" level. (Most of you reading this know this, but in case some don't -) And since a computer works by reproducing data in its volatile Random Access Memory -- RAM -- so anything that exists in volatile memory could theoretically be saved to disk -- the appearance of any portion of a work in any computer's RAM is a reproduction within the meaning of federal copyright law.)

"It means," Litman writes, "that all appearance of works in computers -- at home, on networks, at work, in the library -- needs to be effected in conformance with, and with attention to, copyright rules. That's new. Until now, copyright has regulated multiplication and distribution of works, but it hasn't regulated consumption."

It does now.

If you buy a book, or even borrow one, you can read it as many times as you like. You can lend it or rent it to a friend, sell it or give it away. You can't legally make copies of it, but you can use it as many times as you want. But if every time a work appears in RAM, you are making an "actionable copy," then for the first time copyright owners have been given almost total control over the consumption of their works. Each time you open Microsoft Word to edit a document, you could eventually need Microsoft's permission. Each time you use your computer's CD-ROM drive to listen to a CD you bought, you need a license from the record company. Every time you view a Web page with a picture of Mickey Mouse, you need permission from Disney.

That is the direction in which laws like the DMCA are taking us, Litman says, and it's not accidental. That's the agenda of corporate copyright lawyers, who are largely unopposed in Congress or Washington. Hackers and other digital enthusiasts have long viewed cyberspace as unpoliceable and governable -- too big, individualistic and complex. Corporate lobbyists disagree: They see the Net as a potentially lucrative colony, over which incalculable amounts of copyrighted information can eventually be distributed at enormous profit. And they've taken signficant steps to conquer it.

When Congress passed the Communications Decency Act, cyber-liberties organizations were in an uproar. But few groups online paid much attention to the intense lobbying underway -- mostly out of sight -- involving copyright. The public had no real sense that Congress was passing laws that would put copyright owners in a position to claim exclusive "reading", "listening," and "viewing" rights to copyrighted works.

When copyright laws were initially passed, government was trying to protect individual authors. But most copyrighted material is now distributed by giant media conglomerates. The whole context in which copyright was originally conceived has changed, yet there seems little consciousness of this new reality in Washington or among political parties and interests.

Litman's is one of the best, clearest, most cogently organized and accessible books yet written on the travesty that is the DMCA, which President Clinton blithely signed into law while the Tech Nation dozed. The DMCA is the price a culture pays for ignoring politics, and we'll be paying for this legislation for a long time to come.

Copyright owners' enforcement strategies have mostly been limited to threats, litigation and ham-handed public relations and media campaigns aimed at convincing Americans that they ought to disapprove of unauthorized use. While that strategy can work against a specific target like Napster, or intermediaries like a college or large company (since these large targets have assets to be threatened by litigation), it works far less well in deterring individuals. In fact, says Litman, a variety of new applications (Gnutella, for instance) have popped up to permit individuals to wantonly violate these new laws, and the wave of copyright lawsuits has only encouraged this trend. Napster recently topped 62 million registered users, few of whom believed they were thieves, suggesting the DMCA wasn't a law with much popular support.

Yet eventually, in order to fully enforce the rights that content owners now claim, it will be necessary to go after individual consumers. Noncompliance becoming endemic, even institutionalized, would become the single most important factor in determining the fate and future of copyright. Litman observes that people don't obey laws they don't believe in.

Litman also points out in Digital Copyright that the conflict over the scope of copyright on the Net is being fought in the usual way: "Representatives of private interests are simultaneously jockeying for advantage while offering to sit down at the bargaining table and negotiate a deal that they find satisfactory. Senators and representatives make general pronouncements about the importance of the issues raised and the need to find the right answer, while assuring the various interests that their doors are open and they would be delighted to broker a negotiated solution."

Litman used to believe that bad copyright law derived from lack of congressional expertise of the issues involved -- especially complete ignorance of the Net and the Web -- or a lack of interest in the details. But she came to a different, more ominous conclusion. "More and more," she writes, "it seems likely that at least many of the legislators who seek to promote inter-industry consensus are hoping to score a substantial portion of the money being poured into copyright lobbying."

Litman's book is bleak. The only ray of hope she sees is consumers' widespread noncompliance. She points out that the battle is lopsided, to say the least. Individuals and individual rights have few lobbyists in Washington.

Look for Michael's take on this book soon as well.

Comments

Copyright as a social contract

[jms]

What the copyright industry is forgetting is that copyright has traditionally been a social contract.

In general, publishers agree to publish works, making them available to the public. The public gains two important benefits from this half of the bargain.

First, works are placed in the public domain in two ways. First off, the copyright is supposed to expire eventually, but there is another sense of the "public domain", which is "material available for public use." For instance, If you want to quote a paragraph from a copyrighted novel in your English paper, you are allowed to do so. This is fair use. It ensures that copyright serves the purpose of promoting learning and education.

If you want to sell your used book, you are allowed to. This is first sale. It ensures that works survive by placing copies of those works in private hands, and preventing the authors or publishers from reclaiming them or interfering with the public's use of them.

In exchange, citizens agree not to compete commercially with the publishers in exploiting their work.

This theme runs up and down through copyright law, with the notable exception of the DMCA. The DMCA is really anti-copyright. It is everything that copyright is not supposed to be. The DMCA was designed to allow publishers to renege on their half of the social contract.

Under the DMCA, the publisher is not obligated to place a work in the public domain in either sense of the word. Even after the copyright term expires, an encrypted work remains encrypted. There is no obligation, or provision, for an encrypted work to be unencrypted upon copyright expiration. And none of us will live long enough to see it happen. In the second sense of the "public domain", the DMCA allows publishers to use technological measures to prevent fair use. Want to quote a paragraph from an encrypted e-book by cutting and pasting? That's illegal if the publisher says so. Want to sell your copy of that e-book? That's also illegal if the publisher says so. not because it's illegal under copyright law, but because it's illegal under the DMCA, which is anti-copyright law.

There are probably three ways that the copyright crisis can resolve -- either:

1) The public learns to accept the fact that their rights to read, quote works, and own and trade copies of works has been permanently banished.

2) The courts strike down the DMCA.

3) Sensing that the publishing industry is no longer bound to the traditional obligations of the copyright social contract, the public abandons their half of the social contract. Copyright violation becomes like drinking during prohibition -- just another bad law waiting to be struck off the books.

Make no mistake, copyright is in crisis. When Congress wrote the DMCA, they completely got the problem backwards. The problem isn't that a thieving public is waiting breathlessly for the opportunity to strip copyright holders of all their rights. The problem is that a thieving copyright industry has been waiting breathlessly for the opportunity -- the DMCA -- to strip the public of all their rights.

The endgame is now in motion, and I predict that it will result in either the destruction of the DMCA, the destruction of consumer rights, or the destruction and abandonment of copyright itself.

Never forget that copyright originally arose as an instrument of censorship. It was a stroke of genius to transform an instrument of censorship into an instrument to promote progress, and all it took was an ignorant Congress, and an opportunistic publishing industry, to change it back.

Re:Copyright as a social contract

[jms]

I like that part. You say that copyright originally started as an instrument of censorship. You couldn't be more wrong. Copyright protects the author and helps them continue producing their goods.

Copyright was originally invented to counter the threats of a new digital age -- the invention of movable type by Gutenberg. Before the invention of the printing press, there was no such thing as copyright. The powers-that-be at the time, specifically the British Crown, were worried that this new technology could be used against them, and they passed laws to ensure that it would be brought under royal control.

The new laws were called the "stationers copyright." In exchange to submitting to censorship by the crown, book publishers were given the exclusive right to publish books, and to suppress unauthorized publishers by destroying their presses and burning their books. Copyright had no requirement of originality -- a publisher could, for instance, publish an edition of an ancient work -- by Socrates, for example, and claim exclusive copyright over it. The copyright laws were unpopular, and the crisis came to a head around 1710. The Crown stood ready to completely abolish copyright, but the publishers came to the table with a new strategy.

The result was the Statute of Anne. In the new copyright regime, instead of the copyright benefit being assigned to publishers, the new copyright benefit would be assigned to authors. The term would also be time-limited; not a feature of the original censorship law.

The authors of the U.S. Constitution debated whether or not the United States should even have copyright. In the end, they authorized -- but did not require -- the government to establish copyright laws, but phrased the copyright clause to follow the principles of the Statute of Anne:

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;

Note that the purpose of the copyright clause is not to benefit authors. The purpose of the copyright clause -- and all legitimate copyright law -- is to promote progress. Benefiting authors is the means of the copyright clause, not the end.

The DMCA is in essence an end-run around the entire body of copyright law. Under copyright law, you are allowed to make fair use of works, and you are allowed to resell legitimate copies of works without the permission of the publisher. What the DMCA does is forbids one from having the means to exercise one's rights without the permission of the publisher. That is unconstitutional, wrong, and a violation of everything that copyright stands for.

But yes, copyright did originate as a system of pure censorship and government control. Good copyright law is a very delicate balance -- much like the other systems of checks and balances in the Constitution. All it takes is one bad law to wipe out 300 years of good copyright law, and revert to the original censorship law.

My argument stands. Copyright law has been so debased, that copyright itself has reverted to its original purpose of censorship and suppression. Except that instead of government doing the censoring and suppressing, now it is the corporate state, arguably more powerful and more dangerous than the government.

Re:What's the big deal?

[WNight]

Oh yawn! Go troll another one.

Any 'intellectual property physical property' comparison is a troll. IP can be copied and still exists for the original creator, physical property can't be magically duplicated. Until you adress that issue you're just adding to the N side of the S/N ratio.

Your IP is based on the collective history of the world. Where would be be if Shakespeare had the courts uphold a broad copyright on the idea of a tragedy, and his heirs sued people for creating derivative works? What if Calculus was patented and mathmeticians were sued for using it?

That's the kind of bullshit you're arguing for. Your IP is not an island. It exists on the foundation of other works, you don't deserve a universal monopoly on your ideas anymore than everyone your derivative life (and everyone else's) is based on deserve royalties when you do something that's unoriginal.

The *ONLY* viable alternative to limited and expiring IP protection is *NO* IP protection. If everyone's IP was treated as special just because they were the first to take it to court, there'd be nothing new done.

Accept that your precious 'IP' is really 10% yours and 90% based on the previous work of others. You're lucky to get the protection you do.

Re:Towards an Open Source Society.

[WNight]

A lack of privacy won't make people tolerant of others, it'll simply enable them to persecute others for their differences.

You think we'll stop demonizing politicians for cheating when we see our own spouses cheating? Or will we take a copy of that video to court in order to win a favorable divorce settlement?

Will people be free to do what they want, or will their employers and neighbors discriminate based on what they do on their own time?

Maybe your boss will fire you for checking out a porno site on your own time. Maybe the cops won't help you because they know you visited a counter-culture site that was critical of some Rodney King-esque brutality.

Mass spying is bad enough, but automate it and let people have a computer tabulate certain events... That's a sure recipe for a totalitarian state where everyone follows the strictest people's morality for fear of being labelled a pervert or deviant and ostracized.

When AI systems can recognize faces they'll follow people from camera to camera. And then you'll have AI designed to spot behaviour, sex, eating, nose picking, etc. Whatever someone wants to make the social evil of the week will be recorded and used against their enemies.

There is *no* freedom is constant surveilance.

absolutely must-read essay on this topic

[eries]

I'm beginning to repeat myself myself on this topic, but I feel compelled to post this link to one of RMS' best written pieces on copyright: http://www.gnu.org/philosophy/reevaluating-copyrig ht.html.

I especially recommend it to those who only know RMS by reputation, and not from his actual writings. This one is particularly cogent, concise and undesrtandable. I consider it mandatory reading for any layperson interested in modern copyrigyt issues.

This is why I don't sleep well at night...

[Zandromeda]

It never ceases to amaze me how hypocritical our society and our government are. We extoll the virtues of a democracy and of freedom of this, freedom to do that...unless there is money to be made from it. Then we have to control it, monitor it, get lawyers and congressmen involved, and tell people what they can and can't do with it until it's been suffocated to death and no one can remember what the hell it was in that everyone got so excited about in the first place.

Towards an Open Source Society.

[David St John]

I think that people are getting to worked up over privacy. The concept of privacy is really a modern invention, mostly considered a fundamental right in the Western countries. Primitive societies have no concept of privacy at all - they live among each other, and do not have any private space at all.

I think that western societies are heading towards this again. Imagine it is the year 2100. Cameras are absolutely everywhere, and the internet allows everyone to find out everything about everbody else. It would be, if you like, an Open Source society.

What would the consequences be? As follows:

1) Crime would greatly decrease. We can see this already in Britain with CCTV systems.

2) Greater honesty in society. People would no longer be able to lie about their personal lives.

3)Less hypocrisy. Nobody would expect our politicians, wives etc to be perfect. There would be better understanding of human nature.

A transparent, Open Source society needn't be a bad place to live. I think it would be better. The concept of what is a right and what is not would surely change, but I think that an Open Source society would be far more pleasant to live in that early 21st century America. The old must be wept away. Privacy is a function of fear - the fear of others. If that privacy is removed, the fear is too.

Many Eyes Make All Crimes Shallow. In an Open Source society, all foibles, crimes and misdeameanours would be in the open. No more hypocrisy and a much more pleasant life for all would be the result.