Slashdot Mirror
Siva Vaidhyanathan On Copyrights and Wrongs
Jason Haas writes: "While bad copyright laws such as the DMCA are having strong negative consequences, an even worse bill, the Consumer Broadband and Digital Television Promotion Act (CBDTPA), is now before Congress. The CBDTPA would have radical effects upon many of the devices that we take for granted -- including the computer you are now reading this on. Bad copyright law is among the many things that we talked about. Siva Vaidhyanathan has a thing or two to say about this. An avid defender of peer-to-peer, Siva recently debated one of the MPAA's top lawyers on copyright law. A recorded version of this will be available on the web in late May.
Furthermore, he has written Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, the first fully fleshed history of American copyright law ever to be put in book form. The cool thing about this book is that although it's about copyright law, you don't have to be a lawyer to understand it. Copyrights and Copywrongs covers American copyright law's origins in seventeenth century English law, tracks Mark Twain's efforts to extend copyright in the nineteenth century, and ends at the dawn of the twenty-first century with the rise of Napster and the DMCA."
Jason Haas: How are you?
Siva Vaidhyanathan : Stressed. I'm trying to finish my second book, which will likely be called "The Anarchist in the Library." Basic Books will publish it next year.
JH: That sounds like it may be of interest to Slashdotters.
SV: Probably. I lifted many of the insights from Slashdot posts. The book will be an examination of the battles between efforts to centralize information and efforts to decentralize information. It starts with peer to peer, and moves on to battles over encryption, the commercialization and regulation of science, the regulation of algorithms, and the efforts to fight terrorism using information policy. One of the most interesting stories I'm following is the role that encryption plays on both sides of these battles. Some efforts to centralize and control information rely on encryption. For example, DVDs, and some efforts to distribute and liberate information (Freenet) depend on encryption.
JH: Your book, Copyrights and Copywrongs, covers the evolution of copyright law from its origins to the late twentieth century. Where did you get the idea for this?
SV: From rap music. I grew up with rap music. But in the early 1990s I noticed the music was changing. Everyone else was paying attention to the lyrics -- the sexism and the violence and the anger. I was observing how the underlying body of samples were getting thinner, more predictable, more obvious, less playful. I had heard that there had been some copyright conflicts in 1990 and 1991. So I suspected that lawsuits had chilled playful and transgressive sampling. I was right. The courts had stolen the soul. And rap music is poorer for it. We used to get fresh, exciting, walls of sound that were a language unto themselves. By the mid-1990s, all we got were jeep beats and heavy bass.
JH: Are you dissing Ice Cube?
SV: [laughs] No! He's an O.G.! He and other artists are handcuffed by the law. From my research on rap, I got curious about the evolution of American copyright law and how it altered and got altered by the rise of different media technologies and forms of expression. So I traced the changes from the 19th century publishing industries through the rise of film and television, through blues, jazz, rock, and rap, and finally to the digital moment.
JH: The book ends just after the DMCA has gone into effect and Napster has begun its rise. What's happened since then?
SV: I knew that Napster would radically change the ways we interact with the copyright system. And I knew the DMCA would radically undermined the democratic safeguards that were built into our copyright system. But I knew that there was much more to this story. So I wrote an article for The Nation which defended Napster and peer-to-peer. I used this as the starting point for what would become the second book.
JH: In your first book, you refer to the DMCA as an example of what you call a "thick" copyright law. Can you explain the difference between "thick" copyright law and a "thin" law?
SV: I think the DMCA (Digital Millennium Copyright Act) is misnamed. I don't consider it a copyright act. I consider it an anti-copyright act. Copyright is a fluid, open, democratic set of protocols. Conflicts are anticipated by Congress and mediated by courts. The DMCA wipes out the sense of balance, anticipation, and mediation, and installs a technocratic regime. In other words, code tells you whether you can use a piece of material. Under copyright, you could use a piece of material and face the consequences. The DMCA replaces the copyright system with cold, hard technology.
It takes human judgment out of the system and drains the fluidity out of what was a humanely designed and evolved system.
But getting back to thick and thin copyright.
One way to measure the thickness of a copyright law is to look at the duration of protection. If works enter the public domain before an author's life expectancy expires, then it's a thin and democratic system. If the duration of copyright protection is absurdly long and potentially indefinite, then it's way too thick.
JH: Senator Fritz Hollings' has introduced a new copyright bill to Congress, the Consumer Broadband and Digital Television Promotion Act. What what would it do? Is it another "thick" law?
SV: Yeah, it would be as thick as the Berlin Wall. But again, it's the extension of a technocratic control regime and a further abandonment of real copyright. All the attention this bill has received has generated an impressive movement for users' rights. People are finally waking up to the fact that their rights to make private, non-commercial use of material they buy is in danger. I think we should all thank Senator Hollings and the MPAA for sparking a revolt against copyright tyranny.
The title of the bill implies that by giving movie companies what they want, they will give us this wonderful library of streamed films, and we will finally have a reason to sign up for and pay for broadband. Paradoxically, nothing sells broadband like peer-to-peer, which is exactly what it would try to stop.
JH: CBDTPA would make a new computer ship with copy protection. What would it do to things like the iPod?
SV: The iPod would be hard to justify under the new law. But the real issue is the personal computer. The computer does three basic things: it does math, it stores data, and it copies data. A computer can't operate without those three basic functions. The law would limit these three basic functions, thereby cutting the Achilles heel of the PC. It would be just another appliance.
JH: It's that bad?
SV: Yes. If the law passes, I could send you a file that I made, but the machine would prevent you from making copies of just about anything else, including sound from web sites, video from web sites, etc. The law works completely for the benefit of big media companies that can afford to conform to the licensed encryption standards of the industry. Only the big boys could benefit from this law.
The law would only affect new stuff, so it'd be your next DVD players, your next TiVo, your next PC. The stuff you have now is going to do more and work better than any hardware that anyone could roll out after the law passes. But there's another, bigger issue. According to an early version, the bill covers not just hardware but software. Under it, you can't distribute a software package that has copy features. Furthermore, how in the world can anything released under the GPL have closed copy-protection standards embedded in it? It can't. It would make the GPL illegal, and future versions of Linux illegal. Even if Congress focused on hardware and excluded software, we all know that distinction is a matter of modular convenience and industry practice rather than a natural distinction. But nobody ever accused the U.S. Senate of understanding technology or thinking through long-term effects of tech policy.
JH: What can people do to stop this bill from passing?
SV: The first thing people should do is check out and support such organizations as the Electronic Frontier Foundation, digitalconsumer.org, and publicknowledge.org. The latter two are fairly new. And they are a sign that people are getting angry and active about these issues. I am particularly excited about publicknowledge.org, a public interest advocacy group that is coordinating and publicizing the concerns of a wide array of concerned citizens and groups.
But just as importantly, discuss this measure with your local librarians. Librarians are very active in opposing it. In 1998, very few groups actively opposed the DMCA, but librarians were at the front lines of its opposition. And once again, librarians are our best friends in this battle. And of course, the simple answer is, write members of the Senate Judiciary Community. [The American Library Association is a national organization of librarians that is active in defending freedom of information and access. The Senate Judiciary Committee can be found over here.]
If public anger doesn't stop this bill now, then we know that the corrupting power of the entertainment industries is at crisis level. The changes in copyright have not been great for our culture and our democracy. But I am optimistic that this new level of awareness and activism will make a difference.
Jason Haas retired from the computer industry in April 2001, and now juggles being a student, fatherhood, and progressive political activism.
This past year, Siva Vaidhyanathan has been an assistant professor in the School of Library and Information Studies at the University of Wisconsin, but is moving to New York University in the fall. The web page for his book, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, is at NYU Press.
This comment intrigued me, so I looked in Mr. Vaidhyanathan's latest book:
Table of Contets
Karma: Good (despite my invention of the Karma: sig)
There are intentional limitations to the power an author holds over his/her respective copyrighted works. These limitations exist to encourage other individuals or companies to expand and build upon those copyrighted ideas/works, thereby increasing innovation and promoting scientific development for the benefit of the public. The most important limitation on author control is the "fair use privilege". This right of the people specifically addresses the ability of an individual to use copyrighted works without consent of the owner to a reasonable degree. In Sony v. Universal City Studios; the U.S. Supreme Court stated that, "any individual may reproduce a copyrighted work for a 'fair use;' the copyright owner does not possess the exclusive right to such a use." This "doctrine of fair use" was initially created via judicial review, but has since been intentionally written into copyright law. Although this principle may seem to be counterintuitive to the overall premise of copyright, it is an extremely important link between the inventor who wishes to recieve payment for his work, and the public that wishes to access and make use of it. The U.S. Supreme Court remarks, ""the fair use doctrine exists because copyright law extends limited proprietary rights to copyright owners only to the extent necessary to ensure dissemination to the public." This is directly correlated to the goals of the constitutional explanation of copyright.
The obvious issue associated with this doctrine is how exactly to detirmine what is fair use as opposed to copyright violation. The law is not at all clear as to how a process is to be determined "fair use", but over the years many examples have surfaced. In general, criticism, comment, parody, new reporting, teaching, scholarship, research, or personal use such as time of format shifting are considered to be within the guidelines of fair use. Companies have in the past been relatively acceptant of the fair use clause within copyright law. As of late though, the tide has shifted as corporate profits have taken an ever increasing priority over public relations and proper customer satisfaction. Older ethical standards for customer rights have become less important to business executives then their efforts to increase profit margins and market domination.
Just how exactly media corportions lost site of the usefulness of this doctrine is beyond me. Think of video rental stores: They facilitate piracy. With two VCRs I could own every movie under the sun for about 5 bucks a pop. I don't. Both is it not worth the time to pirate, but it is also easier to pay the extra coin to ensure a good copy. People will pay to support media they like and to ensure good quality fun. They will NOT pay for over-priced crap forced down their throats.
Likewise (and perhaps more importantly), it is idiotic of the RIAA to assume that every person downloading an MP3 is a "diehard" pirate. Since the media companies have not ventured into this new market (digital music) they facilitate the piracy better than any P2P network could.
I will not support corporate theivery.
-----------------rhad
Slashdot needs to interview Natalie Portman.
A few months back there was a Justice Talking (a show on NPR) that debated the DMCA, Siva was the voice against it, an MPAA rep (sorry, I forget the guy's name) the pro voice. I was in attendence at it's recording.
Some of the interesting tidbits from that session that I can remember (this was in October I think, so my accuracy should be called into question):
Someone suggested that DeCSS may not exist if there were a DVD player available for Linux. The MPAA guy argued that all programs written for Linux must be open-sourced, which would compromise what is essentially their security-through-obscurity scheme of handling CSS. And Siva AGREED! Now correct me if I'm wrong - isnt it possible to write programs for Linux that are closed-source?
Tidbit #2 - Someone asked about making backup copies and their allowance under fair use. The MPAA rep countered that making a backup of a movie (whether it be video or DVD) is not permitted under fair use. A big look of shock on many people's faces after that statement.
Justice Talking used to keep RealAudio recordings of their shows on their site, but I never did see this session on the site in the weeks following the debate for whatever reason. (I suspect maybe it didnt appear because they played a 3-5 second clip from a musical version of DeCSS during the show, and then asked the MPAA rep if they violated the DMCA) Unfortunately, looking at the site now you have to buy a transcript or CD recording.
The One Rule Of Chess You'll Ever Need: Don't play someone who carries a kit in their bookbag.
Thomas Jefferson wrote:
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody...
(letter to Isaac McPherson, 1813 as cited in Kock & Peden, 1972).
Jefferson believed that ideas, once released into the minds of others can no longer be considered the property of one person like land can be. But he also believed that the individual responsible for conceiving the idea should have some sort of just compensation for their ingenuity. It is the balance between these two concepts that forms the basis for fair intellectual property rights.
Sounds great to me. You've got a big vault, which may or may not be airtight. You've got Hilary Rosen. The possibilities may not be endless, but they're certainly obvious.
You guys aren't too shabby at a bit of 'propoganda' yourselves.
Far from freeing itself from oppressive monopolies, the framers of the US constitution used the British copyright law as a model. The controlled press to which you make rather hysterical reference in fact lapsed in 1694. It was replaced by the Statute of Anne in 1709, intended to free the press while protecting the rights of authors.
Attempts were made by copyright holders to increase their power, including extending the term from the then 14 year period to permanence, but these were struck down by Parliament in 1774. These issues were therefore much in the mind of the framers, and, as with the Bill of Rights, they made free use of the example set.
Perhaps the UK should have copyrighted the civil law book?
Reference: Law Professors Amicus Curiae in DMCA Case