Linda Castellani (castle) Thu 6 Sep 01 21:34
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!
No "punch the monkey" banner ads. (vard) Thu 6 Sep 01 21:42
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?
Jessica Litman (jessicalitman) Fri 7 Sep 01 05:31
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.
No "punch the monkey" banner ads. (vard) Fri 7 Sep 01 07:10
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?
Jessica Litman (jessicalitman) Fri 7 Sep 01 07:40
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.
No "punch the monkey" banner ads. (vard) Fri 7 Sep 01 10:13
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?
Jessica Litman (jessicalitman) Fri 7 Sep 01 12:04
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).
No "punch the monkey" banner ads. (vard) Fri 7 Sep 01 12:52
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?
Bob 'rab' Bickford (rab) Fri 7 Sep 01 14:11
And even if that's the case, does nobody in Congress understand the four little words "for a limited time"...?
experience uncut Martha (madman) Fri 7 Sep 01 14:39
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.
No "punch the monkey" banner ads. (vard) Fri 7 Sep 01 22:20
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.
Jessica Litman (jessicalitman) Sat 8 Sep 01 05:52
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.
Jessica Litman (jessicalitman) Sat 8 Sep 01 06:53
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.
No "punch the monkey" banner ads. (vard) Sat 8 Sep 01 15:05
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?
Mike Godwin (mnemonic) Sat 8 Sep 01 16:05
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?
Jessica Litman (jessicalitman) Sat 8 Sep 01 17:59
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.
Jessica Litman (jessicalitman) Sat 8 Sep 01 18:18
Mike Godwin (mnemonic) Sat 8 Sep 01 19:03
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.
Jessica Litman (jessicalitman) Sat 8 Sep 01 19:57
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.
Jon Lebkowsky (jonl) Sat 8 Sep 01 20:50
[Hidden response #16 was a duplicate.]
No "punch the monkey" banner ads. (vard) Sat 8 Sep 01 22:01
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.
Avi Rappoport (avirr) Sat 8 Sep 01 22:57
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!
Jessica Litman (jessicalitman) Sun 9 Sep 01 06:52
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.
No "punch the monkey" banner ads. (vard) Sun 9 Sep 01 15:26
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)?
Jessica Litman (jessicalitman) Sun 9 Sep 01 17:49
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.
Mike Godwin (mnemonic) Sun 9 Sep 01 19:43
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.
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