Mike Godwin (mnemonic) Sun 9 Sep 01 19:46
I bring up the column because I want to hear what you, Jessica, think we can do as individuals to discourage this move towards a more copyright- control-centric world. Also, why did Disney want the Hollings bill leaked? And ... did you find it hard to get a book that challenges a lot of current dogma published by a traditional publisher? Did you have to shop the book around?
Mike Godwin (mnemonic) Sun 9 Sep 01 22:09
Also ... have you read Siva Vaidhyanathan's new book, Copyrights and Copywrongs? He seems to want to cover a lot of the material Digital Copyright covers, but from a less legal perspective. (Even more than you are, he's shooting for a popular account that gets people upset at the way things are.)
Jessica Litman (jessicalitman) Mon 10 Sep 01 06:49
My impulse is the same as yours: I would respond to any era of mandatory DRM by postponing as long as I could the purchase of a new computer, television, CD player, VCR... Eventually, I'd upgrade (to be compatible with the equipment at school, or because the old machine was incompatible with some necessary new application, or because the old device was too broken to fix) and keep the old machine running at home until it died. The question is whether people with that impulse make up an appreciable share of the market, and my guess is that we don't. If we complain enough, though, we may be able to persuade others. Talking about these issues, writing columns about them, putting up websites may help to persuade politicians that the public's interest is not what they're being told it is, or at least persuade people that the conventional rhetoric is badly skewed. Folks whose eyes glaze over when the subject is copyright tend to perk up a bit if the issue is framed as one of freedom or privacy. If a large slice of the general public and the politicians who represent them become convinced that this is a cluster of issues the public cares about, it becomes an easier war to fight. EFF has done an enormous amount along those lines, providing the 2600 and Skylarov defenses and operating a copyright media machine to make sure the major newspapers hear about it. Professor Jamie Boyle at Duke has suggested that we need to follow the model created by the environmental movement, seek out the people who ought to be outraged and persuade them to form alliances. Why do I suspect Disney of being a source of the leak? I have no inside knowledge. I first read about this bill in July, on a music-oriented mailing list I subscribe to. I read a couple of news stories about it in August, and the information about the bill seemed to come from Senate staffers. But the recently released language of the draft is so far from being enactable that it seems likely to me that it was released in order to allow its supporters to identify and control the response to the politically important sources of opposition.
Jessica Litman (jessicalitman) Mon 10 Sep 01 07:26
I haven't yet read Copyrights and Copywrongs, although I have read a number of Vaidhyanathan's shorter essays. I did have trouble shopping Digital Copyright. Publishers were interested in a How-To-Protect-Your-Work-On-The-Internet book, or a Why-We-Need-More-Copyright-Protection-on-the-Internet book. A couple expressed interest in a book that discussed in an evenhanded manner all of the pros and cons of increasing copyright protection to prevent infringement on the net. None of those were the book I wanted to write. A colleague of mine who had published a book with Prometheus put me in touch with the editor; for some reason he did want the book. By that time, though, I had become dissatisfied with the manuscript, and had decided to put it away for a while and see whether I had something more cogent to say in a year or two. Every three months, Prometheus would send me an email renewing its offer to publish the book, and eventually I sat down with the manuscript and rewrote it. I gave it to Prometheus rather than trying to shop it again because I figured that the editor's persistence should be rewarded -- without his quarterly reminders, I'm not sure whether I would have ever taken the book back out of the drawer.
Jessica Litman (jessicalitman) Mon 10 Sep 01 07:43
Jessica Litman (jessicalitman) Mon 10 Sep 01 07:45
What else can individuals do? I get a fair amount of flack because I've suggested that civil disobedience and widespread disregard of the copyright law is a hopeful sign. Lawyers and law professors shouldn't say stuff like that, and I dont mean to tell people to go out and disobey the law. That would be lousy legal advice. What I mean is this: I think that it's a terrible idea for copyright owners to try to exercise control over individual consumers' consumption of their works. The fact that 60 million people downloaded songs from Napster without regard to legality seems to me to be a good thing. The fact that media reports tell us that now that everyone knows that it's unlawful, even more music is being exchanged over peer-to-peer Networks than before gives me hope. It suggests to me that laws that seek to control and micromanage individual consumption are unlikely to work. Laws that work badly are easier to change. Even if they weren't, I've decided that I prefer an ineffective bad law to an effective one.
No "punch the monkey" banner ads. (vard) Mon 10 Sep 01 12:39
Jessica, what would a fair and reasonable (and scaleable as new technologies emerged) copyright law look like? Would it just be a matter of reserving commercial exploitation rights to the copyright owners? Or would there be more to it than that?
Jessica Litman (jessicalitman) Mon 10 Sep 01 13:43
There are a lot of ways one could design a reasonable, fair copyright law. I lay out one proposal in the book that I think would work, but I can imagine others that would work as well. In many ways I am exactly the wrong person to ask, because my brain has been mangled by nearly 20 years as a copyright lawyer. Here are general principles that I think are key (but as I said, my views on these issues are warped by excessive familiarity with the odd law now on the books): First, the law should be short, and it should be general. Both the rights and the limitations could apply with equal force to current technologies and future ones if we phrased them in general and flexible terms. Two provisions in the copyright law that have aged pretty well are the fair use doctrine and the first sale doctrine. Second, the law should enable the creators of works of authorship to be paid for their work -- something we don't do very well currently, because of our law's emphasis on facilitating corporate copyright ownership (by encouraging assignment and by operation of the works made for hire doctrine.) Third, the law should enable people to use, learn from and reuse works of authorship, since, after all, that's its core purpose. That means we need to be sparing with the degree of control over downstream uses that we allow the copyright owner to exercise, and we need to be protective of the public domain. Copyright law has never given copyright owners control over all aspects of their works or over all uses of their works. That's a feature not a bug. If control is a means to the end of payment, we can explore alternatives that are payment-based rather than control-based. We've learned this year that there are applications that people are enormously interested in that simply are not possible if each use requires a license. (Among other things, it is nearly impossible to find out from whom one needs a license for what uses.) Saying that securing copyright owners' control is more important than facilitating highly desirable uses is getting it exactly backwards. Finally, I think people want to be able, and ought to be able, to read, view, listen and engage in noncommercial personal copying and to do so without extensive monitoring and licensing.
Bob 'rab' Bickford (rab) Mon 10 Sep 01 14:17
What about the time dimension, Jessica? How _long_ do you think that copyrights should last?
Mary Eisenhart (marye) Mon 10 Sep 01 17:43
And what, if any, rights should belong to the creators and not be assignable to corporations? E.g. the U.S. has no equivalent of the European "moral rights," which I think is wrong, wrong, wrong. Though mileage varies considerably.
Jessica Litman (jessicalitman) Mon 10 Sep 01 18:31
One has to pick one's battles, and I haven't personally weighed in on either the copyright duration or the moral rights question -- I have opinions on these two issues, but I'm not suggesting them as a prescription for a saner society. On copyright duration, I think it was unfortunate that we extended copyright so that it lasted a lifetime, much less longer than a lifetime. I think that decision eroded the principle that copyrights encompass limited rights for limited times in works that are ultimately intended to enter the public domain. I can see a significant justification for term extension in our adjusting our copyright terms to permit us to join international treaties. For that reason, I believe it may have been reasonable to extend the copyright term prospectively for future works in order to meet the Berne convention minimum. I also think that retroactively extending existing copyright terms, something Congress has done repeatedly, was completely lawless, and I have yet to hear a good excuse for it. The moral rights question is trickier. On the one hand, I think that significantly increased creator rights would in general result in broader dissemination and a more reasonable balance between copyright owner rights and public user rights. (Part of this dynamic is that creators are often less interested in keeping control of market sectors and more interested in distributing their work widely and earning money from it. The other part is that if the current major entertainment and information businesses had to face the exercise of continuing control by the individuals who created the works, they would soon find much to like and much to fight for in the copyright limitations that they are now treating as unwarranted loopholes.) At the same time, the classical European model of moral rights seems to allow less room than US law for parody and other critical uses. Many creators don't want to be made fun of; Irving Berlin sued Mad magazine for running parody lyrics "to be sung to the tune of" some of his songs. Moral rights also can substantially restrict the ability to create derivative works or make other transformative uses. Consider how a copyright law with moral rights would have treated Alice Randall's "The Wind Done Gone." My bottom line is that pasting European moral rights on to US copyright law (which gives full copyright protection to many more things than does the law in other countries), would probably do more harm than good. What I'd personally like to see Congress do instead (!fat chance!) is first, repeal the work for hire doctrine, and second, adopt legal provisions that discourage and perhaps prohibit "all rights" assignments. But, as I said, neither of these issues are ones on which I've concentrated, and neither is an issue on which I feel as if I have great insight or wisdom.
No "punch the monkey" banner ads. (vard) Mon 10 Sep 01 20:42
I tend to agree w/r/t moral rights - speaking as a fan of Weird Al Yankovic, Mad Magazine, and the Harvard Lampoon, I would hate to see copyright turned into a complete license to squelch parody or the poking of fun. W/r/t "The Wind Done Gone," though: do moral rights outlive the copyright creator? I guess I always had the vague idea that moral rights were personal to the artist (rather than a property right) and were extinguished upon death. But speaking as an employee of a major corporation, one which employs countless individuals to write catalog copy and website copy, design products, design graphics to be applied to products, etc. AND funds a huge sports research lab, I think that the work for hire doctrine is an essential part of a company's ability to operate on a daily basis, with a degree of order and predictability. Why am I wrong, Jessica?
No "punch the monkey" banner ads. (vard) Mon 10 Sep 01 21:39
Also, I would urge Well members reading this topic to check out hidden post 297 in topic 246 of the Policy conference, which recounts the fears of a cryptographer who has cracked the HDCP encryption scheme, developed by Intel, and feels he cannot write about his discovery because he must travel to the US from time to time and cannot afford to be prosecuted here for a DMCA violation. pico users, that's !extract policy 246 297 at your OK prompt. Engaged users, type g policy into the shortcut box, then click on topic 246, then click on the hidden response 297. I hope Jessica will take a look at it too.
Jessica Litman (jessicalitman) Tue 11 Sep 01 16:06
I apologize for being absent -- I've been glued to a television screen for the past 9 hours. Vard suggests the work for hire doctrine is essential to a company's operations. I agree that many companies need to secure copyright ownership, but I don't think they need the work for hire doctrine to do it for them. Your company's sports research lab presumably generates patentable discoveries. There is no patent work for hire doctrine. Only the inventor may secure a patent, but an employee inventor is usually required by her employer to assign the patent to the employer. Companies could easily treat copyrights the same way. There are a couple of complications that will be familiar to copyright lawyers and need not trouble anyone else, since they are easily dealt with with minor legal changes. Indeed, in the short term, repealing the work for hire doctrine would do very little to empower creators because the employer will almost invariably be in a position to insist the employee assign whatever rights the employer needs. I favor repealing it for a different reason. The work made for hire doctrine is part of a system that encourages the concentration of copyrights into fewer and larger hands. Businesses that control lots of copyrights understandably seek to increase the value of their assets by pressing for stronger and longer intellectual property rights. Meanwhile, the market power they have precisely because they control so many copyrights creates entry barriers for upstart new businesses, especially when the big guys act in their own self interest and refuse to grant licenses to upstarts. I'd like to change the incentive structure, by eliminating or limiting provisions that tend to herd copyright ownership or control into large entities. Businesses that need to acquire licenses for the works they use are likely to be more sympathetic to limitations on copyright owners' control. Consider: if the copyright term extension had been framed so that the extended copyright term belonged to the individuals who actually created the works, there would have been no political support for it. When completely new markets open up, moreover, it would be harder for the entities that control copyrights in extant markets to use their copyright ownership to prevent new entrants from exploiting new media while refusing to do so themselves. Now, in reality, there is less than zero chance that Congress would repeal the work made for hire doctrine. But I do think that doing so would in the long term do more good than harm.
Jessica Litman (jessicalitman) Tue 11 Sep 01 16:11
We've been seeing a number of statements by scientists conveying reluctance to publish their research, to travel to the US, or both. This was, in fact, precisely what the scientific community warned Congress would happen if the DMCA became law. That "chilling effect" is the basis of the constitutional challenge to the DMCA in the case brought by Princeton Professor Ed Felten. The EFF, which is supporting Felten's legal costs, has extensive archives on the case online at <http://www.eff.org/Legal/Cases/Felten_v_RIAA/>.
Dave Waite (dwaite) Wed 12 Sep 01 07:02
so much going on in the last day. I am fascinated with your book. This history of copyright and how it has been convoluted only by interests that care to discredit each other powers. the compromises that have turned the law into something much greater than the sum of it's parts. can you shed more light on licence vs. first sale? It appears to me that the introduction of licence seems to protect the interests of the corporate owners of copyright more than the developers of content. Some may argue that licence allows content developers more potential or stable income, and hence the ability to create more works, but doesn't that same power take away the developers ownership of that copywright? Would a new copyright act that gave content deveolpers move copyright control and ownership, rather than corporate control - eliminating for the most part the work for hire doctrine, be favorable to more or less published works..in your opinion? Lst but not least. In the light of the recent events, do you think the public's liberties are threatened? short term? long term? as they relate to viewing, distrubtion, and hearing original works?
Linda Castellani (castle) Thu 13 Sep 01 13:08
We've decided to postpone this interview in view of the fact that nobody much feels like thinking about digital copyright right now. Our plans are to resume again on Monday. See you then.
Jessica Litman (jessicalitman) Tue 18 Sep 01 06:57
If Dave Waite had asked his question about the threats to public liberties two days earlier than he did, I would have had a different answer. The prevailing attitude before Tuesday among U.S. lawmakers and a large slice, perhaps a majority, of the American public was that so long as the tools of coercion and surveillance were wielded by private (as distinguished from government) hands, they posed no meaningful threat to freedom. Thus, copyright rules which enabled copyright owners to keep track of and control what citizens could read, see, hear and use were seen as unproblematic, because the system derived from private property rights and market transactions. Today a large slice, perhaps a majority, is ready to cede to the government significant new powers of surveillance and coercion. I don't know what effect people's current willingness to allow John Ashcroft to know what they see and view what they read will have on the public's tolerance for Disney's and Microsoft's doing the same.
Gail Williams (gail) Tue 18 Sep 01 09:48
That's very likely, though I haven't seen polls. Have you spoken to others who are concerned with copyrights and privacy? Is there a corresponding shift of view among experts, as it were?
Jessica Litman (jessicalitman) Tue 18 Sep 01 11:57
I haven't had any formal conversations, but the talk on copyright and Internet law mailing lists I subscribe to has focused on what the events of the last week mean for privacy generally and government electronic surveillance in particular. The privacy implications of the DMCA are, I think, the biggest reason that organizations like EFF, EPIC and the ACLU got involved in opposing it in the first place. Privacy is tricky though. Public support for privacy protections is pretty soft. Some people wonder, for example, to paraphrase something John Ashcroft said last week, why terrorists should be entitled to any privacy. It seems clear from news coverage that Congress is feeling supportive of the administration's requests for any change in the law that might help the current "war against terrorism." Yesterday, the Senate voted in favor of an amendment expanding government wiretap authority. Some Senators now support a proposed law that would ban the use of strong encryption unless the government had access to a decryption key. Newspaper polls are hardly precision instruments, but they indicate that the public supports efforts to make Americans safer even if they sacrifice civil liberties. I mentioned the DMCA's anti-circumvention provisions last week. Computer scientists and cryptographic researchers complained when the bill was before Congress and have continued to complain that the law doesn't allow room for legitimate cryptographic research. (This is the provision at the heart of professor Felten's suit.) One of the things we've been debating is what effect the current "war on terrorism" is likely to have on the laws that affect cryptography and cryptographic research. I've read persuasive arguments that the last thing the US needs right now is to constrain and threaten crypto scientists with the DMCA, or with Crypto export regulation. A completely unscientific sample of those of my colleagues who sound off on email lists, however, suggests that a lot of people think it is likely that the government will lauch a renewed effort to regulate cryptography and this time the Congress will go along. Meanwhile, we've developed a lot of tools to enable intellectual property owners to monitor who is gaining access to proprietary content and what they are doing with it. Before last week, there was a vigorous argument about the importance of building privacy protection into that architecture. I'm not sure how such arguments will play now. I can imagine that people will be willing to give up some privacy to government intrusion but will then feel less willing than they were before to reveal all to businesses in the private sector. (Think tax returns.) I can also imagine people concluding that once the government has the information, there's no point in trying to protect it from businesses who want to collect it.
No "punch the monkey" banner ads. (vard) Wed 19 Sep 01 00:13
What is the default status of personal information gathered by the government? Saleable or non? Or does that vary according to the type of information?
Jessica Litman (jessicalitman) Wed 19 Sep 01 07:59
It's a mixed bag. It depends on the type of information and on what government or government agency collects it. The law requires some information (like the information you put on any USPS change-of-address card) to be made publicly available. Other information (like your tax returns) must be kept confidential. Some states sell the information they collect when you renew your drivers license or car registration. We have no comprehensive federal or state privacy laws. Congress was considering some proposals this year, but almost all domestic legislation is currently on the back burner.
No "punch the monkey" banner ads. (vard) Wed 19 Sep 01 13:49
I'm thinking a lot about the encryption issues these last few days, like most people here, probably, and I'm wondering if there is any useful political traction in the concept that it might be GOOD for people to be encouraged to do research into cryptography and learn to break codes. Especially if those people are Americans. I mean, maybe the DMCA provisions w/r/t defeating encryption are suddenly a national security problem? Or is that just some intoxicating cocktail of naivete and wishful thinking?
Jessica Litman (jessicalitman) Wed 19 Sep 01 14:46
My first copyright-related thought after the World Trade Center attack was that now lawmakers would finally "get" what was wrong with the insanely narrow cryptographic research exception in the DMCA, since the last thing the US ought to want is to drive cryptographic researchers into other fields or other jurisdictions. (People aren't spending much time on copyright-related thoughts -- both the House and the Senate have postponed scheduled hearings on copyright issues.) The crypto-related debate I've been hearing, though, has focused on the key escrow proposal rather than on making sure that our cryptographic talent and knowledge base is the very best that it can be. When I mentioned this to a colleague who also teaches copyright and Internet law, he objected that cracking encryption schemes applied by private businesses to protect their intellectual property was an entirely distinct matter, and that therfore efforts to combat terrorism shouldn't change anti-circumvention laws. I infer that the connection may not be as clear to most people as it is to some of us.
Amazon.com sales ranking: 1,304,455 (wendyg) Wed 19 Sep 01 15:38
Dropped in to say hi to Jessica, whom I met at a CFP a couple of years ago. At least I think I met her. I nkow I loved her after-dinner speech which wound up suggesting we all engage in civil disobedience. The probolem I think is that years of law enforcement's insisting on painting crypto as something terrorists (and organized crime, drug dealers, and pedophiles) use to hide their activities have left people with the sense that crypto is dangerous. This attack is exactly the kind of thing that bolsters law enforcement's insistence3 that trhey should have access to keys. At the same time, I don't think a lot of people understand what crypto's role in protecting intellectual property is. Most Americans don't even *realize* that DVDs are region-encoded because they have no need or desire (after all, DVDs in the US are cheap and fully featured compared to therest of the world, and most things anyone wants to see come out there first) to buy DVDs from other regions. They certainly did reject DIV/x (Cirgcuit City's one, not the current video format), but again, I don't think they recognized that crypto and hence the DMCA had any relevance to that; they just didn't like the idea. I do think the big danger is that while everyone's attention is understandably distracted by current events the copyright lobby will get what it wants because no one has the energy to stop them. wg
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