Inkwell: Authors and Artists

    

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?
  

    

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.)
  

    
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.
  

    
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.
  

    <scribbled>
  

    
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. 
  

    

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?
  

    
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. 
  

    

  What about the time dimension, Jessica?  How _long_ do you think
that copyrights should last?
  

    
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. 
  

    
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.
  

    

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?
  

    

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.
  

    
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.
  

    
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/>.
  

    
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?
  

    

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.
  

    
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.
  

    
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?
  

    
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.
  

    

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?
  

    
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.
  

    

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?
  

    
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.
  

    
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