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The Copyright Grab
The Clinton administration, through its white paper on intellectual property, is proposing a wholesale giveaway to its supporters in the copyright industry - at your expense.
By Pamela Samuelson
Browsing through a borrowed book, lending a magazine to a friend, copying a news article for your files - all seem innocuous enough. But the Clinton administration plans to make such activities illegal for works distributed via digital networks. If legislation recommended in its white paper "Intellectual Property and the National Information Infrastructure" is enacted, your traditional user rights to browse, share, or make private noncommercial copies of copyrighted works will be rescinded. Not only that, your online service provider will be forced to snoop through your files, ready to cut you off and turn you in if it finds any unlicensed material there. The white paper regards digital technology as so threatening to the future of the publishing industry that the public must be stripped of all the rights copyright law has long recognized - including the rights of privacy. Vice President Al Gore has promised that the National Information Infrastructure (NII) will dramatically enhance public access to information; now we find out that it will be available only on a pay-per-use basis.
Why would the Clinton administration want to transform the emerging information superhighway into a publisher-dominated toll road? The most plausible explanation is a simple one: campaign contributions. The administration wants to please the copyright industry, especially members of the Hollywood community, who are vital to the president's reelection bid. And what this copyright industry wants in return is more legal control than ever before over the products they distribute.
The US Constitution empowers Congress to pass laws "to promote progress of science and [the] useful arts." Congress has chosen to accomplish this constitutional goal by granting authors a limited set of exclusive rights in their works. Copyright protects all original works of authorship, including such things as personal letters and corporate memoranda, from the moment they are first fixed in a tangible form. This protection attaches automatically by operation of law and lasts for the life of the author plus 50 years. In the three centuries of its existence, copyright law has focused on regulating public and commercial activities, such as the commercial reproduction of physical objects embodying the copyrighted work (books, for example) for intended dissemination to the public, the commercial distribution of physical copies to the public, and public performances of dramas, music, and the like. (Singing a copyrighted tune in the shower is not an infringement because it is a private performance of the music.)
Some publishers, however, want to control not only all public and commercial uses of their works, but all private uses as well. They assert that this would better fulfill the constitutional purpose of copyright, because the greater the financial return to them, the greater will be their incentive to make works available to the public. Proponents of this view suffered a setback in 1984, when the Supreme Court ruled in the Sony Betamax case that taping a television program for time-shifting purposes in the privacy of one's own home was "fair use" (and consequently that Sony wasn't liable to Universal and Disney for contributory copyright infringement in selling videotape machines). But these publishers fear digital technology far more than videotape machines. Ever since they began to realize that digital technologies could "free" information dissemination, the established copyright industry has been shaking in its boots. Now a group of major motion picture producers, sound recording companies, and print publishers have figured out a way to turn the threat of digital technology into an opportunity. Under this plan, they would retain all of their rights under existing law and quietly attain a host of new ones.
Bruce Lehman, Clinton's czar of intellectual property policy and the person in charge of shepherding the white paper's NII Copyright Protection Act through Congress, is, coincidentally enough, a former copyright industry lobbyist. Lehman - whose official titles are assistant secretary of commerce, commissioner of patents and trademarks, and chair of the Intellectual Property Working Group of the administration's NII task force - depicts the changes to copyright law recommended in the white paper as minor clarifications and updates to existing law. They are, in fact, a flagrant giveaway to the copyright industry, softened only by two public-interest provisions added to make the package appear more balanced than it really is. (One provision would expand library privileges to make copies of copyrighted works for archival purposes, and the other would permit nonprofit groups to distribute Braille or large-type editions of copyrighted works if the publisher has neglected to do so within a year of publication of the standard edition of the work.)
Bipartisan bills to implement the white paper proposals were introduced in the House (HR 2441) and the Senate (S 1284) in late September. Lehman and the copyright maximalists are relying on several factors to get this legislation through Congress before the public realizes what is happening and rouses itself to action. First, Congress finds it difficult to say no to copyright producers, who are not only often glamorous but make a positive contribution to the US balance of trade (US$45.8 billion in 1993). Second, many influential members of Congress know and trust Lehman, who was a Congressional staffer before he became a copyright lobbyist. Third, copyright has become such a complex and esoteric law that many senators and representatives, as well as members of the press, will not be able to penetrate the 250-page, jargon-ridden white paper to learn that there is good reason to be skeptical about it.
Quick Congressional acceptance of the white paper's legislative package will help persuade courts to accept the white paper's interpretations of existing law as a kind of legislative history of the NII Copyright Protection Act. Thus, if the Clinton administration's legislative proposal is adopted, the maximalists may finally get the law they have always wanted instead of the more limited grant of rights that the Constitution has long been understood to authorize.
The maximalist agenda
The eight interrelated parts of the white paper's agenda intend to:
1. Give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users make even temporary reproductions of works in the random access memory of their computers;
2. Give copyright owners control over every transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public;
3. Eliminate fair-use rights whenever a use might be licensed. (The copyright maximalists assert that there is no piece of a copyrighted work small enough that they are uninterested in charging for its use, and no use private enough that they aren't willing to track it down and charge for it. In this vision of the future, a user who has copied even a paragraph from an electronic journal to share with a friend will be as much a criminal as the person who tampers with an electrical meter at a friend's house in order to siphon off free electricity. If a few users have to go to jail for copyright offenses, well, that's a small price to pay to ensure that the population learns new patterns of behavior in the digital age.);
4. Deprive the public of the "first sale" rights it has long enjoyed in the print world (the rights that permit you to redistribute your own copy of a work after the publisher's first sale of it to you), because the white paper treats electronic forwarding as a violation of both the reproduction and distribution rights of copyright law;
5. Attach copyright management information to digital copies of a work, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the network and what is being done with it at any time;
6. Protect every digital copy of every work technologically (by encryption, for example) and make illegal any attempt to circumvent that protection;
7. Force online service providers to become copyright police, charged with implementing pay-per-use rules. (These providers will be responsible not only for cutting off service to scofflaws but also for reporting copyright crime to the criminal justice authorities);
8. Teach the new copyright rules of the road to children throughout their years at school.
It's hard to fully appreciate how substantial a change the white paper would wreak upon copyright law until you grasp the negative synergies among its eight interrelated parts. The diminishment of fair-use rights, for example, might seem less threatening when viewed in isolation than when viewed in conjunction with the white paper's call for an expansion of copyright owner control over browsing and transmissions.
The copyright maximalists are also hoping that quick adoption of the white paper's legislative proposals will be a steppingstone to international adoption of their agenda. Bruce Lehman has already attended several international meetings advocating the Clinton administration's copyright package as the right set of rules for the Global Information Infrastructure (GII). At meetings sponsored by the World Intellectual Property Organization, Lehman has urged that the white paper's legislative proposals be included in a supplementary agreement (known as a protocol) to the major international treaty on copyright matters, the Berne Convention. Since participation in the organization's meetings is limited to intellectual property professionals associated with special interest groups or governmental organizations (many of whom, like Lehman, are now in policy-making positions in their governments), the chances for the maximalists to gain international acceptance of their agenda - at least by governments, if not by the people they purport to represent - seem strong. If they succeed, member countries would be substantially constrained by treaty obligations from later amending their national laws to make them less restrictive about information dissemination. So, if the public ultimately were to decide the maximalists' agenda is unacceptable, a whole new treaty would have to be negotiated to undo the damage. That would take years, if it could be done at all, and naturally the maximalists would fight it every step of the way.
The white paper seeks to implement the maximalist agenda partly by rewriting the copyright statute and partly by aggressively interpreting existing law. Legislatively, it seeks 1) an amendment to treat digital transmissions of works as distributions of copies to the public; 2) a new provision making it unlawful to tamper with copyright management information; and 3) a new provision to prohibit devices or services aimed at circumventing technological protection for copyrighted works. To implement the rest of the agenda, it relies on the old litigation trick of acting as though the law is already firmly on your side. Although the white paper purports to be an objective statement of existing law, it is really a skillful advocacy document; on virtually every controversial issue of the day, it takes the maximalist view, often without acknowledging that contrary arguments or authority even exist. Where existing case law does not conform to the maximalist view, the white paper simply ignores it. This bias is glaringly evident when one closely examines the eight major issues:
1. The exclusive right to read: The white paper seeks to extend publisher rights to control browsing and other uses of copyrighted works in digital form by an expansive interpretation of existing law. It observes that in order to browse a digital work, the user's computer must make a temporary copy of that work in its random access memory; that temporary copy, it claims, is an infringing reproduction of the work unless it has been licensed or is otherwise privileged. The white paper relies on an appellate court decision that treated the unlicensed loading of a computer program in RAM as an infringing reproduction. But it knowingly omits reference to the legislative history of the current copyright statute, in which Congress specifically stated that the temporary storage of a copyrighted work in a computer's memory should not be regarded as an infringing reproduction. Rather than seek legislative clarification on this issue, the white paper simply pretends that under existing law, browsing is an infringement, hoping thereby to avoid tough questions from senators and representatives whose constituents might be worried about granting copyright owners an exclusive right to control all readings of works in digital form.
2. The exclusive right to transmit: Lehman has been leading the drive for adoption of the white paper's proposed NII Copyright Protection Act on the theory that it is unclear under existing law whether a digital transmission is a distribution of a copy to the public. The act, he says, will make clear that this is so. But the white paper admits that the courts have already regarded digital transmissions of copyrighted works as infringing distributions in some cases, so either there is an unstated purpose behind this proposal, or else it is just a smoke screen to deflect attention from the real kickers in the package. Lehman is probably seeking the digital transmission amendments because his pals among the maximalists want to be able to control all performances and displays of copyrighted works, not just the public performances and public displays that the existing law grants to copyright owners.
3. The end of fair-use rights: The white paper attempts to eliminate fair-use rights by interpreting existing law as though fair use has no application when a use can be licensed (remember that the maximalists believe all uses can be licensed). Copyright maximalists, in fact, regard all unauthorized copying of copyrighted work as theft. This theory has, however, been rejected by the US Supreme Court. Universal and Disney once sued Sony to stop distribution of its videotape machines, arguing that private noncommercial copying of their motion pictures by purchasers of Betamax machines was no more excusable than the theft of a necklace because the thief intended to wear it only at home for noncommercial purposes. The Supreme Court pointed out that the person who steals a necklace deprives its owner of possession and use of the item, whereas the copying of programs off the air "does not even remotely entail comparable consequences for the copyright owner." The Court held that it was fair use for consumers to copy programs off the air for time-shifting purposes. Indeed, the Court said that private, noncommercial copying should be presumed fair use.
The white paper makes no mention of this aspect of the Sony ruling. It reinterprets the case as though the Court found no infringement because Universal and Walt Disney had not yet established a licensing market for off-the-air copying of their works.
The notion that fair-use rights apply only when no licensing market exists is neither historically accurate nor good public policy. It ignores some important free speech and related public interest functions of fair use that were recognized in cases such as Time Inc. v. Geis. Time sued Bernard Geis for copyright infringement because he included in his book about the Kennedy assassination sketches of frames from the Zapruder film (whose copyright Time had acquired) to illustrate his rationale for concluding that Lee Harvey Oswald was not the sole gunman. Time lost this lawsuit - not because it had no pricing schedule by which Geis could have licensed the right to reproduce the frames, but because allowing Geis to use the frames in his book was consistent with the constitutional purposes of copyright to promote knowledge, public access to knowledge, and public discourse about this important event. The same rationale explains why senators and representatives read newspaper articles into the Congressional Record to preserve their importance to public debate on controversial issues, and why many of us share copies of articles with people we know are concerned about particular issues.
Another case illustrating the broader public policy purposes of fair use is Sega v. Accolade. (The white paper also ignores this case.) Accolade decided not to pay license fees to Sega in order to get access to information about how to make its videogames run in Sega Genesis machines. Instead, it decompiled the Sega code, extracted the interface information, and then wrote program code to reimplement the interface so that Accolade's cartridges would run in the Sega machines. Sega charged Accolade with copyright infringement arising from its decompilation efforts. A federal appellate court decided that Accolade's intermediate copying of the Sega program for a legitimate purpose, such as getting access to the functional requirements for achieving compatibility, was a fair use. The court thought that ruling in Sega's favor would have undermined copyright principles by giving Sega a broader monopoly over the contents of its program than Congress intended. In contrast, ruling in Accolade's favor was consistent with the constitutional purposes of copyright to promote the creation and distribution of new noninfringing works.
4. Eliminating first-sale rights for digitally transmitted documents: Copyright owners have historically been entitled to control only the first sale of copies of a work to the public. After that, the consumer who has bought the copy can share it with a friend, give it away, or resell it. (Libraries rely on first-sale rights to lend copies of books to the public.) Consumers would expect the same rule to apply if the copy was electronic. But the white paper says that sharing your copy of an electronic work with a friend is illegal because, in order to send that copy to your friend, your computer will have to make a copy of the document; and since that copy hasn't been authorized by the copyright owner, an infringing reproduction of the work has taken place. If the white paper had wanted to retain the balance of interests embodied in current law, it would have suggested that the intermediate copying necessary to effect a user's first-sale rights should be regarded as a fair use under precedents such as Sega v. Accolade.
5. Helping documents spy on you: The white paper anticipates that publishers will want to attach copyright management information to digital forms of their works. It defines copyright management information as "the name and other identifying information of the author of a work, the name and other identifying information of the copyright owner, terms and conditions for uses of the work, and such other information as the Register of Copyrights may prescribe by regulation." It proposes to protect this information against tampering by making it illegal to knowingly remove or alter copyright management information or to distribute copies of works whose information has been tampered with. Money damages and criminal penalties would await violators.
While one can question whether it's necessary to make tampering with copyright management information a crime (much less a felony), this provision seems relatively innocuous at first blush. I didn't start worrying about it until I heard proponents talking about how copyright management information systems might be implemented. Some favor making these systems "dumb," while others favor making them "smart." Dumb systems would simply identify the work with a digital equivalent of the ISBN numbers used in the book world today. Smart ones would, among other things, have the ability to secretly report back to the copyright owner via the network on what the user was doing with the work, and the ability to search the consumer's hard disk and report back on what else was there. The Microsoft registration wizard may be just the beginning of the intrusive snooping to which copyright owners will be prone - only, in the future, it won't be possible to say no, and any effort you make to block these intrusions may make you a felon.
Plans are also underway to develop secure processors that won't permit copying of digital works unless their copyright management information authorizes it. Some publishers are already talking about getting governments to mandate inclusion of these secure processors in all reprography technologies (including photocopy machines). The precedent they offer for this mandate is the serial copy management system requirement imposed on manufacturers of digital audio-tape machines. They conveniently forget that the law regulating these machines does not ban all unauthorized copying; it permits consumers to make first-generation copies but not multiple secondary reproductions identical in quality to the digital material from which they are derived.
There is very little in the white paper to inform Congress or the public about these additional plans for copyright management information. It's also worth noting that the white paper never contemplates a situation in which a user might have a legitimate reason to alter copyright management information or to defeat technological protection. It seems to assume that consumers of information products are would-be thieves and that content owners are just trying to make an honest living.
6. Outlawing decryption: Many copyright owners are planning to protect digital forms of their products by technological means such as encryption. To ensure the security of this technological protection, the white paper recommends the following legislation: "No person shall import, manufacture, or distribute any device, product or component incorporated into a device or product, or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without the authority of the copyright owner or the law, any process, treatment, mechanism, or system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under section 106."
Civil penalties for violation of this law will include having to pay statutorily established damages and having any equipment used in the process (your computer, for example) impounded. While one can understand the desire to prevent decryption for the purposes of redistribution and profit, the provision doesn't require either of these as a precondition for liability. Merely manufacturing or distributing a technology that can be used to undo a system that a copyright owner has adopted to protect its work seems sufficient to incur liability.
Although the white paper doesn't say so, this legislation would overturn a second ruling in the Supreme Court's Sony Betamax decision, which held that copyright owners cannot stop distribution of a technology as long as it has a substantial noninfringing use.
In addition, the language of this proposed law is so broad and so vague that it can be construed as outlawing many activities widely believed to be lawful. For example, some software publishers will argue that the decompilation of mass-marketed software in order to get access to interface information violates this provision, because the decompiler would be performing a service whose primary purpose and effect was to bypass the technological system the program's developer had adopted to protect its program (distribution of the program in object code form in order to maintain the contents of the program as a trade secret). Although Sega v. Accolade and another federal appellate court decision have affirmed the right of software developers to decompile software for compatibility purposes, the white paper doesn't mention the decompilation and interoperability case law. Lehman and the maximalist software publishers who used to be his clients insist that decompilation is and should be illegal. They are hoping to overturn the decompilation case law indirectly by the white paper's endorsement of some changes to commercial law that would validate common terms in shrink-wrap licenses, such as prohibitions on decompilation.
What the white paper doesn't mention is that previous industry attempts to protect copyrighted works in digital form by technological means failed in the marketplace as well as the courts. Users, who often felt there were legitimate reasons for them to have access to an unrestricted version of a program, created a demand for programs that could defeat software copy-protection systems. Litigation soon ensued. Vault, whose copy-protection software could be defeated through use of Quaid's unlocking program, sued Quaid to try to stop distribution of the latter's software. Vault relied in part on a Louisiana law intended to validate common terms of software shrink-wrap licenses. But because Quaid's software allowed purchasers of application programs to exercise rights conferred on them by copyright law to make backup copies and modifications to the software, the court decided that what Quaid had done was lawful. To the extent that the Louisiana law might stop users from exercising their rights under copyright law, the court decided the state law conflicted with the purposes of federal law and was unenforceable. The message of the marketplace was equally clear: Software developers eventually abandoned the distribution of copy-protected software because it was unpopular with consumers. Even though the market for locking and unlocking software died out - making it easy to copy software in digital form - the software industry as a whole has thrived.
7. Turning online service providers into cops: The white paper asserts that every online service provider is already liable for all copyright infringement committed by its users, regardless of whether the service has reason to know about the infringement or takes reasonable steps to ensure that it won't occur. To back up this view, the white paper cites two lines of cases.
In one set, employers were found vicariously liable for copyright infringement by their employees when they had the power to supervise their employees' activities and financially benefited from the infringement. In the second set of cases, nightclub owners were held liable for infringements by bands they had warned not to perform copyrighted music without a license, because the owners had rights to supervise the bands and because they benefited from the infringement.
There is, however, other case law that goes unmentioned in the white paper which supports the online service providers' contentions that they should not be held strictly liable for user infringements. Landlords, for example, have escaped liability for infringements committed by their tenants because they had very limited power to inspect the infringers' premises or supervise their activities, and because they didn't financially benefit from the tenants' infringement. Online service providers liken themselves to landlords because they typically "rent" space on their computers to users who store private material, such as e-mail, there. Also, they typically do not monitor user activities (except for automated searches for certain profane words or screening for threatening language). Indeed, they are forbidden by the Electronic Communications Privacy Act from monitoring the content of private user messages, another factor the white paper ignores in the balancing equation. They also argue that they don't benefit financially from user infringements.
Some commentators have argued that imposing a strict liability rule on online service providers is inconsistent with the public policy purposes underlying copyright law because it will chill so many noninfringing online exchanges of information. If online service providers have to monitor everything users do, they will artificially impose centralized structures of control over user communications. The danger that overzealous copyright owners will sue online service providers in order to censor online communications has already evidenced itself in the ongoing Religious Technology Center and Bridge Publications Inc. v. Netcom case. (The copyright holder and publisher, respectively, of Church of Scientology materials have sued Netcom and a church dissident for copyright and trade secret violations because the dissident used his Netcom account to post church teachings. See Wired 3.12, page 172.)
The white paper is quite frank in its determination that online service providers should become centralized control centers to enforce copyright law. "They - and perhaps only they - are in a position to know the identity and activities of their subscribers and to stop unlawful activities. And, although indemnification from their subscribers may not reimburse them to the full extent of their liability and other measures may add to their costs of doing business, they are still in a better position to prevent or stop infringement than the copyright owner. Between these two relatively innocent parties, the best policy is to hold the service provider liable." This statement, however, ignores the privacy interests of users, as well as serious questions about whether it is technically feasible for online services with millions of subscribers to do the continuous monitoring of user accounts that copyright owners might like. The white paper acts as though the interests of copyright owners so override other, competing interests that it isn't even worth mentioning what the other interests are, let alone trying to balance them against the copyright owner interests.
8. Teaching children not to share: To ensure that future generations are broken of the habit of thinking that it's OK to share copies of copyrighted works with a friend, the white paper offers examples of lessons about copyright that could be taught as early as kindergarten and as late as college. The general theme of these lessons, in order not to be too negative, would be, "Just say yes" to licensing. (It actually says this.)
Reasons to say no to the white paper's agenda
When Bruce Lehman talks to the public about the white paper, he acts as though unless copyright law is strengthened, no content will be available on the NII, because publishers won't have the incentive to provide it. The white paper seems oblivious to the phenomenal growth of the World Wide Web and other areas on the Internet where a wide variety of content is already available. In the few places where the white paper acknowledges the existence of the Net culture, it is overtly hostile to it, characterizing it as a "legal free-for-all [that] would transform the GII into a veritable copyright Dodge City." Lehman aims to be the sheriff who will kick those anarchic digital cowboys off the Net and make the electronic frontier safe for businesses that want to set up shop there.
Lehman also likes to invoke for the public a utopian vision of ubiquitous and cheap availability of content on the NII if the public accepts his proposed changes to copyright law. If people will only pay for each access to a work, he implies, content owners will make their intellectual property widely available for lower prices, because they will now be able to charge, say, a dollar a hit, instead of $10 for a printed copy, to make the same profit on a given work. Yet the white paper contains no promises that consumers will be charged lower prices in exchange for giving up fair use, first sale, and other rights.
History teaches us to be skeptical about claims that giving publishers broad monopoly rights will be in the public interest. During the first centuries after the invention of the printing press, publishers had considerably stronger monopolies than modern copyright laws grant them. They used these broader rights to charge excessive prices and censor dissenting views. When the English Parliament passed the first modern copyright law, in 1710, it did so in part to stop publishers from oppressing authors, potential competitors, and the public. If the government confers stronger monopolies on publishers again, why should we believe that ubiquitous access and low prices will necessarily result?
Enlarging publisher rights would also provide massive subsidies to the dinosaurs of the Second Wave - today's largely print-based copyright industry, which are terrified of the digital domain and generally don't have the faintest idea about how to market the content in their portfolios on the Net. The only way the entrenched copyright industry can imagine marketing content electronically is through extensive technological locks that will make digital information less free than print information. The white paper gives no thought at all to the needs or concerns of emerging electronic information industries, such as firms that add value to existing information resources, and it seeks to hobble the only kind of Third Wave information service it recognizes - online service providers - by forcing them to undertake the costs of policing users on behalf of the established copyright industry.
We should also not assume that these copyright maximalists are good judges of what's in their long-term best interest. Shortsightedness can be one of their hallmarks. It wasn't so long ago that major motion picture producers were bewailing the advent of videotape machines as the end of film revenues. They lost their battle to ban the sale of these machines - with the result that a new and unanticipated market for their products emerged in the form of videotape sales, a market that has brought further prosperity to the film industry and satisfaction to the public.
It is, in fact, too early in the development of markets for delivery of electronic information products and services to start the kind of heavy-handed government regulation that the white paper would bring about. It would be more sensible to wait to see what kinds of markets emerge and then figure out what, if any, legal fences are needed to avert market failures. Pushing through legislation mandating the maximalist vision before there is public consensus in support of it could backfire by eroding the public's faith in the essential fairness of copyright law.
But the copyright maximalists and their lobbyists are not thinking about how to promote real public respect for copyright law or about what's in the public interest. Their strategy is to rush the white paper's legislation through Congress today and force it down the public's throat tomorrow. You are the public whose throat this policy is about to be forced down. If you don't want it to happen, you'd better do something, and quickly.