Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media

Selection from Cites & Insights 5, Number 1: January 2005

Copyright Currents

The most important development this time around is a non-development: No new copyright legislation was passed in 2004. That’s particularly significant given efforts to push HR 2391 through Congress during the lame-duck session, with a number of other extreme copyright measures lumped into HR 2391 as an omnibus measure. (The omnibus measure incorporated HR 4077, the “bad PDEA.”)

The pieces of the chronology I’ve seen say that as of mid-November, the push was still on, with interest groups as far ranging as Public Knowledge and the American Conservative Union fighting against it. On November 20, the Senate did pass the copyright-related S 3021, but (as related in Donna Wentworth’s Copyfight, “the omnibus [was] now a minibus.” HR 4077 was dropped. So was the PIRATE Act. The Family Movie Act—the one that clarifies the legality of skipping portions of movies or TV—was still there. The bill also included legislation to clarify the ability of libraries to preserve and copy orphan works during the last 20 years of their copyright term. S 3021 also retained provisions to outlaw the use of camcorders in a movie theater—and, oddly, added 50 pages about standards in professional boxing.

As of December 9 the bill was dead: Congress ended the lame-duck session without final action on copyright legislation. The bad news is that the orphan-works act failed along with the rest; all in all, however, the bill’s defeat was probably a good thing.

Public Knowledge seems to take direct credit for the defeat of all the “bad [copyright] legislation” proposed in the past two years. How explicit is that claim? “In the past two years, we’ve sent ten bad laws to their grave.” That list includes S 2560 (INDUCE/IICE), HR 3261 (the database bill), HR 4077 (originally P2P), S 2237 (the PIRATE Act), HR 2517 (the “bad PDEA”), HR 2752 (ACCOPS), S 1932 (the original bill to criminalize camcorders in movie theaters), HR 4586 (the Family Movie Act, which Public Knowledge calls “bad legislation” on the grounds that it doesn’t allow skipping ads), and S 3021/HR 2391, the omnibus and “minibus” bills. Public Knowledge does good work as a coalition. I wonder whether it could be as effective without the high-profile statements of member organizations such as the American Library Association and Consumers Union?

Will the next Congress see new attempts by Big Media to restrict fair use and hamper new technology? You can count on it. Will Congress act on measures to restore some balance to copyright, such as the “good PDEA”? I have no idea—but at least efforts to unbalance copyright further are being slowed and stopped.

The rest of this installment is odds and ends, organized loosely into sections. There’s nothing about the broadcast flag—not because nothing’s happening. The ALA (et al) suit will be heard by the U.S. Court of Appeals for the District of Columbia Circuit on February 22, 2005. I have some background material, ALA’s 56-page brief, the FCC’s 43-page brief, and a 29-page reply brief from ALA. I hope to do a commentary on the briefs either before the case is heard or after (along with the outcome). Time and energy will tell!


Even librarians who don’t understand why they should be concerned about the Broadcast Flag should understand why DRM (Digital Rights Management, but what it does is to restrict rights) poses problems for libraries. While DRM doesn’t inherently impede fair use and first sale rights, that’s what usually happens. And since DRM almost always involves encryption of some sort, attempts to bypass DRM run afoul of DMCA even if those attempts are to enable fair use rights. Fair use is no defense for DMCA violations.

In practice, DRM is yet another way for copyright holders to unbalance copyright when Congress, regulatory agencies, and treaties aren’t quite restrictive enough. Herewith some items over the past few months that relate to DRM.

TiVo, ReplayTV agree to limits

That’s the headline on a September 9 story in the San Jose Mercury News, with the subhead “pay-per-view would be subject to limitations.” Future versions of DVRs will allow movie studios and broadcasters to regulate how long pay-per-view movies can be stored on the devices—and how often they can be watched. TiVo says that’s a tradeoff to get services such as video-on-demand. Macrovision, the technology supplier, says it won’t damage regular use of TiVo and ReplayTV, but will “allay the piracy and business concerns” that keep studios from releasing movies to pay-per-view the same day as they appear on DVD. Fred von Lohmann of EFF calls it anti-consumer and hopes “the marketplace will respond by punishing TiVo and Replay and others that do this.” How bad could this be? One suggestion would limit recording to 90 minutes at a time; another would let you store a movie for a week—but wipe it out 24 hours after you start viewing it.

Donna Wentworth and Wendy Seltzer at Copyfight discussed this situation. Seltzer notes that entertainment producers, telling us content won’t be available without DRM, are retelling an old story (ever since piano rolls) that’s consistently been false. Wentworth notes how busy Big Media is doing everything except what’s always made money for them in the past: Changing their business model to adapt to (and take advantage of) new technologies. Both advocate one way to cope with this: Just say no to DRM-hobbled DVRs and other products.

An October 18 posting on Susan Crawford’s blog cites HBO’s FAQ, which says—essentially—that fair use doesn’t apply to cable. “The laws on copying distinguish between broadcast and non-broadcast programming. Broadcasters are required to permit consumers to make a single copy of broadcast programming for time shifting purposes. However, the law allos non-broadcast programming networks to decide what copying privileges they wish to extend to customers.” Crawford says Section 1201(k)(2) of DMCA provides support for HBO’s position, and wonders how HBO subscribers will feel about this. “Are they so used to making copies that they’ll leave HBO in droves? Will they generally abandon cable for online sources of content? Probably not.” Quoting further from HBO, “As television transitions from analog to digital technology, it will become important for distributors of high value programming to take similar steps [to restrict fair-use copying].” Her closing comment: “Hang on to your old open devices. And don’t look to cable and satellite providers to provide you with lots of choices. Bit by bit, the analog hole is going to close.”

A December 13 commons-blog posting notes that a Time Warner executive has come up with a charming new term for the nonsense involved here: “transitional fair use.” What’s that? Limited-term viewing—e.g., only being able to view a recorded episode of a series until the next episode airs. It’s whatever use the producers think is fair.. What if you go on a three-week vacation? Tough luck.

Labels, Microsoft in talks on CD copying

Another headline, this time from a September 17 CNet News story by John Borland. There’s nothing new here: Microsoft has played with operating system-level copy protection ideas for some time. Up to now, the company’s always had the sense to realize that its customers would be outraged by such a restrictive move, but that could end. Here, the platform would be Longhorn, the next-generation Windows, which won’t appear until at least late 2006. “Secure computing” is the tagline—it’s one of those cute names that sells DRM and copy-restriction on the basis of improved OS security. Or maybe it’s secure against fair use?

The “rights” in digital rights management

Karen Coyle wrote this article, appearing in D-Lib Magazine 10:9 (September 2009) ( In six pages (plus endnotes), she discusses the “3 C’s of Rights” (copyright, contract, and control) and offers comments on rights and digital libraries.

The copyright section is cursory but points out that calling the internet a “copyright free zone” is nonsense. The contract discussion is more extended and worth reading, as is the discussion of control.

This recommended article is not an anti-DRM rant. It’s a thoughtful discussion that ends with these comments about rights and digital libraries:

The right answer to the rights question for digital libraries is not between rights technology A and rights technology B. We will need to understand a broad rights landscape, one as heterogeneous as the resources we manage and the users we serve. The due diligence we will need to assert will not only be to respect the intellectual property rights in the resources we manage but also to defend the rights of our users to exercise their constitutional and legal rights to make use of these resources.


Rosen, Hilary, “How I learned to love Larry,” Wired 12:11 (2004).

Rosen, former CEO of RIAA, recounts how, after spending her first post-RIAA summer in Italy, she found herself at USC anticipating a public debate with Lawrence Lessig.

Lessig and I were longtime rivals in the ongoing debate over copyright and technology. To present a balanced program on the issue, USC was paying us a tidy sum to spend two days disagreeing with each other in front of a lot of people. Despite my intention to leave my old competitive juices at the bottom of the Mediterranean, they were flowing again.

On the first night, the university’s Bovard Auditorium was packed. Lessig started with a tortured and sarcastic history of copyright protection. He railed against such public laws as the [DMCA], which created a US leadership role in protecting digital works against technologies designed to circumvent copyright protection. (That’s not how Lessig described the DMCA; that’s my view, of course. I had been instrumental in persuading Congress to pass the law in 1998.) When it was my turn, I pointed out the value of laws that kept pace with technology, rather than those that were usurped by it. Lessig also complained about [CTEA], which adds several years to the terms of protected works. I countered; Farmers can leave their property to their children; why shouldn’t songwriters be able to leave their songs to their children?

Ah yes: The simple assertion that “intellectual property” is the same as any other form of property—and never mind the plain wording in the Constitution. I guess it hasn’t “kept pace with technology.” She goes on to note that she eventually opened her ears enough (my wording, not hers!) to hear that Lessig “wasn’t defending theft; in fact, he was against it. That’s why he had helped found the nonprofit Creative Commons.” Rosen paraphrases Lessig’s case for CC—and does so reasonably. She says she’d dismissed CC as “a sleight-of-hand maneuver, a way to mouth platitudes about the benefits of copyright hile in fact joining ranks with the Everything for Free Foundation.” Pay close attention here: Rosen is smearing EFF and admitting that she’d been entirely close-minded about CC.

She goes on to say she’s still “cynical about [CC’s] origin, but I’ve come to love Creative Commons.” She even admits that RIAA’s massive lawsuit effort has had a “chilling effect on other, legitimate uses” of P2P. But here’s a key paragraph:

But let’s not go too far into dreamland. Yes, the current system of copyright can be antiquated and user unfriendly, and its enforcement can be discriminatory, but it has created a lot of wealth for individual artists, not just corporations. More important, it has created a vast body of art for the public. Let’s not dismiss it wholesale.

Who’s trying to dismiss copyright wholesale? Not EFF. Not Lessig. Not me. Attempting to protect fair use, attempting to retain the Constitution’s “limited times” protection, attempting to assure that copyright serves “to promote the progress of science and the useful arts” as well as “creating a lot of wealth”—those are attempts to restore some balance, not to overturn copyright. Rosen may get a little of that, but I don’t think she gets most of it.


Last summer (C&I 4:8), I noted Kahle v Ashcroft, the second attempt to overturn CTEA (on different grounds). The suit was dismissed in federal court last fall. The dismissal will be appealed. Meanwhile, as a commons-blog posting notes, librarians should turn to Congress for relief—the Public Domain Enhancement Act and possibly other rebalancing acts.

Here’s one that’s so bizarre I almost don’t believe it. I did a long writeup on the Kaleidescape Movie Server last May (C&I 4:7), a $27,000-and-up gadget for storing DVD movies on hard disk. Kaleidescape obtained a license to use Content Scramble System and believed it was working with the DVD Copy Control Association—but now DVD CCA has sued Kaleidescape! According to CCA, any copying of DVDs, even to a protected hard disk that can only be used by the DVD’s owner, is illegal. Kaleidescape’s CEO described himself as “flabbergasted” and said the company would fight the suit and probably countersue. Ed Felten comments, suggesting that the subtext is “that DVD-CCA is trying to maintain control over all technology related to DVDs.” I have no love for Kaleidescape—I think it’s a prime case of technological overkill and overpriced by roughly $26,500—but I hope they succeed in evading DVD-CCA’s power grab.

Speaking of power grabs, the American Chemical Society filed a complaint against Google Inc. Why? ACS claims that “Google Scholar” infringes on ACS’s SciFinder Scholar trademark and constitutes unfair competition. I guess ACS doesn’t always use “SciFinder” as part of the name. That a professional society would attempt to trademark “scholar” and prevent its use by others is mind-boggling.

Finally, for this installment, here’s another article worth reading:Bloggers beware: Debunking eight copyright myths of the online world,” by Kathy Biehl, published at llrx on November 28, 2004. ( Starting with the most obvious myth—“It’s okay to use anything that doesn’t have a copyright notice”—she proceeds to explain the truth behind some other myths that (some) bloggers seem to rely on in over-ambitious quoting. It’s a short, well-written article. Go print it, read it, and save it if you’re a blogger.


Cites & Insights: Crawford at Large, Volume 5, Number 1, Whole Issue 57, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced at least monthly by Walt Crawford, a senior analyst at RLG.

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