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


Selection from Cites & Insights 6, Number 8: June 2006


©3 Perspective

Copyright: Finding a Balance

Balanced copyright: A nice phrase and a worthy goal, but lacking in precision and rhetorical support. The loud voices on copyright issues tend to be at the extremes, even though it’s probable that most citizens are somewhere in the middle. Extremes are exciting; balance tends to be boring. But balance is what we need, in copyright as in other areas—and the current state of copyright law and enforcement in the U.S. is, I believe, wildly out of balance. This essay considers some of what’s going on and being said from the perspective of finding a balance.

First it wouldn’t hurt to repeat that golden oldie, the constitutional basis for copyright and patents in the United States:

The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writing and discoveries.

Consider three aspects of that brief, potent wording:

Ø    Purpose: “to promote the progress of science and useful arts.” Not “to make the grandchildren of authors and inventors wealthy”—remuneration is not mentioned. Not “to prevent the creation of new creations based in part on existing creations”—you don’t promote progress by preventing it. Not “to set a series of traps for unwary citizens through extraordinary penalties.” I read “promote the progress of science and useful arts” as meaning “encourage creativity.”

Ø    Length: “for limited times.” Not “forever on the installment plan.” I find it hard to believe that the founders would have thought of “lifetime plus seventy years” as “limited,” although technically it is. (Patents are better in this respect: The direct term is still 14 to 20 years, depending on the kind of patent.)

Ø    Parties: “authors and inventors.” Not “publishers and patent holding companies.” Since these essays are about copyright, I won’t get into the set of issues surrounding patent holding companies, but a balanced view of intellectual property in general might suggest that such companies represent a perversion of constitutional intent. That’s another topic for someone else to take up.

What do I mean by balance? I discussed that question two years ago in a Perspective at the end of a special copyright issue (C&I 4:8, Mid-June 2004). What follows is a slightly modified version of that essay (with a few additions) before catching up on some copyright resources.

Balanced Copyright: What It Means to Me

I read the news today, oh boy, about three cases where people were either arrested or chased out of a theater after diligent ushers spotted them using a camcorder to record a current motion picture.

I’ve been critical of Big Media and what I regard as extreme copyright legislation (at their behest) and practice, unbalancing U.S. copyright toward rightsholders at the expense of citizen rights. I’ve also been critical of the term “piracy” as used for most peer-to-peer file sharing and casual CD-R burning. I will continue to be critical in both areas.

So how do I feel about those devil studios urging ushers to spot camcorders in movie theaters and prevent them from being used, even charging people with crimes for using them?

More power to the studios. I hope they succeed.

Just as I cheer when those devils at RIAA manage to locate and shut down factories that demonstrably produce nothing but bootleg CDs and DVDs. Good for them.

There is such a thing as media piracy—the illicit mass redistribution of copyrighted materials for commercial profit, at the expense of creators and rightsholders. It does constitute a worldwide market running to billions of dollars. For software producers, motion picture companies, music publishers and, to some degree, book publishers, it’s a problem.

I can see no legitimate reason to have a camcorder when going to the movies, and certainly no legitimate reason to use one. When you buy a movie ticket, you’re buying the right to see one performance of one movie (unless it’s a double feature). You are not buying permanent rights to that movie. The same goes for live performances, most of which legitimately forbid the use of camcorders or other recording equipment. (Yes, there are exceptions, mostly pop and rock bands, and that’s great as well. For example, the Grateful Dead had an alternative business model that served them very well.)

Balanced, not weak

I believe in balanced copyright as a way to encourage creators and distributors—and, with balance, to encourage new partially derivative creations and assure a healthy flow of material to the public domain. Balanced copyright is not really weak copyright, certainly not where it comes to commercial exploitation without permission.

I was an annoying purist in my youth. I had one of the larger record collections in the co-op I lived in and kept the records in pristine condition. I would not, under any circumstances, loan those records to others (both because of probable damage and because I knew they were going to make cassettes from them) or dub cassette copies for others.

I’m also a science fiction reader with some sense of history. When someone says copyright should only last five or ten years, I remember Isaac Asimov’s Foundation trilogy. While Asimov was paid by Astounding for the serial publication of the stories that made up the books (at the absurdly low rates that the S.F. magazines have always paid), he made nothing from the first book publication because Gnome Press had persistent money problems and dealt with them partly by failing to pay royalties.

See Chapter 53 of I, Asimov for some details. “He [Martin Greenberg, head of Gnome] had an unalterable aversion to paying royalties and, in point of fact, never did. At least he never paid me.” Oddly, the Foundation trilogy was turned down by Doubleday (because it was old material), which published most of Asimov’s other book-length fiction and which—11 years later—bought the rights back from Gnome, then published new editions that were enormously profitable for Asimov and Doubleday. With a ten-year copyright, one of the landmark works in science fiction would have earned almost nothing for its creator. With a 28-year or 56-year copyright term, of course, Asimov did pretty well.

“Live with it” is not an answer

I am appalled by people who scan contemporary books and release the scanned versions to the internet. That’s copyright infringement of a sort that’s unfair to the creator and damages everyone involved. I’m no friend of most informal music downloading, either, even as I believe the RIAA has gone overboard in trying to shut it down.

Copyright infringement is not theft, but it is a crime. Blatant copyright infringement of currently available works is unethical as far as I’m concerned. The ethical issues get cloudier for works that are not available for purchase or where “purchase” has morphed into highly restrictive licensing.

I’ve heard the argument that, since digital transmission makes it easy to pass around perfect copies of anything that can be digitized, copyright is outmoded and people need to find other ways to earn a living. That’s excusing unethical behavior on the basis of technological imperatives. Telling me to “live with it” because that’s the way things are is a sneering, me-first response. It makes me want to scream. It does not, however, make me want to “put ‘em all in jail” or lock up creations with digital restrictions management so tight that everything becomes pay-per-use.

I believe most people understand that balanced copyright involves ethics as well as enforceability. Most people who find a book they consider worthwhile (and want to read more than once) will buy it even if photocopying it or downloading a scanned copy would be cheaper. There’s increasingly strong evidence that, at least for most adults, casual downloading to experiment with new music—ethically questionable though it may be—does not actually eliminate CD purchasing. I believe most U.S. adults, given the choice of a $20 DVD that clearly comes from the motion picture company or a $10 DVD with photocopied cover art sold by a street peddler will pay for the legitimate copy. In short, I believe that most people will behave ethically if ethical behavior is feasible.

Rights for creators and citizens

I also believe in the first sale doctrine and fair use. Once you’ve purchased a legitimate reproduction of a creation, you should be able to do pretty much anything you want with it—with a few exceptions such as making multiple copies for sale to others and, for some creations, carrying out public performances. (The latter is tricky, to be sure.) You should be able to lend it (as long as you can’t use it simultaneously), sell it (as long as you don’t also keep it), give it away (as long as you don’t also keep it), and copy portions of it for use in an assemblage. You should be able to use limited portions of it as inspiration or as the basis for a new creative work. You should be able to use it in the manner you see fit with those minimal restrictions noted. And, as long as it’s a mass-produced copy, you should be able to mock it, alter it, or destroy it as you choose: Moral rights should be limited to originals and limited-run artistic works.

Oh, and if you’re a creator, you should be able to give away as many of your rights as you choose. The concept that it’s unconstitutional to give away your work—and also require that someone who uses your work in other work must also give away the new work—is simply ludicrous. Right now, I retain some rights in Cites & Insights, but I reduce the full range of copyright by permitting both derivation (not stated in the current license) and reproduction as long as it’s not for sale. Those are my rights as the creator and copyright holder. If I changed the license to the “No rights reserved” dedication to the public domain (which I don’t plan to do), that would be my right as copyright holder.

I believe in balanced copyright. If that sometimes results in coverage that seems to say “a curse on both your houses,” that’s because sometimes neither extreme makes much sense.

2006 additions

Some additional clarifications and examples of what balanced copyright might mean:

Ø    When I say copyright infringement is not theft, I’m making what I believe to be a significant distinction—just as I believe there’s a crucial distinction between casual copying and piracy (that is, infringing distribution for commercial gain). Let’s say you walk into a restaurant, grab a chair, and leave with it. That’s theft, pure and simple: “the felonious taking and removing of personal property with intent to deprive the rightful owner of it.” But what if the chair continues to be there in the restaurant—what if it’s replicated instantly, at no cost or inconvenience to the restaurant, as soon as you remove the copy? Then the rightful owner isn’t deprived of anything. You may be guilty of a crime, but that crime is no longer theft. And that’s how most current copyright infringement, particularly noncommercial copying, works: You may be depriving the owner of a sale, but you are not depriving the owner of property.

Ø    Balanced copyright would not be a set of gotchas and treasure hunts, unlike the present copyright system. So, for example, orphan works would be available for reuse and republication—without the danger of a copyright holder turning up and claiming outrageously high penalties for each copy sold. Yes, a copyright holder should receive compensation for some portion of royalties they might have received if they had been available—but only at reasonable rates, and taking into account the costs of those who tried to find the copyright holder. Similarly, the penalty for noncommercial infringement should have some relationship to the plausible lost income for the copyright-holder, not hundreds of thousands of dollars and lengthy jail terms for noncommercial copying the equivalent of a $12 CD or $20 DVD.

Ø    Balanced copyright would assure that fair use is feasible, and that copyright holders using technological measures to prevent fair use should themselves be subject to penalties—not, as now, providing additional laws (DMCA) to prevent others from restoring fair use where it has been prevented.

Ø    Balanced copyright would encourage creation with the recognition that nearly all creativity is partially derivative, making it possible to create partially derivative works without fear of massive retribution.

Ø    Balanced copyright would provide adequate time for creators to gain from their creations, while maintaining a healthy and growing public domain by protecting creations for a limited time—and it’s hard to see how that limit should be more than 56 years.

Ø    I was delighted to read about a series of raids across the U.S. to deal with real piracy—the commercial sale of illegally copied discs. RIAA should be encouraging such raids and seizures. Seeking balanced copyright doesn’t mean abandoning copyright and doesn’t mean excusing all infringement. I applaud the conviction of a St. Louis theater worker for camcording and uploading a current-release movie in a theater; the Family Entertainment Copyright Act was a legitimate addition to copyright, and there’s no plausible excuse for theater camcording. Neither is there an excuse for the Star Wars III case, where illegal copies apparently came from the usual source: An insider, in this case an employee in a postproduction house.

I could go on. I’m sure I will, in comments here and in later issues. You should have an idea what I mean by now: Balanced copyright would provide plenty of financial incentives for creators to create—but within a framework that encourages other creators to create and that allows users, libraries and society to make effective use of those creations.

A confession here: I haven’t done my book reading on this topic, and I’m doubtless saying what some of the great thinkers have said more eloquently and with more precision. For now, this is my naïve view of what balanced copyright might be about. Let’s see what’s being said by others, and what’s happening (and not happening) in the real world.

Balancing Acts and Extremes:
Notes Along the Way

Consider just a little of what’s been said and done over the past year or so and not previously discussed in Cites & Insights:

Ø    According to a January 20, 2005 Wired News story, technology and consumer groups were “ready to get more aggressive” after fighting off the Inducing Infringement of Copyrights Act. Gigi B. Sohn: “Technology companies are starting to get religion in terms of courting Washington policy makers. If you just sit back on your heels and defend, [the entertainment companies] are just going to keep coming at you.” The piece mentions “talk of codifying the Betamax principle”—that is, assuring that technologies with both legal and illegal uses (like crowbars and computers) aren’t subject to litigation. Sohn was confident: “I think we are winning the public debate. The way will get legislators on our side is when their constituents tell them, ‘We want balance in copyright law.’” Sohn and Public Knowledge clearly don’t want to eliminate copyright; the goal sought here was balance. Unfortunately, about the best the groups managed in 2005 was a holding pattern: No improvement in citizen rights—but also very little stiffening of copyright law.

Ø    When Rik Lambers of Indicare reviewed a hearing on the DMCRA, a proposal that would move toward balanced digital copyright, Ambers saw the likelihood of restoring balance. As Lambers saw it, fair use (and European copyright exemptions) represent the users’ part of the copyright balance…and it’s clear that “technological measures do prevent fair uses.” Lambers’ sense at the end of the hearing: “Fair use, the ground on which the greater part of the DMCRA is founded, seems all but rock solid.” But the DMCRA made no headway—and Big Media continues to diminish or dismiss fair use and call for stronger technological measures. As of January 1, 2005, Lambers wrote “it seems uncontested that the anti-circumvention provisions of the DMCA have prevented consumers from actively making a fair use of content protected by technological measures” and “it is all but certain that the DMCRA or a comparable proposal will make it into law.” If that was the sense at the start of 2005, then 2005 was a dismal year: Few observers would now consider DMCRA “all but certain” to be adopted.

Ø    Donna Wentworth posted “What does ‘copyfight’ mean?” on July 30, 2005 at Copyfight. She noted Erik J. Heels’ definition: “[I]f ‘copyfighter’ means ‘one who fights against bad copyright laws…,’ then I am a copyfighter.’” Add Cory Doctorow’s definition: “Copyfight is the broad banner to describe people who are fighting for reforms to intellectual property—trademarks, patents, copyrights and what are called ‘related rights’ (broadcast rights and so on).” Wentworth’s own attempt: “[T]he copyfight is the battle to keep intellectual property tethered to its purpose, understanding that when IP rights are pushed too far, they can end up doing exactly the opposite of what they’re intended to do.” She goes on to lament the “baiting strategy” seen from the “other side”—“attempts to get a rise by either suggesting or outright arguing that people who fight for balanced copyright are automatically opposed to any and all copyright.” Indeed, citing a post from an intellectual property blog, she sees a challenge to “a critic to try to live an IP-free life for some brief period of time” and talked of “sitting in close proximity to the commies with the Free Software Foundation.” There’s more, but that may be enough: As I’ve seen myself, any argument for balancing copyright—for making copyright law do what the Constitution says—is met with claims that you’re wholly against copyright (“commies” is another version of extreme refusal to debate). “Is it really so difficult to agree that intellectual property can sometimes be pushed too far, in ways that harm society?”

A pause here to consider just how “extreme” Wentworth’s definition is: “the battle to keep intellectual property tethered to its purpose.” When copyright and other IP laws are too extreme, they prevent and discourage progress in science and the useful arts. When a filmmaker can’t release a documentary because a TV set was on in the background for a few second and the documentarian can’t afford to clear the rights to the TV footage; when modern composers can’t do what the great composers (certainly including Bach and Stravinsky) have always done, that is, build their own inventions making liberal use of the inventions of others; then, and in other cases, intellectual property laws are “doing exactly the opposite of what they’re intended to do.”

Ø    Is there a common platform for balance? Derek Slater hoped there was, in a May 5, 2005 A copyfighter’s musings post, “The commoners’ common platform.” He expressed discomfort with a particular “free culture” group “excusing and encouraging widespread, infringing P2P file-sharing” and doing so “as a means to destroy the major record labels.” In short, Slater argues against copyright extremism on the other side. “We can argue that lawsuits against file-sharers will not reduce infringing file-sharing… We can recognize that not all file-sharing is harmful and that there is not firm evidence that it has already done significant harm. But we can say all that without supporting widespread infringement…and, indeed, by actually saying, don’t infringe.” He quotes Lawrence Lessig: “I have no patience for people who download music contrary to the wish of the original copyright owner.” He dismisses the idea that widespread infringement is a legitimate way to change the music industry: “Deeming it an illegitimate business model by itself doesn’t provide a sufficient rationale for infringement.” Like me, Slater was worried that EFF’s Let the Music Play campaign would be misinterpreted. (Actually, I was unable to come up with any interpretation of EFF’s publicity, particularly the “60 million file sharers can’t be wrong” campaign—and I may have that wrong—that didn’t smack of excusing and possibly condoning infringing file-sharing, one reason I’m wary of EFF in some areas.)

Ø    Commenting on Slater’s post, Seth Finkelstein concluded that, “to a good approximation, we can’t” synthesize the interests of the more extreme and more moderate parties into one common cause. “Welcome to The Movement, try not to get shot by all the in-fighting.” Finkelstein notes that liberals and radicals on almost any topic have very different attitudes and methods—and that, “As a rule, liberals and radicals hate each other.” Finkelstein says “no radical will ever change their mind from being criticized by a liberal”—and notes that, unfortunately, radicals provide cover for the other side to denounce liberals as being radicals. “When lying works in attacks to smear one’s view, no matter how hard one works at distancing, the mud just doesn’t come off.” Finkelstein believes that if “anti-copyright” extremists didn’t exist, they’d be invented, since they’re so useful to extreme protectionists as straw men. Slater responded, in a brief response that basically calls for one fairly radical group to say that it does not support widespread infringing P2P file-sharing. In a separate response to Slater’s post, Fred von Lohmann of EFF asserted that “wide-open, unhindered file sharing is a great thing” and rejected any suggestion that the people who built “the greatest music library in the history of the world” (the Napster universe at its peak) should “hang their heads in shame” or, indeed, that they’d done anything wrong. He agrees that “file-sharing without compensation is not realistically sustainable, nor good in the long run for those who care about music or the Internet,” but it’s a semi-admission of trouble within his extolling of the “right instincts” behind infringing file-sharing.

Ø    Steps toward balance might be as simple as clarifying unclear law. Section 108 of the Copyright Act allows libraries, archives and nonprofit educational institutions to make copies of protected works in the last 20 years of the copyright term as long as the works are not subject to “normal commercial exploitation” nor obtainable at a reasonable price. As Mary Minow noted in an August 5, 2005 LibraryLaw blog post, “What does [normal commercial exploitation] mean?” In this case, the Library of Congress convened a Section 108 Study Group “to conduct a reexamination of the exceptions and limitations applicable to librariesd and archives under the Copyright Act…” The group includes lawyers, librarians, academicians, and representatives from Big Media. It is holding a series of private meetings and public roundtables.

Ø    Stereophile doesn’t usually spend time on copyright, but ran a substantial article by Laurence A. Borden in September 2005, “Copying and sharing recorded music.” It says the ability to make perfect digital copies of music and share them on the internet “has created a copyright-infringement nightmare of epic proportions for the recording industry.” We learn that “fair use is not granted automatically” [emphasis added] and that fair use “is not a right in the sense of the right to vote.” Reading the article, you’d never guess fair use is actually part of the Copyright Act—and Borden refers to “finite periods of time,” not the “limited term” in the Constitution. Borden says the Audio Home Recording Act “permits the manufacture and use of digital and audio recording devices,” which is pure nonsense (there were a lot of perfectly legal recorders around before 1992). He refers to “copy-protected CDs” (which don’t exist, as copy protection violates the CD standard), a sloppiness that seems odd for a magazine as devoted to excruciatingly narrow distinctions as Stereophile is. He says the INDUCE Act “would hold technology companies responsible if their devices are used to commit copyright infringement,” which considerably overstates the awfulness of a bad bill. He repeats “copyright nightmare” in regard to digital technology, and seems to conclude that it’s only reasonable to lose our “privileges” (not rights, apparently) if anyone infringes. It’s a sad article that basically hews the maximalist-copyright Big Media line; it’s also fairly typical of mainstream media.

Ø    Edward W. Felten notes the ease of overstating positions in a May 9, 2005 Freedom to tinker post, “Nobody disputes this post.” There was a debate between an MPAA lawyer and an EFF lawyer; the MPAA lawyer said “nobody disputes” the effectiveness of filtering—that is, technology to detect and block copyright material as it crosses a network. As Felten notes, the statement is “obviously false”—and a questionable debating tactic, “since it practically invites somebody in the room to falsify your statement by disputing X.” Which he did. And, of course, if you’re going to say “nobody disputes X,” you should be able to provide evidence in support of X—which the MPAA lawyer failed to do. Thus we get extreme arguments: The side favoring maximalist protection makes false assertions without evidence, and assumes (correctly) that many will believe the assertions.

Ø    The public domain offers one shrinking form of balance—but some publishers try to claim copyright in public domain works. Raizel wrote a long, fascinating discussion on March 15, 2006 at LibraryLaw: “The tale of one bunny, copyright statements, & public domain: A cautionary tale.” It starts with Jason Mazzone’s fine term for the claim of copyright in public domain materials: Copyfraud. Raizel cites part of the copyright notice in a mystery novel based on the life of Beatrix Potter, including references to some of Potter’s characters such as Peter Rabbit. This notice claims that Frederick Warne & Co Ltd is the sole and exclusive owner of the “entire rights titles and interest in and to the copyrights and trademarks of the works of Beatrix Potter…” From that, you might assume that the Peter Rabbit books are under copyright. But they’re not, at least not in general: The tale of Peter Rabbit was officially published in the U.S. in 1904, clearly placing it in the public domain. One Potter story is definitely under copyright; many definitely are not—and several cover illustrations are also in the public domain in the U.S. There’s a lot more here regarding trademark and its uses, but the key here is that the copyright statement, while legitimate, may be misleading. Warne does own the copyrights—but only where there are copyrights. One wishing to republish Peter Rabbit stories might be scared off by the copyright notice and not choose to investigate enough to realize that it’s not applicable to some of the stories.

Coping with orphan works: following up

As discussed in March (C&I 6:4), the Copyright Office issued a Report on orphan works that recommends legislative steps to make orphan works more manageable—that is, to allow people to republish or otherwise use orphan works after reasonable attempts to contact the copyright holders, without the new users facing extreme penalties and without totally disenfranchising the copyright holders if they do turn up.

Lawrence Lessig wasn’t thrilled. He introduces a nine-page letter to Zoë Lofgren with the comment “No one will like me for this letter.” (Lofgren asked for Lessig’s views; she’s one of the two most significant Congressional forces for balance, and earlier introduced the Public Domain Enhancement Act.) Lessig notes the significance of Copyright Office recognition that copyright owners bear some burdens as a condition of getting the full benefit of copyright. “Every property system places some burden on the property owner to help assure that the property system functions efficiently”—but since the requirements for registration and even assertion of copyright were eliminated, copyright seemed to be an exception.

But Lessig believes the Copyright Office’s proposed reforms “both go too far, and not far enough.” Too far: Even recent works could be considered orphans, and Lessig worries about that. He also believes that unpublished works shouldn’t be subject to “orphan work” analysis. Lessig believes that the real problem of orphan works “is tied to old works”—and specifically to old published works. He suggests 14 years as a cutoff—that is, that no work could be considered an orphan if it’s 14 years old or less.

Not far enough: The Berne Convention prohibition of required “formalities” (that is, asserting copyright or registration) apply to foreign works; the U.S. can require formalities of its own citizens. Lessig doesn’t favor a government-maintained registry, but does favor a set of minimum protocols for private copyright registries. (He uses internet domain registries as analogous competing registries.) As before, Lessig’s preferred “limitation on remedies” for cases where copyright owners don’t register after 14 years is that the works go into the public domain—or to specify “a very minimal royalty rate for any commercial use of a work that has not been properly registered.” He suggests changes in PDEA as a proposal based on those comments.

Jerry Brito and Bridget Dooling published “An orphan works affirmative defense to copyright infringement actions” in Michigan Telecommunications and Technology Law Review 12 (2005) (www.mttlr.org/ voltwelve/brito&dooling.pdf). The article offers a good discussion of the orphan works problem in the real world, but criticizes all proposed solutions based on the assertion that the Berne Convention “prohibits formalities that are conditional to the enjoyment and exercise of the minimum rights it adopts,” ignoring nationality. The article also asserts that PDEA’s $1-per-work fee represents “a large up-front cost for many existing copyright holders,” even as it only applies to works more than 50 years old. Similar objections—based on the assertion that Berne is absolute in all cases, and claims of burden, are used to fault every solution put forward. As far as Brito and Dooling are concerned, Berne assures that copyright is an exclusive property right, and that’s the end of the discussion. (Later on in the article, there’s a brief admission that the Berne ban on formalities need not apply to U.S. authors.)

What solution do Brito and Dooling offer? One that would cheer the hearts of underemployed lawyers: an affirmative defense similar to fair use:

The proposal is that if, after a reasonable search in good faith, no copyright holder for a work is found, the work may be used without the user being subject to liability. A user who is subsequently sued for infringement will be able to defend by claiming a codified orphan works defense.

First you spend the money for a good-faith search. Then you’re left in a fair use situation: Subject to lawsuit, but if you can afford the lawyers, you have a line of defense. The authors say this would “encourage the use of orphan works by significantly reducing the fear of automatic and harsh penalties for infringement” (emphasis added)—not by eliminating that fear or reducing the possible penalties, but by giving the user a better shot in court. I suppose that’s better than nothing—but surely not ideal.

Balance and Imbalance: A Few Longer Pieces

The Center for Democracy & Technology issued “Protecting copyright and internet values: A balanced path forward” in spring 2005. CDT defines “balance” oddly, as in the blurb before the white paper itself: “In CDT’s view, a combination of robust enforcement of copyright law to make infringement unattractive and technical protections for online content offers the best possibility of fostering vibrant new markets for content delivery, consistent with innovation and the open architecture of the Internet.”

Balance? Perhaps CDT means “robust” legal enforcement is balanced by DRM—but that’s a bizarre form of balance for anyone but copyright maximalists. CDT calls itself “a civil liberties and public policy organization dedicated to defending and enhancing the free flow of information on the open, decentralized Internet”—but as with its white paper favoring the Broadcast Flag, CDT might best be known by the stances it takes, not its asserted dedication.

The white paper refers to “creators, consumers, and technology innovators.” As we know, “consumers” have two rights: to buy and to not buy. Citizens might expect a broader range of rights—but the white paper conspicuously omits “citizens” as players in this game. It’s about “creators” (by which CDT presumably means rightsholders) and “consumers”—sellers and buyers. And, indeed, the supposed tension behind debates over intellectual property is between “the system for rewarding creators” and “the growing capabilities of computers and the Internet.” Citizens? Fair use? Not in the equation.

Some of us see that new creation is hampered by DRM and excessively tight copyright—but not CDT. It sees “possible massive infringement of copyright” as the evil that “hurts artists and chills investment in new content.” The solution: Strict enforcement and “secure digital delivery”—which has the side effect in most cases of eliminating fair use and restricting or eliminating first sale rights.

CDT repeats this message with three bullets for essential components: “Punishing bad actors” (which explicitly includes “individual infringers”), “Encouraging a marketplace of content-protective and consumer-friendly DRM” (although no DRM proposed to date has been in the slightest “consumer-friendly,” much less citizen-friendly), and “better public education by trusted voices.” What sort of education? Speaking out against “bad actors,” teaching consumers that illegal file sharing is “dangerous, unethical, and harmful to artists and creators,” and providing “information about DRM, so they can make informed choices.” Not choices to avoid DRM; CDT clearly thinks DRM is both necessary and a good thing.

CDT is explicit in calling all infringing file-sharing “piracy,” raising the objection that the term is applied too broadly, then slapping it down “given the prevalence, volume, and potential impact of clearly unlawful infringement.”

While there are some useful comments in this white paper, it’s about as far from a “balanced path” as would be an argument to abandon copyright altogether. CDT explicitly calls for “pursuing people” and applauds the mass RIAA suits. CDT calls for secondary liability (that is, those who develop technologies that can be used for infringement). CDT seems sad that the PIRATE Act didn’t pass. CDT regards “DRM [as] an essential component of a vibrant digital media marketplace,” making the claim that “Consumers benefit from DRM”—because it gives them more choices to buy things (and can require that they “buy” the same content over, and over, and over…) No mention of DMCA. No mention of fair use. No mention of first sale rights. No mention of citizens.

And CDT still wants a “balanced” broadcast flag.

Ernest Miller posted “CDT’s ‘balanced framework’ for copyright completely unbalanced” at The importance of… on June 7, 2005. As he notes, “any policy based on treating citizens solely as consumers is doomed to failure from the start.” “There really isn’t anything like a ‘citizen creator-friendly DRM’”—so CDT’s consistent use of “consumer” makes sense. He notes that the “public education” called for conspicuously omits “educating people about their rights with regard to content.”

Miller explicitly calls a claim in the CDT paper into question. CDT says “For example, many so-called ‘100% legal’ file-sharing services are in fact unlicensed services that defraud consumers by promising lawful access to works.” But, as Miller notes, the FTC staff has reviewed representations made by file-sharing distributors and concluded: “None of these representations appear on their face to be false or misleading.” Apparently CDT knows better than the FTC.

Miller concludes CDT’s “balance is nearly entirely one-sided in favor of the content industries.” It’s hard to disagree with that take.

Ed Felten commented on the CDT paper and Miller’s comments, but focuses on CDT’s pro-DRM stance. “Here CDT’s strategy is essentially to wish that we lived on a planet where DRM could be consumer-friendly while preventing infringement. They’re smart enough not to claim that we live on such a planet now, only that people hope that we will soon.” Indeed, the examples cited by CDT (such as FairPlay) all restrict reasonable use. Felten studies DRM a lot—and doesn’t see any real-world DRM as being “consumer-friendly” much less citizen-friendly. He also points out that CDT’s assertion that “producers must be free to experiment” with various forms of DRM and distribution doesn’t really mean what it says in an era where tens of millions of citizens are also producers at some level. “What they really mean, of course, is that some producers are more equal than others”—that is, those producers “who are expected to sell a few works to many people.” Or, to put it bluntly, Big Media.

Adelphi Charter on creativity, innovation and intellectual property

The Royal Society for the Encouragement of Arts, Manufactures and Commerce (RSA) published this one-pager on October 13, 2005; you can find it and related FAQs at www.adelphicharter.org. The left column states reasons for balance; the right offers nine principles for law regarding intellectual property.

It’s a good starting point for a balanced perspective. It recognizes that “creative imagination requires access to the ideas, learning and culture of others, past and present.” It says the purpose of intellectual property law should be “now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation”—and it recognizes that today’s IP regime is “radically out of line with modern technological, economic and social trends.”

I won’t cite all nine principles, but portions of the first four, the sixth, and the ninth are worth quoting:

1. Laws regarding intellectual property must serve as means of achieving creative, social and economic ends and not as ends in themselves.

2. These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life.

3. The public interest requires a balance between the public domain and private rights…

4. Intellectual property protection must not be extended to abstract ideas, facts or data.

6. Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.

9. …There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights…

The seven-page FAQ provides useful background both on the charter and on RSA. That FAQ does distinguish between commercial large-scale copying (piracy) and “incidental and even accidental on-line copying at home for private non-commercial use.”

I find little or nothing in the Charter or FAQ to disagree with. It’s an excellent starting point for a balanced discussion of balance.

Unintended consequences:
Seven years under the DMCA

This 15-page paper (v.4, April 2006, available at www.eff.org) is the latest in a series studying the real-world effects of DMCA in chilling free expression and scientific research, jeopardizing fair use, impeding competition and innovation and, surprisingly, interfering with computer intrusion laws. EFF may be unnerving on some issues, but their fact-finding is excellent and this paper spells out real examples.

I reviewed version 2.1 in March 2003 (C&I 4:1); that version (subtitled “four years under the DMCA) was ten pages long. I believe most of the actual cases cited there are still in the newer version, joined by some others that are equally astonishing. It’s worth noting that then-White House Cyber Security chief Richard Clarke has expressed concern that the DMCA has chilled legitimate computer security research.

You’ve heard about some of the abuses of DMCA over the past three years. Streambox being enjoined from offering a product to time-shift streaming media. Apple threatening DMCA action after RealNetworks announced technology that would enhance Apple iPods by enabling them to play Real downloads. Apple (again) preventing a small retailer from making it possible to use iDVD software on older Macs using external DVD burners, threatening DMCA suit. And so it goes.

What’s the Story?

The good people at It’s all good reminded me (and others) of the importance of story—something that I’m afraid is frequently missing from C&I essays.

The story here begins with what I believe copyright balance is all about—and a series of examples that may help show why balance is so difficult to achieve and even difficult to advocate. Balance is boring. It’s bland, the work of liberals, detested by radicals and conservatives alike. It’s also (in my opinion) where the world works best. It’s easy to take a position just one step shy of the most extreme and call it “balanced,” as CDT seems to do. It’s all too easy for extremists to accuse balance proponents of being at the other extreme.

Do I believe we’ll achieve a copyright balance that I’d find wholly satisfactory? Probably not. I believe the best that’s achievable, given the forces at work, is a tendency toward balance—and, with any luck, a tendency against further overprotection.

Libraries need balanced copyright. Creators need balanced copyright, although copyright holders may be served better by extreme copyright. Citizens, creators, and (if you must) consumers are all part of the same pool, and most of us are all three at some point. We need to work toward a balance we can live with.

Cites & Insights: Crawford at Large, Volume 6, Number 8, Whole Issue 78, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at RLG.

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