What the Election May Mean for Copyright

With the fate of the Senate still unknown, a full picture of the election remains to be drawn. On the House side, there is no uncertainty as to the majority, but we may not know for awhile who becomes chair of the IP subcommittee. Two names are mentioned frequently, Rick Boucher of Virginia, and Howard Berman of California. Both have a great deal of experience with copyright, and are highly regarded by their peers. I worked with both when I was subcommittee counsel, although quite a bit more with Mr. Berman who was on the subcommittee at the time. Mr. Boucher was very interested in technology and telecommunications issues and was not shy about expressing his views. I was also neighbors with both on a street two blocks from the Capitol and saw them around often. Either would be an excellent choice, and the choice is Mr. Berman's. The Democrats (unlike the Republicans) select committee and subcommittee chairs by seniority, and Mr. Berman has more seniority than Mr. Boucher. Mr. Berman therefore has what's called a right of first refusal to the IP subcommittee.

But will he exercise that right? I have heard that some in the copyright industries think it a foregone conclusion he will, especially if by declining Mr. Boucher takes over. Mr. Boucher is viewed by content owners as generally less sympathetic to their interests, although I would phrase the matter quite differently. Mr. Berman will always play an important role in the House on IP matters even if he is not chair of the subcommittee. In the past, he has taken great interest in international issues, and that may be the way he goes. The idea that he would pass on a different chairmanship solely at the urging of content owners is an idea that doesn't reflect Mr. Berman's overall interests or his role as a member of Congress. This isn't to say he won't take the IP subcommittee, it is only to say that I doubt the matter is as settled as some think.

Possible insights into Mr. Boucher's views are seen in his skepticism about the wisdom of sui generis database legislation and in this editorial he wrote in CNET on January 29, 2002, about why the DMCA has to be rewritten:

The American public has traditionally enjoyed the ability to make convenient and incidental copies of copyrighted works without obtaining the prior consent of copyright owners. These traditional "fair use" rights are at the foundation of the receipt and use of information by the American people.

Unfortunately, those rights are now under attack.

In 1997, motion picture studios, record producers, book publishers and other content owners came to Congress with a simple proposition: Give us a law that will stop pirates from circumventing technical protection measures used to safeguard copyrighted works, and we will release all sorts of exciting new content in digital formats.

At the time, libraries, universities, consumer electronics manufacturers, Internet portals and others warned that enactment of the broadly worded legislation would stifle new technology, would threaten access to information, and would move us inexorably towards a "pay per use" society. That day is now close at hand.

When Congress considered the content community's anti-circumvention proposal, I put forward a series of amendments intended to preserve the fair-use rights of consumers. My colleagues and I feared that broad application of the proposed new anti-circumvention law would threaten the viability of the fair-use doctrine in the digital age.

Unfortunately, as so often happens, Congress paid more attention to the loudest voices in the debate.

In writing the Digital Millennium Copyright Act (DMCA) of 1998, Congress made some important, but ultimately modest, changes to the original proposal. And we persuaded ourselves that we had achieved a rough balance of interests. But in the end, Congress agreed to a fundamentally flawed bill, which created the new crime of circumvention--a crime divorced from over a century and a half of respect for the fair-use rights of consumers.

The DMCA, as enacted, quite clearly tilted the balance in the Copyright Act toward complete protection and away from information availability.

In the three years since the law was enacted, we have not seen the promised new digital content. Instead, we have seen a rash of lawsuits; the imprisonment by U.S. authorities of a Russian computer programmer who had come to the United States to give a technical talk; and, more recently, the release of compact discs into the market that cannot be played in computers or even some CD players, and thus cannot be used to create custom compilations of consumers' favorite songs.

Some of the most serious lawsuits have implicated academic freedom and free speech. In response to an open challenge by the Secure Digital Music Initiative (SDMI), which invited the world to seek to defeat the watermarking technologies it had proposed for protecting digital audio content, Princeton University Professor Edward Felten and his colleagues defeated all of the proposed watermarks. The Felten team then sought to exercise their First Amendment rights by publishing the results of their scientific research and presenting the paper at a security conference.

Before he presented the paper, however, Felten received a threatening letter from the SDMI warning that doing so would subject him to liability under the DMCA. Felten then filed a lawsuit to uphold his First Amendment right to publish his research findings. The case has been dismissed, but the issue has not gone away, because the judge did not rule on the actual merits of his complaint.

Similarly, the publisher of 2600 magazine was sued by motion picture studios for providing a link to a Web site that contained the DeCSS code, which can be used to defeat the industry-standard DVD copy protection system enabling movies to be played on a Linux-based operating system. After losing at the trial level, the magazine publisher appealed, trying to preserve his right to link to sites without being held responsible for everything on those sites.

Unfortunately, the federal courts in these cases did not uphold the First Amendment rights of these publishers. In the 2600 case, the appellate court circumscribed traditionally accepted fair-use rights by declaring that these rights did not apply to the most convenient, highest-quality formats available to consumers. These examples of the content community successfully threatening and hauling into court individuals seeking to exercise traditional free speech rights demonstrate how the DMCA is flawed, and has tipped the copyright balance in a damaging way against traditional fair-use rights.

Given the breadth of the DMCA, the fair-use rights of the public at large also are at risk. From the college student who photocopies a page from a library book or prints an article from a newspaper's Web site for use in writing a report, to the newspaper reporter excerpting materials from a document for a story, to the typical television viewer who records a broadcast program for viewing at a later time, we all depend on the ability to make limited copies of copyrighted material without having to pay a fee or obtain prior approval of the copyright owner.

In fact, fair-use rights to obtain and use a wide array of information are essential to the exercise of First Amendment rights. The very vibrancy of our democracy is dependent upon the information availability and use facilitated by the fair-use doctrine.

Yet, efforts to exercise those rights increasingly are being threatened by section 1201 of the DMCA, which created the new crime of circumvention. Section 1201 (a)(1), for example, prohibits unauthorized access to a work by circumventing an effective technological protection measure used by a copyright owner to control access to a copyrighted work. Because the law does not limit its application to circumvention for the purpose of infringing a copyright, all types of traditionally accepted activities may be at risk. Any action of circumvention without the consent of the copyright owner is made criminal.

Consider the implications. A time may soon come when what is available for free on library shelves will only be available on a pay-per-use basis. It would be a simple matter for a copyright owner to impose a requirement that a small fee be paid each time a digital book or video documentary is accessed by a library patron. Even the student who wants even the most basic access to only a portion of the book to write a term paper would have to pay to avoid committing a crime.

The day is already here in which copyright owners use "click on" licenses to limit what purchasers of a copyrighted work may do with it. Some e-book licenses, for example, prohibit the reader from reading the book out loud. Some go so far as to make it a violation of the license to even criticize the contents of a work, let alone to make a copy of a paragraph or two.

To counter this emerging threat to traditionally accepted fair-use values, Congress must rewrite the law. We should begin by revising section 1201, which is at the heart of the Felten and 2600 magazine litigations, and which can be used to keep library patrons from copying even a paragraph from a book without making a separate payment.

The only conduct that should be declared criminal is circumvention for the purpose of infringing a copyright. That approach would provide adequate protection for copyright owners without abridging the legitimate fair-use rights of consumers, libraries, educators and other users.

For over 150 years, the fair-use doctrine has helped stimulate broad advances in scientific inquiry and education, and has advanced broad societal goals in countless other ways. In this emerging digital era, we need to return to first principles. We need to achieve the balance that should be at the heart of our efforts to promote the interests of copyright owners while respecting the rights of information consumers. We need to rewrite the law for the benefit of society as a whole before all access to information is irreversibly controlled. In short, we need to reaffirm fair use.