http://chronicle.com/weekly/v48/i47/47b00701.htm
By SIVA VAIDHYANATHAN
Let's pretend that a journal has just published your harshly negative review
of a book in your field. In this review, you quote short passages from the book,
confident that the long-accepted concept of "fair use" enables you
to make even unwelcome use of copyrighted material for purposes of criticism.
But a week or so after the electronic version of the review appears on the publication's
Web site, the editors inform you that it violates the 1998 Digital Millennium
Copyright Act, and that they are removing it. You are welcome to respond. You
are free to argue that the use of the copyrighted quotes falls under fair use.
But the publication is under no obligation to accept your defense. So you publish
the review on your own Web page. But you soon discover that all of the major
Web search engines have removed your site from their indexes.
That couldn't happen, you say? Welcome to the new millennium.
When Congress brought copyright law into the digital era, in 1998, some in academe
were initially heartened by what they saw as compromises that, they hoped, would
protect fair use for digital materials. Unfortunately, they were wrong. Recent
actions by Congress and the federal courts -- and many more all-too-common acts
of cowardice by publishers, colleges, developers of search engines, and other
concerned parties -- have demonstrated that fair use, while not quite dead,
is dying. And everyone who reads, writes, sings, does research, or teaches should
be up in arms. The real question is why so few people are complaining.
Consider the recent case of the Church of Scientology International and the
search engine Google. The wealthy church used the threat of a well-financed
lawsuit -- and the 1998 act's provision that a service provider will not be
liable for infringement if it moves with "dispatch" to delete offending
material -- to persuade Google to block links to several sites that included
criticism of Scientology. "Had we not removed these URL's, we would be
subject to a claim for copyright infringement, regardless of its merits,"
Google said.
Back in the 20th century, if someone had accused you of copyright infringement,
you enjoyed that quaint and now seemingly archaic guarantee of due process.
Today, due process is a lot harder to pursue, and the burden of proof increasingly
is on those accused of copyright infringement. For the copyright act, in essence,
makes the owner of every Internet service provider, content host, and search
engine an untrained copyright cop. The default action is censorship.
The conflict between the Church of Scientology and Google is one of many such
cases. In July 1999, shortly before Talk magazine made its debut, the writers
John Aboud and Michael Colton posted online a parody of the magazine, which
-- until it folded -- was produced by a partnership between Hearst Magazines
and Miramax Films. Miramax lawyers sent a cease-and-desist letter to Earthlink,
the Internet company that owned the server on which the parody sat. Earthlink
immediately shut the parody down, although it restored the site after Talk's
editor, Tina Brown, appealed to let it stand. Lawyers for both Miramax and the
Church of Scientology cited the Digital Millennium Copyright Act (often known
by its abbreviation, DMCA) as the basis of their claim.
Besides prompting such censorship, the act has another major provision, which
upends more than 200 years of copyright law that has, until now, served democracy
well: the principle that what copyright law does not specifically protect remains
available to all to use, for whatever purpose the user sees fit. The DMCA bars
the circumvention of electronic access controls that protect online works, a
provision that seems to block the use of even those portions of works that might
be in the public domain.
How direct the assault on academic freedom could become was demonstrated in
spring 2001, when the music industry tried to prevent a computer scientist,
Princeton University's Edward W. Felten, from presenting a scholarly paper at
a conference. The Recording Industry Association of America argued that the
paper dealt with encryption algorithms that it hoped to use to protect digital
content, and so violated the copyright law. The association backed down, but
the Felten case is merely the best known of several efforts that online-content
industries have made to prevent researchers from discussing certain technologies
and algorithms.
All of that is the reason I view the Digital Millennium Copyright Act as reckless,
poorly thought out, and with gravely censorious consequences. Yet, back in 1998,
when Congress passed the law, there was little public outcry -- or interest,
for that matter. The news coverage tended to treat the act as a harmless extension
of copyright to the new digital world. Most often, those who raised concerns
were dismissed by advocates of copyright protection as radicals who were against
copyright in general.
Since 1998, the DMCA has revealed itself to be a failure. It has not been effective
at preventing piracy in cyberspace, yet it has managed to stifle harmless and
even beneficial uses of material for research and teaching.
Various groups -- software producers, artists, writers, librarians, media activists
-- have protested. But, with a few notable exceptions -- most significantly
the Digital Future Coalition, an alliance that includes law professors, library
groups, and scholarly associations -- we academics have been painfully slow
to argue against abuses in and of copyright law.
When the DMCA was being considered, the Digital Future Coalition put up an admirable
defense of the principles of access and fair use for teaching, research, and
criticism. But the commercial forces allied against it were too formidable.
In the absence of widespread public outcry, Congress could only rely on what
the most powerful interested parties told it: that if some copyright protection
is good, then more must be better. Had there been some grassroots activism by
teachers, writers, and researchers, Congress might have realized that it was
considering reckless legislation.
At the 2001 meeting of the American Studies Association, fewer than a dozen
people attended a session that I organized on how the regulation of intellectual
property threatens intellectual freedom. And those sessions have been few and
far between at most academic meetings. If most of you and your colleagues have
even heard of problems with the Digital Millennium Copyright Act, chances are
you assume that other people will take care of them. Won't they?
Academics have more to lose in the copyright wars than most people do. We are
not only the source of much of the "content" in the world. We are
-- through our teaching and research -- among the major conduits and consumers
of the content that others provide. We have a vested interest in keeping information
flowing as cheaply, widely, and quickly as possible. We need a rich, diverse,
affordable, and accessible information ecosystem to do our jobs.
So why have academics been caught napping? I have several hypotheses. They have
to do with recent academic practice and culture, and its relation to our broader
society.
Perhaps we have too blithely assumed that Congress and the American people actually
value teaching and research and would not pass laws that impede either. We take
our privileged positions in society for granted, and don't work to explain the
importance of what we do. That is at the root of our discomfort when the public
and legislators tell us that our scholarship is too arcane, our costs too high,
and our workload too light.
Perhaps we have been too busy tilting at the windmills of the culture wars and
the science wars to realize that the common interests of all academics are threatened.
Internecine strife is so much more immediate. Perhaps, when and if some of us
have realized that copyright matters, we have asked only, What's in it for me?
Say "copyright" to many academics, and do they think primarily about
protecting their own rights (even to a lot of what is really little more than
worthless online content) -- instead of the wider world of scholarship?
More broadly, a mood has come to prevail not only in the academy -- particularly
among administrators and trustees -- but also among legislators that has strengthened
the thrust of copyright revision. Together, trends in scholarship, copyright
law, and mood have combined to generate a set of assumptions about academic
work that are weighted toward the exploitation of professors and the protection
of a university's "property," and against sharing or distributing
knowledge. The rising importance of privately sponsored research on campus and
efforts by universities to capitalize on faculty research, distance education,
and other opportunities are changing the nature of universities. While they
are still the largest content-consuming institutions around, they have been
thinking and acting like content providers -- and have missed the radical implications
of changed copyright law.
As a result, course packets that used to be easy to assemble and affordable
to students are now a hassle and a big expense. Professors are abandoning them
in favor of prefabricated published readers or less-convenient library reserves.
Getting permission to quote from a song or to include an old photograph in a
scholarly publication is getting to be prohibitively expensive. Some professional
journals are demanding that academic authors assign all rights in all media
in perpetuity to them, then gouging subscribers and libraries for the right
to read materials that academics weren't compensated for in the first place.
Online journals are replacing paper volumes, allowing publishers to extort all
sorts of user restrictions from libraries. And those are just the micro-horror
stories, the short-term costs of current trends.
In a larger sense, while academics have slept, the content industries have systematically
stifled flows of essential information, created artificial scarcity, and made
certain areas of basic research potentially illegal.
Had we made a unified public stand against the Digital Millennium Copyright
Act and the Sonny Bono Copyright Term Extension Act in 1998, which extended
the term of copyright protection by 20 years, we might have been better able
to alter the terms of discussion, if not smooth out some of the more odious
portions of the laws. Had we been able to persuade humanities scholars to step
back from all the "problematizing" and "theorizing" that
fills so many seminar rooms and journals and, instead, organize around clear
themes and concerns, we could have joined scientists in their decade-long effort
to keep information flowing by protesting ever-more-costly journals. And had
administrators and lobbyists been less concerned about ways to capitalize on
the false promise of online, for-profit education and more concerned with the
actual future of education, we might have been able to unite in voicing opposition
to copyright policies that threaten us all. Despite fashionable cynicism about
our political system, Congressional representatives still read and care about
constituent mail. And they still care about their local education institutions.
Fortunately, scholars and teachers, even when silent, will benefit from the
hard work of public-interest groups like the Electronic Frontier Foundation,
digitalconsumer.org, and publicknowledge.org. These activist organizations are
struggling to accurately define the "public interest" in copyright
and debating how best to articulate the issues to a diverse public. But without
widespread, grass-roots support, these groups will face the same frustration
that the Digital Future Coalition experienced in 1998 -- a remarkably powerful
and well-financed campaign from the entertainment industry. They need us as
an ally.
Public-interest copyright activists are an ideologically diverse group. Many
of us are classically liberal, civically republican, and philosophically pragmatic.
We focus on restoring the balanced, humane principles that used to guide American
copyright. We frame our rhetoric in terms of individual freedom, a modest level
of state intervention, and a flexible, adaptable regulatory system. Others come
from the perspective of religious freedom and conservative values. They want
parents and teachers to have the right and ability to edit digital material
they deem offensive, even if the DMCA prevents the use of the technologies required
to alter the work.
Other equally active critics of recent trends in copyright take a Marxist perspective.
They warn of the coming postindustrial infotainment-industrial complex and the
ways it has enlisted the state in efforts to make commodities of all information
and culture. Still others espouse a form of information anarchy. According to
them, if we empower every user, limit the power of large corporations to regulate
the flow of information, and democratize information generally, we can achieve
a state of absolute liberty in which we all can both create and consume material.
All the critics lament the erosion of the democratic safeguards that made American
copyright such a brilliant and effective system and that helped fill our libraries
with books. Copyright can censor. It is a prohibition on what we may reproduce,
quote, perform, and distribute. Over the past 200 years, however, through both
statutes and the common law, the copyright system developed four safeguards
that mitigated the potentially censorious power of its prohibitions:
* The principle of fair use -- in essence, a legal defense against an accusation
of copyright infringement. If you are accused of infringing, you can make an
argument that your use of the protected works is "fair" because of
some combination of these factors: The nature of the original work makes it
important that it be publicly discussed; the nature of your use of it is important
because of teaching, research, or commentary; you do not use very much of the
original work; your use does not significantly affect the market for the original
work. In the public discourse about fair use, it has served as a term representing
a collection of uses that consumers could consider "fair," like recording
television shows for later viewing, making audiocassette tapes or MP3 mixes
from compact disks, and limited copying for private, noncommercial sharing.
* The principle that after the "first sale" of a copyrighted item,
the buyer can do whatever he or she wants with the item, except publicly perform
the work or distribute unauthorized copies for sale. The first-sale doctrine
is what makes lending libraries possible.
* The concept that copyright protects the specific expression of ideas, but
not the ideas themselves. This is the least understood but perhaps most important
tenet of copyright: You can't copyright a fact or an idea. Because you can't,
anyone may repeat your idea, whether to criticize it or build on it. Journalism,
along with many other forms of common expression, depends on the principle.
* The promise that copyright will last -- as the Constitution demands -- for
only "limited times," thus constantly replenishing the public domain.
The public domain allows for low-cost scholarship, research, and revision of
formerly copyrighted works. The reason that bookstores are filled with high-quality
yet affordable scholarly editions of Mark Twain's The Adventures of Huckleberry
Finn and John Stuart Mill's On Liberty is that they are in the public domain.
The reason there is no annotated scholarly edition of Ralph Ellison's Invisible
Man is that it is not.
In other words, copyright, when well balanced, encourages the production and
distribution of the raw material of democracy. It is supposed to be an economic
incentive for the next producer, not a guarantee for the established one. But
after more than 200 years of legal evolution and technological revolution, copyright
no longer offers strong democratic safeguards. It is out of balance. Each of
the four safeguards is under attack by the copyright cartel.
We need to restore them. Some of us, therefore, are generating friend-of-the-court
briefs for the pending Supreme Court hearing on the constitutionality of the
Copyright Term Extension Act, in the case Eldred v. Ashcroft. We are fighting
for the First Amendment right of a hacker magazine, 2600 (and for the right
of everyone), to describe certain illegal algorithms and create hyperlinks to
other pages that describe or offer those algorithms. And we are playing defense
in the halls of the Capitol against pending legislation that would create a
new and dangerous property right in databases of facts, and even more odious
legislation that would require all producers of electronic hardware and software
to include anticopying devices in their products. On the positive side, we are
supporting Rep. Rick Boucher, a Virginia Democrat, who is considering introducing
legislation that would temper the more censorious aspects of the DMCA.
One way to move toward a definition of the "public interest" in copyright
is to examine its historical roots and the various concerns that interested
parties have had with the evolving system over the past 400 years.
At its birth in England, copyright was an instrument of censorship. In 1557,
Mary Tudor, the Roman Catholic queen, capped off a 120-year monarchal struggle
to censor printing presses by issuing a charter to the Stationers' Company,
a guild of printers. Only members of the company could legally produce books,
which had been licensed by the crown.
In contrast, the American copyright system, in place since 1790, has reflected
republican values. It grants a limited, temporary monopoly to a specific publisher.
But just as important, the framers and later jurists concluded that creativity
depends on the use, criticism, supplementation, and consideration of previous
works. Therefore, they argued, authors should enjoy a monopoly just long enough
to provide an incentive to create more, but the work should live afterward in
the "public domain," as common property of the reading public.
James Madison, who introduced the copyright-and-patent clause to the Constitution,
did not engage in absolutist "property talk" about copyright. He argued
in terms of "progress," "learning," and other such classic
republican virtues as literacy and an informed citizenry. When President George
Washington declared his support for the Copyright Act of 1790, he proclaimed
that it would be a step toward "teaching the people themselves to know,
and to value their own rights; to discern and provide against invasions of them;
to distinguish between oppression and the necessary exercise of lawful authority."
Thomas Jefferson -- author, architect, slave owner, landowner -- had no misgivings
about protecting private property. Yet he expressed some serious doubts about
the wisdom of copyright, based on his suspicion of concentrations of power and
artificial monopolies.
I believe that the Digital Millennium Copyright Act represents a failure of
that trust in the copyright system to cope with the democratic potential of
changing communication technologies.
The danger is clear. It's time to find a way to discuss copyright issues in
the public sphere that doesn't leave substantive deliberation to a select group
of trained experts. The public has as deep a stake in the outcomes of the copyright
debate as any lobbyist or plaintiff. At one point, Napster had 77 million registered
users, more than twice the number of America Online users. And there are few
Americans who have not wondered about the intrusive power of that video "mattress
tag," the FBI warning at the start of every rental videotape. But the common
rhetoric about copyright obscures much of what is at stake.
We make a grave mistake when we choose to engage in discussions of copyright
in terms of "property." Copyright is not about "property"
as commonly understood. It is a specific state-granted monopoly issued for particular
policy reasons. While, technically, it describes real property as well, it also
describes a more fundamental public good that precedes specific policy choices
the state may make about the regulation and dispensation of property. But we
can't win an argument as long as those who hold inordinate interest in copyright
maximization can cry "theft" at any mention of fair use or users'
rights. You can't argue for theft.
Two rhetorical strategies have emerged. Most prominent is "commons talk."
A growing number of activists and law professors are pushing for an appreciation
of the "information commons." Sparked by a brilliant 1997 article
by the Duke University law professor James Boyle, "A Politics of Intellectual
Property: Environmentalism for the Net?," this movement toward preservation
and expansion of an information commons resembles the environmental movement
40 years ago. With good luck and hard work, activists hope to build a similar
level of public concern and awareness about how information operates in society,
and the need for it to be commonly owned and shared. For an important statement
on the information commons, see David Bollier's Silent Theft: The Private Plunder
of Our Common Wealth (Routledge, 2002).
The second rhetorical strategy involves focusing on users of copyrighted material
-- everyone who reads, writes, watches, photographs, listens, or sings. This
is a more pragmatic approach, intended to warn people that the harmless acts
they have taken for granted for years, like making a mixed tape or CD for a
party, or "time shifting" television programs and skipping commercials,
are threatened by recent changes in law and technology. The organization digitalconsumer.org
is promoting "The Consumer Technology Bill of Rights," which makes
private, noncommercial uses positive rights instead of weak defenses to accusations
of infringement.
Within academe, we can use those strategies to make clear to our students, our
peers, our Congressional representatives, and the public that copyright is a
bargain, a good deal for everyone. As both content producers and users, we are
in a good position to outline the complexity and benefits of such a deal. And
we are in a good position to highlight the abuses that copyright holders have
engaged in since 1998.
We must be blunt about the current system's threats to free speech, intellectual
freedom, and the free flow of information. We must be careful not to be trapped
in nihilistic rhetoric about the "end of copyright." Copyright need
not end if we can rehabilitate and rehumanize it. Our jobs depend on it.
Siva Vaidhyanathan, an assistant professor of information studies at the University
of Wisconsin at Madison, will become an assistant professor of culture and communication
at New York University this fall. He is the author of Copyrights and Copywrongs:
The Rise of Intellectual Property and How It Threatens Creativity (New York
University Press, 2001).
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