Digital copyright and information policy

CASRIP High Technology Protection Summit

University of Washington

July 25, 1998


 
Kraig M. Hill et. al.,
GLOBALIZATION OF INTELLECTUAL PROPERTY IN THE 21ST CENTURY 299 (1999)

(CASRIP Publication Series # 4)


 

Digital technology and the Internet are calling into question some of the basic assumptions we've relied on for so long that we've forgotten that they were assumptions. Now when people say something like that, what they usually mean is that the ease and speed of digital copying makes widespread perfect piracy a reality. That's not what I mean.

No, what I mean is this: copyright has always given copyright owners limited rights. The cliché is that patents give patentees strong rights for a short period of time, while copyrights give authors weak and limited rights for a long period of time.

What digital technology and the Internet have done is this. First of all, any act performed on the Internet is at least potentially performed in every wired country in the world. If I should put a recording of this speech up on my web page, people can listen to it from any country where they can make an Internet connection. But copyrights laws have no extraterritorial effect. If, in this or any other crucial respect, copyright laws differ among the countries connected to the Internet (and they most certainly do), we have some very serious concerns.

Secondly, and for my money more importantly, digital technology has brought us to a place where we seem to have some fundamental conflicts between traditional copyright and authors' rights and traditional limitations on those rights. Authors and copyright owners have always had significant control over copying, but no control over reading. Authors and copyright owners have always had significant control over the sale of copies but not over the resale or reuse of copies. Authors and copyright owners have recently gained significant control over public performances and transmissions of works, but never over viewing.

When digital technology enters the picture, though, the lines between copying and reading, sale and reuse, performance and viewing get very blurry. The archetypal case is the Random Access Memory copy problem. When I insert the CD ROM I own of the Digital Encyclopedia Britannica in my CD ROM drive, and look up the entry on copyright law, am I making a copy or reading it? If we want to make sure that the copyright owner has as much control over copying of the digital version as it has over the copying of the print version, then it's tempting to say that I am making a copy. If we want to make sure that that the reader has the same access to the unprotectable ideas and information expressed in the digital version as she has to the unprotectable ideas and information expressed in the print version, then it's tempting to say that I am not making a copy.

So, I've identified two related problems. First, digital technology and the Internet have made the model of national treatment deeply problematic. Agreeing that each nation will give citizens of other nations the benefit of its domestic laws for acts occurring within its borders just doesn't work very well when actions happen in spaces that don't appear to have borders. Second, digital technology and the Internet raise very difficult policy problems about the balance between copyright rights and copyright limitations, and the rationale underlying that balance.

So, maybe what we need is some kind of unifying principle or rationale that would allow us to harmonize the various national copyright laws, so that we'd have, more or less, one standard, and that, as part of that process, would help us to reach the right balance between rights holder control and user access and use rights. Okay, so far I've said nothing even faintly controversial. Everyone agrees on all that.

Here's my bottom line: There doesn't seem to be a way to get there from here. Here's why. Rightsholders in most of the developed nations have persuaded their lawmakers to increase their rights by casting intellectual property as a trade issue. Put baldly, when you cast copyright as a trade issue, then what intellectual property is for is keeping people from other countries from stealing our stuff while enabling us to steal (excuse me; I meant "make use of") their stuff. Well, if you are a legislator using copyright to make trade policy, your views on what stuff ought to be made hard to steal and what stuff ought to be easy to steal are going to depend on what sorts of stuff you make at home and what you tend to import.

So, two years ago, everybody goes to Geneva and what they said they were doing was putting together two new treaties that would protect all works on the Internet under an agreed-upon scheme. Some of them, I'm sure, were sincere when they said that: they genuinely hoped to use the treaties to harmonize world copyright laws. What's been happening since the treaties were signed makes it clear that the result of world copyright harmony is not a likely outcome.

The treaties were signed 18-plus months ago. Today, in the United States we have a digital copyright bill pending in Congress. It passed the Senate 99-0. In a somewhat different version, it passed a divided House Judiciary Committee. In a still different version, it passed the House Commerce Committee last week, [41-0] unanimously. It has the support of the motion picture industry, the book publishing industry, the music business, the record industry, television broadcasters, and the two largest trade associations for software publishers.

There have been a large assortment of opponents to this bill at various points in its progress through Congress, including people, interests and groups that had never seen copyright to be a significant part of their agenda: telephone companies, consumer electronics manufacturers, the American Civil Liberties Union, the Electronic Frontier Foundation, the Computer Professionals for Social Responsibility, the Electronic Privacy Information Center, the Modern Language Association and the US Catholic Conference. Now what do these people care about copyright law?

About copyright law as we classically understand it, they probably wouldn't care a great deal. The thing that inspired all the trouble is that the digital copyright bill augments copyright by adding new rights of access-prevention, in order to give copyright owners continuing control over who can gain access to their works, essentially without regard to the limitations that traditional copyright law would impose on owner control. The bill does this by prohibiting (and indeed criminalizing) the circumvention of any technological measures that protects any work that contains any copyrighted material from unauthorized access. In addition, the bill makes it illegal (and in many cases criminal) to import or sell devices or perform any services that are intended to facilitate circumvention. The new anti-circumvention measures are not subject to the usual defenses against copyright infringement.

Many of you spend more of your time as patent lawyers than as copyright lawyers. Let me just run very quickly through a few of the important copyright defenses and limitations to jog your memory. We have a copyright exhaustion rule in the United States, which we call the "first sale" doctrine. If the copyright owner distributes a lawful copy, that exhausts the copyright owner's right to distribute or display that copy. The first sale doctrine permits you to loan this book you liked to your mom. It permits your kids to trade videogames with their friends. It permits all of us to have libraries and museums and art galleries and used bookstores.

The anti-circumvention provisions don't repeal the first sale doctrine; they just make it irrelevant. If you buy the Encyclopedia Britannica on CD-ROM, Britannica can use any of a variety of technological protection measures to ensure that only you can read it, or you can read it only six times, or you can read it only for a month, or you can read it only subject to a software device that transmits monthly reports about what items you looked at. You cannot legally gain access to the Encyclopedia unless you comply with the limitations, even though you purchased it.

Now, when this bill passed the Senate, at least some of its supporters claimed that the access prevention provisions applied only to initial access, not to subsequent access, but by the time the Bill got back over to the House, they'd thought better of it.

Another fundamental limitation in traditional copyright law is the copyright subject matter restriction that goes by the name of the "idea/expression distinction." The idea/expression distinction says that copyright protects original expression but not facts, ideas, systems, processes, methods of operation, principles or discoveries. It's okay to copy unprotected material without regard to whether you find it in a copyright-protected work. If you open up your bound volume of the Encyclopedia Britannica, you can't copy Britannica's words, but the company can't stop you from copying the information that those word express. If you go to an Ameritech yellow pages phone book, you can't take the front matter, but Ameritech can't stop you from copying down the names and phone numbers of all the copyright lawyers in town.

If Britannica or Ameritech uses a technological access control on the encyclopedia or the phone book, though, it would be illegal ubder the bill to get around that access control even if the only thing you wanted to do was to double-check some facts, or to find the phone number for some copyright lawyer you were hoping would help you defend yourself from Britannica.

Most controversial, to my surprise, has been the copyright fair use privilege, which excuses a host of technically infringing uses: personal copying, research and educational copying, copying for the purpose of reverse engineering, copying for the purpose of parody, use of short quotations, and so forth. The bill would have been signed into law long ago were it not for the fact that the content community has insisted that the anti-circumvention provisions not be subject to traditional copyright defenses and especially not be subject to fair use.

What that has meant is that every single industry that relies on some statutory exemption or on fair use to engage in activity that might otherwise be copyright infringement, has needed to get some sort of new statutory privilege to circumvent included in the bill.

That held the bill up until last week, when everybody agreed on a compromise giving the United States Department of Commerce the authority and responsibility to issue regulations to prohibit anyone from engaging in any acts of circumvention. Then anyone who violates the regulations would be civilly or criminally liable. Every two years, though, the Department can issue rules exempting certain classes of copyrighted works from the anti-circumvention regulations, if, in the Department's judgment, the use of technological protection measures will have significant adverse effects on lawful uses of the works. The process of applying for an exemption involves one of the horrors of American administrative law -- called a "rulemaking on the record" -- which combines the expense and delay of litigation with the institutional bias of administrative regulation. The idea, here, is apparently to make exemptions really difficult and expensive to get. Meanwhile, circumvention devices or services are made illegal, regardless of whether the classes of copyrighted works they relate to get a regulatory exemption from Commerce. (So, if you do get an exemption, there may be no practical way to make use of it.)

Now that Congress had added all these exceptions to allow particular segments of the industry to do what they say that absolutely need to do, the list of opponents has been winnowed down to nobody who matters. That means that the bill will almost certainly be signed into law before summer's end.

Now, this is the part where I say the stuff that's likely to cause some folks in the audience to grab me afterwards and accuse me of being disloyal to my country. This bill has been sold to Congress as a trade bill--that is, as a bill that will make it harder for folks outside of the US to steal American stuff and easier for American content owners to make foreigners pay for American stuff. How is it supposed to do that, given that U.S. copyright law has no extra-territorial effect? Well, the argument is that the law the US adopts will serve as a model for legislation to implement the WIPO treaties, and we'll be able to persuade other countries to follow our model, so the law Congress enacts will become the treaty implementation law enacted by all of the other signatory countries.

Will it work? Well, let's look at the law that is supposed to serve as this global model. The Bill that Congress is about to pass has a very broad prohibition on circumvention, with a bunch of specific, narrowly tailored exemptions for a bunch of important American industries. It also gives an opportunity to other users to take advantage of an extraordinarily difficult, complicated and expensive United States Department of Commerce rulemaking procedure to wangle narrow specific exemptions for themselves, so long as they have enough clout with the Commerce Department to pull that off. The bottom line: unless you are already an important player in the United States copyright industries, it will range from inconvenient to nearly impossible to do business except on whatever terms the copyright owners choose to set.

Now, there's no question but that the treaty permits this approach. Signatory countries are permitted to subject rights and prohibitions to a variety of exceptions. It would have complied fully with the treaty to limit any circumvention right by applying all of the traditional copyright defenses to circumvention. It is also okay, as far as the treaty is concerned, to blow off those defenses and instead put in a different bunch of exemptions to satisfy influential industry groups, like broadcasters and telephone companies. But it surely looks like an invitation to other signatory countries to enact some laws that also have broad prohibitions and then exempt any industries or institutions that are politically or economically powerful in those countries. Since copyright laws have no extraterritorial effect, anyone with political power at home will be able to circumvent at home; as a practical matter, almost nobody will be able to circumvent abroad. That seems unlikely to me to promote world harmony on intellectual property and digital media.

So, if it isn't going to solve the world copyright problem, what's the bill likely to do on the domestic front? The new law has the purpose of allowing folks to control who has access to what sorts of information sources. The version of the bill passed so overwhelmingly by the Senate placed no public policy limitations on the use of that control. The current version, achieved only after enormous fuss and nonsense and round the clock negotiations presents only the threat that public policy limitations might be imposed in favor of interests who navigate a series of long and difficult procedural hurdles, if they can prove that things are getting bad enough to warrant them.

I think my description of what the bill seeks to do is relatively uncontroversial. Supporters of the bill would quarrel with my normative bottom line -- that this bill is bad -- but they have made clear in their speeches in support of the legislation that they believe it will do what I said it would do; they just disagree about whether doing that is a good idea or a bad one.

But I think that once we all agree that this is what the bill would do, then it becomes clear that the bill will have enormous effects on what we call our information policy. Information policy has not commonly involved much copyright law until now. Instead, it's a combination of a bunch of stuff that we have generally left to other decision makers, and decided under different rubrics.: In the United States, most importantly, the entire field of information policy is surrounded and shaped by the freedom of expression law deriving from the first amendment to the United States Constitution.

Now, for the most part, American copyright law has never had to worry too much about a collision with the first amendment. Whenever a first amendment claim arose, a court more or less said "we don't see the problem." Why not? Chiefly because the limitations that restrict copyright -- the idea expression distinction, the fair use doctrine, and, I would even argue, the first sale rule -- kept collisions to a minimum. Copyright has ended up not significantly restricting either the ability to speak or the ability to gain access to information; and when it's threatened to, the courts have called the use fair.

Once we enact the new access control stuff, though, we have what in effect is a copyright law without those limitations. And one that promises or threatens (depending on your viewpoint) to have important effects on who has access to what information on what terms.

I'm surely not the only nor even the first person to notice that. Lots of folks noticed that. The interest groups who took this sudden interest in copyright law notice it. The membership of the House Commerce Committee, which has jurisdiction over the FCC and over most Internet-related issues, noticed it, and asserted jurisdiction over the bill.

And, the content community went ballistic. How dare Commerce Committee members meddle in copyright policy? What do Commerce Committee members know about copyright law, anyway? Why can't the House Commerce Committee leave this to the copyright experts, who understand what it's all about? At a university publisher's meeting a few weeks ago, the chief publisher's lobbyist went on and on and on about how profoundly illegitimate it was for the House Commerce Committee to interfere in copyright law. How dare they?

Now, I understand what the content owners were upset about. They'd spent all this effort, and a great deal of money, lobbying the Copyright Office and the members and staff of the House and Senate Judiciary Committees. They'd worked out this deal among themselves. And then, some folks who weren't even regular players at copyright tried to interfere.

But what did they expect? They put together this bill that did all the stuff they wanted but that would have had fairly significant incidental effects on just about everybody else, from car manufacturers to community colleges, and then they got surprised, nay outraged, when some of the everybody-elses said, "hold on, now, just what is it you're doing here?"

Once upon a time, the shadow cast by the copyright law was a pretty short one. Time was, copyright was a niche field. Most law firms had no copyright lawyers in the office; most law schools had no copyright professors on the permanent faculty; most lawyers couldn't tell a copyright from a patent from a trademark if it bit them, and didn't need to know the difference in any event. The copyright law, after all, governed the copyright industries and some behemoth user interests like libraries and schools, but when you got right down to it, the community of folks who needed to worry about copyright laws was really pretty small.

But copyright has grown. It has expanded, metastasized perhaps, until it reaches into most communicative transactions, and it is continuing to reach out and gobble up more and more of the world. What that means, is that every year, indeed every week, every day, more and more people who never needed to worry about copyright discover that it affects all manner of things that are important to them. And more and more of them, understandably, want to get a say in what the copyright law looks like.

If I'm right that the bill won't get us very far in terms of world copyright harmonization, then whether it's a good approach or a bad approach to tailoring copyright law for the Internet needs to be evaluated in terms of its domestic impact.

The domestic effects of this approach differ from country to country, depending on the shape of current copyright law and the rest of the legal infrastructure. Each country will need to evaluate it from the standpoint of its own domestic policy.

There are lots of ways to implement the treaty. I don't know that any of them would move us far in the direction of copyright harmony, especially after the United States adopts this particular approach.

At least for now, individual nations who want to implement the WIPO Treaties need to sort out for themselves which approach makes the most sense in terms of their domestic information policy. I'm not going to presume to tell you what that looks like, but I want to sketch, very briefly, what I believe that it looks like from the viewpoint of ordinary Americans, to give you a sense of the sorts of concerns that I am talking about.

In the United States I grew up in, we took for granted that we were entitled to say what we thought, to think what we wanted, and to learn whatever we were willing to explore. The information ethos in the United States has always included the principle that facts and ideas cannot be owned, suppressed, censored or regulated; they are meant to be found, studied, passed along and freely traded in the "marketplace of ideas." That has meant that the society made extraordinary efforts to ensure that everyone had free access to information. Free public libraries, free public schools, the whole system of advertiser-supported free radio and television broadcasting, the Freedom of Information Act and the government in the sunshine act, and the integral limitations on copyright rights were all part and parcel of that system. The United States government is prohibited by statute from claiming US copyright protection for any works that it creates. Most other countries don't make that choice. American public schools can be hauled into court if they decide to remove a controversial book from the school library's shelves. Most other countries don't make that choice either. For most of the 20th Century, though, it has been the case that courts, Congress, and other policy makers have subordinated a variety of important, valuable interests to the goal of ensuring broad, free access to information in the service of freedom of expression.

A central tenet of that system of values was the idea that if you could find the source of information, you didn't need anybody's permission to read it, to learn it, to use it, and to pass it on. The new regime is a very different one, since one will presumptively need permission each time one wants to see, hear, view, check, or pass protected material on, and all material is potentially protected because material that copyright cannot protect can be bundled inside an electronic envelope with stuff that it does. This is the sort of information policy that only a copyright lawyer could love.

Copyright lobbyists insist that the any incidental reduction in access to information and freedom of expression is worth it, because the new regime will make the world safe for valuable American intellectual property. Even if the new regime were likely to accomplish that, I think it would be the wrong policy choice to make. But, as I've explained, that's not the way the new regime is likely to work.

If I'm right about that, then we're giving up something that has had central importance to the American democratic system, in order to get something that, in fact, we're not going to get. Even for those who agree that piracy is so grave a threat that it calls for exceptional measures, this is not likely to be a very good bargain.