The Exclusive Right to ReadJessica Litman(*)
For what the king fundamentally insisted upon was that his authority should be respected. He tolerated no disobedience. He was an absolute monarch. But, because he was a very good man, he made his orders reasonable.- The Little Prince(1)
The hottest of hot topics in the copyright community these days is the information superhighway, officially dubbed the National Information infrastructure.(2) Copyright specialists are attending conferences, writing articles and speeches, convening advisory councils, holding public hearings, and caucusing over the Internet about how the information superhighway will, indeed must, be paved with copyright asphalt.(3) Some view the coming of the information superhighway as an opportunity to redesign intellectual property policy before stakeholders acquire vested interests;(4) others see an occasion to consolidate the advantages they currently enjoy under the copyright law or to close copyright "loopholes" that they feel have inadvertently sprung up in their way.(5) The federal government's Information infrastructure Task Force(6) has, with much fanfare,(7) issued a Draft Report containing its preliminary analysis of copyright issues affecting and affected by the Information infrastructure, and its suggestions for copyright revision.(8) The Draft Report recommends what it characterizes as minor clarifications of well-settled principles, and modest alterations to better secure copyright owners' control over works they produce.(9) The minor changes it recommends, however, would amount to a radical recalibration of the intellectual property balance.
The Report takes the position that current law secures to the copyright owner control over virtually any reproduction,(10) but finds the state of current law regarding transmission to be less than clear.(11) It therefore recommends amending the law in several respects. First, the distribution right should be amended to "reflect that copies of works can be distributed to the public by transmission, and such transmissions fall within the exclusive distribution right of the copyright owner."(12) Second, the Draft Report recommends expanding the current definition of "transmit" in section 101, to encompass transmissions of reproductions as well as transmissions of performances or displays,(13) and to add a test distinguishing between transmissions of reproductions and transmissions of performances and displays based on "the primary purpose and effect of the transmission."(14) Third, the Draft Report suggests an amendment making it clear that transmission of a work into the United States violates the copyright owner's exclusive importation rights.(15) Fourth, the Report suggests that the first sale doctrine, which allows the owner of a lawfully made copy to sell, loan, rent or otherwise dispose of the possession of that copy, be repealed insofar as it might apply to transmissions.(16) Finally, the Draft Report offers miscellaneous suggestions to forestall the emergence of other perceived threats to the copyright owners' bundle of rights.(17)
By vesting copyright owners with control of any reproduction or transmission of their works, and then defining reproduction and transmission to include any appearance, even a fleeting one, of a protected work in any computer, and any transfer of that work to, from, or through any other computer,(18) the Draft Report's recommendations would enhance the exclusive rights in the copyright bundle so far as to give the copyright owner the exclusive right to control reading, viewing or listening to any work in digitized form. The Draft Report comes down firmly on the side of increased rights for copyright owners and it endorses the goal of enhanced copyright protection without acknowledging any countervailing concerns.(19) Because it is an advocacy document, it at times misrepresents the state of current law.(20) It gives voice to only one side of complicated policy debates.(21) In some cases, the Report identifies a particular alternative as more desirable because it gives copyright owners rights subject to fewer exceptions.(22) The Report's drafters apparently did not perceive objectivity or balance to be their job.
Nor is anyone else clamoring to volunteer. The general public's interest in copyright legislation is diffuse; a grass-roots revolt of copyright users seems unlikely. Interest groups with copyright on their agendas have a long history of dropping their opposition to copyright amendments of general application in return for narrow provisions addressing their specific concerns.(23) Congress, for its part, has, since the turn of the century, been delegating the policy choices involved in copyright matters to the industries affected by copyright.(24) But, before we succumb to calls for further enhancement of the rights in the copyright bundle, we need to reexamine the intellectual property bargain from the vantage point of the public, on whose behalf, after all, the copyright deal is said to be struck in the first place.(25) Does the shape of the law as it currently stands make sense? Do the changes that are being proposed cause it to make more sense, or less sense?
At the turn of the century, U.S. copyright law was technical, inconsistent, and difficult to understand,(26) but it didn't apply to very many people or very many things.(27) If one were an author or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one's business. Booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary consumers could go about their business without ever encountering a copyright problem.(28)
Ninety years later, the U.S. copyright law is even more technical, inconsistent and difficult to understand; more importantly, it touches everyone and everything. In the intervening years, copyright has reached out to embrace much of the paraphernalia of modern society.(29) The current copyright statute weighs in at 142 pages. Technology, heedless of law, has developed modes that insert multiple acts of reproduction and transmission - potentially actionable events under the copyright statute - into commonplace daily transactions.(30) Most of us can no longer spend even an hour without colliding with the copyright law. Reading one's mail or picking up one's telephone messages these days requires many of us to commit acts that the government's Information Infrastructure Task Force now tells us ought to be viewed as unauthorized reproductions or transmissions.
What we know about the general public's impression of the shape of copyright law suggests that the public believes that the copyright statute confers on authors the exclusive right to profit commercially from their copyrighted works, but does not reach private or non-commercial conduct.(31) The law in this country has never been that simple; the copyright statute has never expressly privileged private or non-commercial use.(32) Until recently, however, the public's impression was not a bad approximation of the scope of copyright rights likely, in practice, to be enforced. If copyright owners insisted, as sometimes they did, that copyright gave them broad rights o control their works in any manner and in all forms,(33) the practical costs of enforcing those rights against individual consumers dissuaded them from testing their claims in court.(34) So long as nobody proposed to sue the nation's teenagers for copying music onto audio cassette tapes, or copying computer games onto floppy disks, what did it matter that some folks argued that if they chose to sue they could win?(35)
Nonetheless, by asserting that what members of the public think of as ordinary use of copyrighted works was, in fact, flagrant piracy, and that, as such, it undermined the national economy,(36) copyright owners may well have won a rhetorical battle the rest of the country never realized was being fought. As industries lobby, scholars analyze, and bureaucrats convene in too many meetings to consider the shape of the new-and-improved National Information Infrastructure, few people have seriously challenged copyright owners' claims to control all access to and use of the material they say they own.(37) Arguments for universal access are, so far, cast in terms of good citizenship rather than entitlement.(38) Even those who favor liberal subsidy of public access to the information highway seem to accept the contention that if copyright owners cannot maintain control of their asserted property, the wellspring of American creativity will dry up, our trade deficit will turn into a mushroom cloud, and our balance of payments will drop off and all into the sea.(39) Meanwhile, because the assumptions underlying copyright owners' claims to expansive control over the works they create and disseminate crept into our discourse without much examination at a time when the price of acknowledging them was only nominal, we have so far allowed important policy choices to be made without debate.
Imagine that you have been retained as the public's copyright lawyer. One morning, your client, the public, walks into your office to consult you about a deal that it has been offered. It seems that all of the industries with substantial economic stakes in copyright have gotten together and written up a proposal. Here it is: the current copyright statute. It's 142 pages long, and, frankly, it's a little hard to decipher. Your client stayed up all night to read it, and can't seem to make head or tail of it. In any event, your client drops this 142 page tome on your desk.
Client: "So, whaddya think? Should I sign it? Is it a good deal?"Would you recommend that your client sign on the dotted line?
You (temporizing): "It depends," you say. "What sort of a bargain do you want?"
Client: "Look; I'm not out to get something for nothing. I understand that authors won't write stuff if they can't get paid. I want them to make new works and I'm willing to pay them to do so. I want to encourage authors to write as many new works as they can. As for me, I want to be able to read, see, hear or download any work in captivity, and pay appropriate royalties for doing so.(40) Will this proposal let me do that?"
I would not. The text we're considering wasn't really written with your client's interests in mind. Most of it was drafted by the representatives of copyright-intensive businesses and institutions, who were chiefly concerned about their interaction with other copyright-intensive businesses and institutions.(41) For that reason, there's lots of verbiage speaking to the behavior of a public television station or a cable system operator with respect to the programming it might transmit,(42) but very few words addressing the behavior of a consumer with respect to the programming she might watch or record. You can find a fair amount of language relevant to the actions of a publisher bringing out an author's new novel, and the film producer that seeks to adapt the story for the screen,(43) but not so much about the actions of the police officer who buys and reads the book, rents and sees the film, and wishes the producer had not cast Tom Cruise in the leading role.(44) The law has a specific provision for retail stores who play the radio for their customers, but no language that seems to contemplate fraternities who play loud music for their neighbors.(45) Thus, the statute fails to discuss your client's ability or obligation to pay appropriate royalties in return for access, and there is no provision securing your client's opportunity to read, see, hear, or download copyrighted works.
One can draw different conclusions from the paucity of language speaking to the behavior of individuals who are consuming rather than exploring copyrighted material. One conclusion that is commonly voiced is that the statute really doesn't address the legal obligations of individuals acting in their private capacities.(46) An equally plausible interpretation, favored by copyright owners and copyright lawyers, is that the statute forbids private individuals, acting without permission, to invade the copyright owner's broad rights unless their behavior falls within an express statutory exception.(47) In the words of the Draft Report: "Users are not granted any affirmative "rights' under the Copyright Act; rather, copyright owners' rights are limited by certain exemptions from user liability."(48) There are not very many specific exceptions addressed to individuals' private actions, which means that individuals are routinely prohibited from doing the sorts of things that businesses have statutory exceptions for unless they first secure the copyright owner's permission.(49)
Either way, though, it doesn't seem as if the agreement reflected in the 142 pages is yet in your client's interest as your client has expressed it. Perhaps the changes suggested by the Draft Report will help.
The IITF Draft Report presents its task as the proposal of modest adjustments to repair the unintended damage that the passage of time and the growth of technology have had on the copyright law:
It is difficult for intellectual property laws to keep pace with technology. When technological advances cause ambiguity in the law, courts rely on the law's purposes to resolve that ambiguity. However, when technology gets too far ahead of the law, and it becomes difficult and awkward to apply the old principles, it is time for reevaluation and change. "Even though the 1976 Copyright Act was carefully drafted to be flexible enough to be applied to future innovations, technology has a habit of outstripping even the most flexible statutes."
The coat is getting a little tight. There is no need for a new one, but the old one needs a few alterations.(50)
The Draft Report recapitulates oft-voiced complaints about the damage to the integrity of the rights in the copyright bundle caused by the unanticipated fallout from digital technology.(51) The ease of digital copying is frequently said to pose a profound threat to copyright at its core.(52) The same technological miracles that pose the threat, however, have served up some unanticipated windfalls for the copyright owner.(53) The most crucial example is the evolution of the reproduction right into something more encompassing than envisioned in any copyright revision until now. United States copyright law has always given copyright owners some form of exclusive reproduction right.(54) It has never before now given them an exclusive reading right, and it is hard to make a plausible argument that Congress would have enacted a law giving copyright owners control of reading. A handful of recent interpretations of the statute, however, insist that one reproduces a work every time one reads it into a computer's random access memory.(55) For all works encoded in digital form, any act of reading or viewing the work would require the use of a computer, and would, under this interpretation, involve an actionable reproduction. One might therefore expect an analysis proposing modest alterations of the law (to fix unintended ambiguities) to suggest clarifying this point: amending the law to provide explicitly that an individual's ordinary reading, viewing, or listening to an authorized copy of a work does not invade the copyright owner's rights. Instead, debates on the intellectual property underpinnings of the proposed National Information Infrastructure have proceeded on the assumption that copyright does, and should, assure such rights to the copyright owner.(56) The Draft Report adopts this view; it claims that "it has long been clear that under U.S. law the placement of a work into a computer's memory amounts to a reproduction of that work"(57) and suggests that the expansiveness of the reproduction right should be exploited to ensure copyright owners' enhanced control of protected works.(58)
In fact, the Draft Report's characterization of current law is dubious, and the Report does not cite authority to support it. There is support available: the Report could have mentioned three recent cases,(59) a stray remark in the CONTU Report,(60) and brief discussions in a couple of recent law review articles.(61) This is some support, but it is hard to argue that the proposition "has long been clear under U.S. law." The CONTU reference is ambiguous; the other sources are recent. Authority on the other side of the question includes the statutory language,(62) and the following passage from the House Report accompanying the 1976 Act:
Reproduction under clause (1) of section 106 is to be distinguished from "display" under clause (5). For a work to be "reproduced," its fixation in tangible form must be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Thus, the showing of images on a screen or tube would not be a violation of clause (1), although it might come within the scope of clause (5).(63)I would argue that the better view of the law is that the act of reading a work into a computer's random access memory is too transitory to create a reproduction within the meaning of section 106(1).(64)
In any event, even if the Draft Report's characterization of current law were not skewed, its endorsement of what it presents as well-settled law deserves examination. If a bargain between the public and the authors and producers of copyrighted works were negotiated (at arms length) and drafted up today, it might include a reproduction right, but it surely wouldn't include a "reading" right. It might include a performance right but not a "listening" right; it might have a display right, but it wouldn't have a "viewing" right. From the public's vantage point, the fact that copyright owners are now in a position to claim exclusive "reading," "listening," and "viewing" rights is an accident of drafting: when Congress awarded authors an exclusive reproduction right, it did not mean what it may mean today.
The Draft Report's proposed resolution of the ambiguities introduced into the law by the passage of time and the invention of new media is not, from the public's point of view, an improvement. If you were the public's copyright lawyer, you would, in my view, be hard pressed to assure your client that the Draft Report's proposals for modest alterations were in fact a good deal.
The Draft Report argues that its proposed enhancement of copyright owner's rights is without question in the public interest, for it is a necessary first step in the creation of the information superhighway. This is the central justification for further enhancing the rights in the copyright bundle: without strong copyright protection, there will be no National Information Infrastructure. The public might believe that what it wants is unfettered access to copyrighted works in return for reasonable royalty payments to authors, but, if we let the public set the freight charges, we risk underproduction of freight. If authors and publishers cannot reliably control their works, they will decline to make them available at all. The Draft Report puts it this way:
The potential of the NII will not be realized if the information and entertainment products protectible by intellectual property laws are not protected effectively when disseminated via the NII. Owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems - both in the U.S. and internationally - are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment. Likewise, the public will not use the services available on the NII and generate the market necessary for its success unless access to a wide variety of works is provided under equitable and reasonable terms and conditions, and the integrity of those works is assured. All the computers, telephones, fax machines, scanners, cameras, keyboards, televisions, monitors, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful NII, if there is not content. What will drive the NII is the content moving through it.(65)If the public wishes an NII, the argument goes, it must offer strong copyright protection as a bribe to those whom it hopes to persuade to create enough stuff to make an NII worthwhile. Relying on a hope that if the public only builds the infrastructure, the information to travel it will come is said to be naive; of course the owners of protectible works will refuse to permit those works to be exploited unless their ownership rights are secure.
It appears to follow from that analysis that my thought experiment is ill-considered. We should not pursue the public's hypothetical interest in paying reasonable fees in return for unfettered access to copyrighted works because the deal cannot be struck on those terms. If the public stops promising authors "a reward in the form of control,"(66) we will soon run short of new copyrighted works to read, see, hear or download. Representatives of copyright owners have made this argument repeatedly in the context of the NII.(67) They couldn't be bluffing about that, could they?
Imagine for a moment that some upstart revolutionary proposed that we eliminate all intellectual property protection for fashion design. No longer could a designer secure federal copyright protection for the cut of a dress or the sleeve of a blouse. Unscrupulous mass-marketers could run off thousands of knock-off copies of any designer's evening ensemble, and flood the marketplace with cheap imitations of haute couture. In the short run, perhaps, clothing prices would come down as legitimate designers tried to meet the prices of their free-riding competitors. In the long run, though, as we know all too well, the diminution in the incentives for designing new fashions would take its toll. Designers would still wish to design, at least initially, but clothing manufacturers with no exclusive rights to rely on would be reluctant to make the investment involved in manufacturing those designs and distributing them to the public. The dynamic American fashion industry would wither, and its most talented designers would forsake clothing design for some more remunerative calling like litigation. And all of us would be forced either to wear last year's garments year in and year out, or to import our clothing from abroad.
Or, perhaps, imagine that Congress suddenly repealed federal intellectual property protection for food creations.(68) Recipes would become common property. Downscale restaurants could freely recreate the signature chocolate desserts of their upscale sisters. Uncle Ben's® would market Minute® Risotto (microwavable!); the Ladies' Home Journal® would reprint recipes it had stolen from Gourmet® Magazine. Great chefs would be unable to find book publishers willing to buy their cookbooks. Then, expensive gourmet restaurants would reduce their prices to meet the prices of the competition; soon they would either close or fire their chefs to cut costs; promising young cooks would either move to Europe or get a day job (perhaps the law) and cook only on weekends. Ultimately, we would all be stuck eating Uncle Ben's Minute Risotto® (eleven yummy flavors!!) for every meal.
But, I'm boring you, you tell me; you've heard all of this before. It's the same argument motion picture producers make about why we need to extend the duration of copyright protection another 20 years;(69) the same argument software publishers make about what will happen if we permit other software publishers to decompile and reverse-engineer their software products;(70) the same argument database proprietors make about the huge social cost of a failure to protect their rights in their data.(71) Perhaps the most important reason why we have intellectual property protection is our conclusion that incentives are required to spur the creation and dissemination of a sufficient number and variety of intellectual creations like films, software, databases, fashions and food.
Of course, we don't give copyright protection to fashions or food.(72) We never have.
The model suggesting that production and dissemination of valuable, protectible works is directly related to the degree of available intellectual property protection is much too simplistic.(73) In fact, history teaches us a more equivocal lesson. Whenever we have discovered or enacted a copyright exception, an industry has grown up within its shelter. Player piano rolls became ubiquitous after courts ruled that they did not infringe the copyright in the underlying musical composition;(74) phonograph records superseded both piano rolls and sheet music with the aid of the compulsory license for mechanical reproductions;(75) the jukebox industry arose to take advantage of the copyright exemption accorded to "the reproduction or rendition of a musical composition by or upon coin-operated machines."(76) Composers continued to write music, and found ways to exploit these new media for their works.
The videotape rental business swept the nation shielded from copyright liability by the first sale doctrine.(77) The motion picture industry predicted that if Congress failed to rush in to correct the problems posed by the invention and marketing of the videocassette recorder, American television would slowly be destroyed, and American motion picture production would sustain grave injury.(78) Howard Wayne Oliver, Executive Secretary of AFTRA (American Federation of Television and Radio Artists) told the House Subcommittee:
Unless we do something to ensure that the creators of the material are not exploited by the electronics revolution, that same revolution which will make it possible for almost every household to have an audio and video recorder will surely undermine, cripple, and eventually wash away the very industries on which it feeds and which provide employment for thousands of our citizens.(79)Notwithstanding all of the gloom and doom, however, both the motion picture and television industries discovered that the videocassette recorder generated new markets for prerecorded versions of their material.
Cable television began spreading across America with the aid of a copyright exemption;(80) it eclipsed broadcast television while sheltered by the cable compulsory license.(81) Yet, there is no dearth of television programming,(82) and the popular media image of the new information superhighway includes 500 television channels to accommodate it all.(83)
Even an erroneous assumption of copyright immunity can stimulate a nascent industry. The commercial photocopy shop prospered in part because of the university coursepack business made possible by a supposed fair use privilege.(84) Commercial and non-commercial subscriptions to services providing access to the Internet are increasing geometrically,(85) and much of the activity on the net takes place on the mistaken assumption that any material on the Internet is free from copyright unless expressly declared to be otherwise. Nonetheless, there are scores of electronic magazines and news services developed specifically for electronic distribution, and many commercial publishers are currently releasing their works over the Internet despite the absence of effective coercive means of protection.(86)
Of course, copyright owners would prefer to maximize their own control over the works they produce. Of course, if we ask them to come up with an optimal copyright law, they will draft one that meets that specification. If the general public had a lawyer to sit at the copyright negotiating table on its behalf, however, the law that emerged from the negotiating process might be a different one.
Neither the authors of the Draft Report nor the current stakeholders whose views the Report appears to endorse are oblivious of public opinion. They realize that some of their proposals would be controversial, indeed, even unpopular to some segments of the public, if the public were paying attention. The Draft Report suggests that one solution to this problem is education.(87) The Report acknowledges that the task might not be easy.(88)
We know quite a bit about the problems that inhere in educating the public about copyright law, because copyright owners have been expending huge sums of energy, time, and money with that goal in mind. The music performing rights societies have been trying to educate a recalcitrant public for the past eighty years, and the effort has hardly made a dent in the psyches of their customers or the people who patronize them.(89) Restaurateurs would not think of selling their patrons stolen food, or sitting them in stolen chairs, but they think nothing of selling them stolen music; many of those who buy performing rights licenses from ASCAP, BMI and SESAC say that they do so only because they are afraid of the copyright police.(90)
The performing rights situation is straightforward: if you run an establishment open to the public, you need to buy a license to perform music unless your performances fit into one of the exceptions; and licenses are sold relatively cheaply.(91) But, compliance is grudging at est.(92) People perceive the law to be grossly unfair,(93) partly because enforcement is incomplete and uneven; there's no guarantee that the business down the street is licensed, and who wants to b a chump?(94) Then there are all of the exceptions in section 110, which don't make any sense.(95) How come a bar with one 27" television doesn't need a license, while another bar with two 13" televisions does? Copyright lawyers might understand that the reason for this is that the words in section 110(5) say "single receiving apparatus of a kind commonly used in private homes,"(96) but there is nothing intuitively appealing about the distinction. Some prospective licensees fail to buy licenses because they believe the law could not possibly have been intended to apply to their situation; others find its complex provisions arbitrary and incomprehensible, and, therefore, unfair. And, every single year, despite the fact that the liability of unlicensed commercial establishments is well settled, people choose to litigate rather than pay up. And, of course, they lose. Their lawyers could have told them they would lose at the beginning, but they go through the painful and expensive litigation process anyway.
The moral of the story: some things are easier to teach than others. The current copyright statute has proved to be remarkably education-resistant. One part of the problem is that many people persist in believing that laws make sense. If someone claims that a law provides such and such, but such and such seems to make no sense, then perhaps that isn't really the law, or wasn't intended to be the way the law worked, or was the law at one time but not today, or is one of those laws, like the sodomy law, that it is okay to ignore. Our current copyright statute has more than merely a provision or two or three or ten that don't make a lot of sense; it's chock-full of them.(97) That is a direct result of the process we use to come up with our copyright laws. Whatever the strengths of the negotiated legislation approach to an area as complex as copyright, the statutes that result from the process are long, complex, and counterintuitive.(98)
The dynamics inherent in the negotiation process discourage brevity and intuitive appeal. Lawyers representing affected interests respond to the issues raised by new technology by ratifying all of the "accidents" that favor their clients and repudiating the "accidents" that work to their disadvantage. You know the drill: One does this by claiming that the first sort of accident is no accident at all, but part of Congress's grand design; while the second sort of accident is a completely unintended, unexpected "loophole." That is precisely the approach taken by he Draft Report, which treats the apparent expansiveness of the reproduction right as a design feature of the copyright law,(99) but presents the apparent leaks in the transmission right as accidental ambiguities that Congress should plug.(100) If interested parties disagree on which accidents are which, there is predictable negotiated solution. Negotiating stakeholders have always resolved differences through specificity and detail.(101) By the time we're done the new statute is even worse than the old one. Thus, the recent Audio Home Recording Act,(102) even in its streamlined "DART Lite" version,(103) is one of the longest and least comprehensible copyright enactments of all time. And while it is easy to claim that the interplay among all of the interests affected by copyright provides a proxy for the public interest, the statutes that interplay produces demonstrate that it isn't so.(104)
Our current copyright law is a descendent of the copyright laws in force at the turn of the century and before, which were designed to bring order to the interaction among affected industries. Because affected industries, and their lawyers, were invited to draft those rules themselves, the law became so technical, detailed, and counterintuitive that those industries now need to bring their copyright lawyers along to tell them how to play. If the law is intended to affect only the behavior of players with substantial economic stakes in copyright-affected matters, there is not much wrong with that degree of complexity. As soon, however, as the law is claimed to control the ordinary behavior of ordinary members of the public going about their ordinary daily business, then that species of law will no longer serve.
If we want ordinary people to look at unlicensed music, unlicensed software, and unlicensed digital reading material the same way they see stolen personal property, and to treat them accordingly, then we need to teach them the rules that govern intellectual property when we teach them the rules that govern other personal property, which is to say, in elementary school. That proposition should not be controversial; the Draft Report suggests that very thing.(105) The problem, though, is that our current copyright statute could not be taught in elementary school, because elementary school students couldn't understand it. Indeed, their teachers couldn't understand it. Copyright lawyers don't understand it.(106) If we are going to teach the copyright law to school children, then we need the law to be sensible, intuitive, and short enough that school children can hold its essential provisions in their heads. What we have now is not even close. We need, in other words, to abandon entirely the idea that we can make members of the public conduct their daily affairs under rules thought up by and for major players in copyright-affected industries. If the public is to play by copyright rules, then those rules must be designed with the public's interests in mind.
Imagine once again that the public has retained you as its copyright lawyer. Acting in your new role, you review the current statute, and the government's proposal for adjusting it, and you hat with your client about where to go from here:
You: "Look. I think the copyright concept is a good one, but I'm not happy with the details. There are a bunch of places where I think the language is unfortunate, and not in your long term best interest. Let me take it home and see if I can draft up a counterproposal that'll meet your needs, here."So, you have yourself a drafting project. Your job is to construct a copyright law that affords members of the public the opportunity to read, see, hear, and otherwise experience, download, buy, borrow and keep copies of all, or at least most, of the works that are out there, wile according ample compensation to the authors and publishers of copyrighted works, and encouraging them to produce and disseminate as many copyrighted works as they are able to. The law should be about three pages long, should strike more folks than not as ore fair than not, and should be sufficiently intuitive t appeal to school children. Let's say that you take about an hour, and come up with some language that meets spec.(107) Your client approves it. You take it over to Congress. Or maybe you take it over to the Patent and Trademark Office at the U.S. Commerce Department, home of the Information Infrastructure Task Force's Working Group on Intellectual Property Rights. O, maybe, you sign on to the Internet and post it for all to read. You have only one final problem: Congress isn't going to enact it.
Client: "Gee. That's great; that's what I hoped you'd say. But lookit. This time, when you're writing it up, could you make it real short? I don't read so fast, and this is real important to me. I want to understand what it says."
The only way that copyright laws get passed in this country is for all of the lawyers who represent the current stakeholders to get together and hash out all of the details among themselves.(108) In the past, this process has produced laws that are unworkable from the vantage point of people who were not among the negotiating parties,(109) and it won't generate any better results this time. The public needs to sit at the negotiating table and insist that any solution must seriously address its interests, as well as theirs.
What the public needs is a copyright lawyer of its own to represent it in the revision or replacement of the copyright law we now have, and the proposals for amending it that the National Information Infrastructure is inspiring. If you were unable to take the assignment yourself, where would you send your prospective client to find someone who would act as the copyright lawyer for the general public? Where would you send your prospective client to find someone who could do it well?
That is supposed to be Congress's job, of course. Congress is the public's copyright lawyer. The problem is that Congress is also the public's bankruptcy lawyer, and our trade lawyer, and our outer-space lawyer. Congress seems to lack the interest, expertise, and institutional memory to represent the public on this particular project; indeed, what Congress has done more often than not is delegate the job of coming up with legislation to interested private parties, which is how the statute got so long and convoluted in the first place.
But, Congress has a copyright lawyer of its own. That is the Copyright Office's job. The Copyright Office does have both the expertise and institutional memory; it has functioned as Congress's copyright lawyer and copyright expert for almost a century. The Office has, of course, some history of being "captured" by industry for most of the usual reasons (limited budgets, revolving doors, and the growing perception that copyright owners were in fact the Office's real constituency), but the public badly needs a copyright lawyer. The Copyright Office is in the very best position to perform that function. Besides, the Draft Report issued by the Working Group headquartered in the Patent and Trademark Office indicates that the Patent Office has already managed to assume much of the job of serving the interests of industry. This may be an unusually good moment for the Copyright Office to think very hard about redefining its role.
The Copyright Office's enormous expertise could enable it not only to persuade all of us (that is, both stakeholders and individual members of the public) that the public's interests are compatible rather than adverse to the interests of copyright owners, but also to make it so. What it would require, though, is a different sort of legislative proposal than the ones we have gotten used to seeing over the years. The Copyright Office has focused much of its recent attention on the threats that technology might unbalance the copyright bargain to the detriment of copyright owners, and has failed to attend to the danger that the bargain might unbalance to the detriment of the public. All it would take would be for the Office to view the public as its copyright client. And somebody certainly should.
The Working Group finds that prohibition of devices, products, components and services that defeat technological methods of preventing unauthorized use is in the public interest. Consumers of copyrighted works pay for the acts of infringers. The price of copyrighted works for legitimate users is higher due to infringement losses suffered by copyright owners. The public will also have access to more works via the NII if copyright owners can more effectively protect their works from infringement.IITF Green Paper, supra note 8, at 126. Devices that overcome technological copy-protection methods can have legitimate uses. See, e.g., Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988); Office of Technology Assessment, U.S. Congress, Copyright & Home Copying: Technology Challenges the Law 52-61 (1989) [hereinafter OTA, Copyright & Home Copying]. Copy protection devices can, after all, block access in situations when the copyright statute would privilege it. In addition, relying on technological copy protection can be self-defeating:
Therefore, the Working Group recommends that the Copyright Act be amended to prohibit the importation, manufacture and distribution of devices, as well as the provision of services, that defeat anti-copying systems.
I would argue that initial efforts to protect digital copyright by copy protection contributed to the current condition in which most otherwise ethical computer users seem morally untroubled by their possession of pirated software.Barlow, supra note 4, at 129. For these reasons, and others, requests to reinforce technological copy-protection tools with legal prohibitions have generated opposition from a variety of camps. Prior suggestions to outlaw such devices have therefore been narrowly drawn. See generally Audio Home Recording Act of 1991: Hearing Before the Subcomm. on Intellectual Property of the House Comm. on the Judiciary, H.R. 3204, 102d Cong., 2d Sess. (1992). Congress enacted one such prohibition in the Audio Home Recording Act of 1992 (codified at 17 U.S.C. §§ 1001-1010). The audio recording device prohibition was sufficiently controversial that, after the introduction of legislation in 1987, four years of negotiations among record companies, hardware manufacturers, songwriters, music publishers, and performing rights societies were required to reach agreement on the form and specifications of a limited prohibition. See H.R. Rep. 873, 102d Cong., 2d Sess., pt. 1, at 14-18 (1992); Gary S. Lutzker, Note, DAT's All Folks: Cahn v. Sony and the Audio Home Recording Act of 1991 - Merrie Melodies or Looney Tunes, 11 CARDOZO ARTS & ENT. L.J. 145 (1992). During the legislative process, the prohibition was narrowed and narrowed again to ensure that it would not be construed to apply to devices other than home audio recording devices. As enacted, it was balanced by a provision preventing the imposition of copyright liability for noncommercial copying of audio recordings, or for manufacturing, importing or selling audio recorders. See 17 U.S.C. § 1008 (Supp. V 1988). The Communications Act has a provision relating to the manufacture or distribution of descrambling equipment. See 47 U.S.C. § 605 (1988). It, too, is narrow in scope, and carefully distinguishes between legal and illegal uses. Broadly phrased prohibitions can interfere with legitimate behavior, and can hamstring technology in unanticipated ways. In presenting its finding that such devices should be prohibited across the board, the Working Group's Draft Report does not mention any countervailing concerns.
Instead of cultivating among the newly computerized a sense of respect for the work of their fellows, early reliance on copy protection led to the subliminal notion that cracking into a software package somehow "earned" one the right to use it. Limited not by conscience but by technical skill, many soon felt free to do whatever they could get away with.
The author receives the reward for making his or her original work of authorship accessible to all. Contrary to the common notion, the reward is not for the act of creation, but for distribution to provide public access: public learning comes not from the creation of a work, but from reading and studying it, a truism that copyright owners have apparently managed to hide from courts for many years.L. Ray Patterson, Copyright and "The Exclusive Right" of Authors, 1 J. Intellectual Prop. L. 1, 37 (1993).
The Copyright Act exists for the benefit of the public. To fulfill its constitutional purpose, the law should strive to make the information contained in protected works of authorship freely available to the public. "Freely available," of course, does not necessarily mean "available free." The Working Group does not believe that authors should be required to donate access time to their works on-line, but some reasonable approach must be adopted to ensure that the economically disadvantaged in this country are not further disadvantaged or disenfranchised by the information revolution.IITF Green Paper, supra note 8, at 133.
communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used n private homes, unless -17 U.S.C. § 110(5) (1988) The subsection expressly privileges the use of home-style televisions or radios (but not records, tapes or disks) in small commercial establishments. See, e.g., Robert A. Gorman and Jane C. Ginsburg, Copyright for the Nineties 46 (4th ed. 1993). No comparable provision exists for use of a boom-box in public, or the playing of automotive stereo equipment in a car with its windows rolled down.
(A) a direct charge is made to see or hear the transmission; or
(B) the transmission thus received is further transmitted to the public;
H. O'Dowd, Note: The Need for a Public Performance Right in Sound Recordings, 31 Harv. J. on Legis. 249 (1993); see also Barlow, supra note 4.
Current stakeholders are not responding to the perceived threat by recommending fundamental changes to the copyright law, with which they appear to be well satisfied; rather, they want to make sure that tomorrow's players will have to play by today's rules. See NII Hearing, supra note 3, at 14-23 (testimony of Steven J. Metalitz, Information Industry Council); id. at 31-40 (testimony of Stephen L. Haynes, West Publishing Company); id. at 40-50 (testimony of Lisa Freeman, Association of American University Presses); id. at 99-107 (testimony of Fritz Attaway, Motion Picture Association of America); id. at 130-41 (testimony of Benjamin F.P. Ivins, National Association of Broadcasters).
This fundamental right - to reproduce copyrighted works in copies and phonorecords - appears likely to be implicated in innumerable NII transactions. Indeed, because of the nature of computer-to-computer communications, it appears to be a right that will be implicated in most NII transactions. For example, when a computer user simply "browses" a document resident on another computer, the image on the user's screen exists - under contemporary technology - only by virtue of the copy that has been reproduced in the user's computer memory. It has long been clear under U.S. law that the placement of a work into a computer's memory amounts to a reproduction of that work (because the work may be, in the law's terms, "perceived, reproduced, or ... communicated ... with the aid of a machine or device").IITF Green Paper, supra note 8, at 35-37 (emphasis in original) (footnotes omitted).
In each of the instances set out below, one or more copies is made, and, necessarily, in the absence of a proof of fair use or other relevant defense, there is an infringement of the reproduction right:
- When a work is placed into a computer, whether on a disk, diskette, ROM, or other storage device or in RAM for more than a very brief period, a copy is made.
- When a printed work is "scanned" into a digital file, a copy - the digital file itself - is made.
- When other works - including photographs, motion pictures, or sound recordings - are digitized, copies are made.
- Whenever a digitized file is "uploaded" from a user's computer to a bulletin board system or other server, a copy is made.
- Whenever a digitized file is "downloaded" from a BBS or other server, a copy is made.
- When a file is transferred from one computer network user to another, multiple copies are made.
- Under current technology, when a user's computer is being used as a "dumb" terminal to "look at" a file resident on another computer (such as a BBS or Internet host), a copy of the portion viewed is made in the user's computer. (Without such copying into the A or buffer of the user's computer, no screen display would be possible.) As long as the amount viewed is more than de minimis, it is an infringement unless authorized or specifically exempt.
"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed ....17 U.S.C. § 101 (1988).
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration....
"Phonorecords" are material objects in which sounds ... are fixed by any method now known or later developed....
"The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords ...." 17 U.S.C. § 106(1)(1988).
Proponents of the view that RAM copies infringe copyrights argue that as long as the machine is on - and it can be on indefinitely - a copy of the copyrighted work stored there can be perceived or reproduced, thereby satisfying the "more than transitory duration" standard. (By this logic, holding a mirror up to a book would be infringement because the book's image could be perceived there for more than a transitory duration, i.e., however long one has the patience to hold the mirror.)Id.
If we aren't able to protect copyright in the new information environment, then the information that will be available, the useful information, the supply of that will be drastically be curtailed. [sic] Or just as troubling, it will be limited to the information that the government chooses to create or some other powerful institution chooses to create.It's worth noting that the Internet, which the Draft Report uses as its model for the NII, see IITF Green Paper, supra note 8, at 2 n.2, is experiencing no dearth of material. See infra text accompanying notes 83-84.
The laws regarding unlicensed reproduction of commercial software are clear and stern ... and rarely observed. Software piracy laws are so practically unenforcable and breaking them has become so socially acceptable that only a thin minority appears compelled, either by fear or by conscience, to obey them. When I give speeches on this subject, I always ask how many people in the audience can honestly claim to have no unauthorized software on their hard disk. I've never seen more than 10 percent of the hands go up.Barlow, supra note 4, at 88.
Whenever there is such profound divergence between law and social practice, it is not society that adapts. Against the swift tide of custom, the software publishers' current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law.
Someone asked me the other day why, if music stores could play music without a performing rights license, videotape stores couldn't play videotapes without a performing license, and why, if television stores were not allowed to play all of their television sets without a license, they did it all the time? Can you think of an answer to those questions that would sell in junior high school? I can't.