Panel II: The Digital Millenium Copyright
Act (DMCA) and Anticircumvention Technologies Moderator:
Shisha van Horn
Tyler
Ochoa,
From Betamax to the DMCA: Copyright Owners and
Device Control
The anti-circumvention provisions
of the DMCA, which offer copyright owners new rights separate from
and in addition to those provided within copyright law, was enacted
in October 1998, although some provisions were not put in force
until 2000. The first section adds new causes of action or limits on
what users can do with copyrighted materials, in addition to the
restrictions within copyright.
"Thou Shalt Not
Hack"
A key point is that Section 1201 represents a new restriction on users'
ability to access material in addition to early copy restrictions.
Not only does 1201 allow new electronic protections, it criminalizes
any attempt to circumvent those protections, even if the purpose is
a legal one. It also criminalizes the sale of devices to hack around
protections. A key paradox of the DMCA, said Ochoa, is that even
though it asserts fair use, it makes no provision for its
exercise.
The DMCA in Historical
Context
Ochoa’s thesis is that the DMCA is
the culmination of forty years of effort on the part of owners to
gain control of copies and represents a shift from copy-control to
access-control.
Ochoa proposed a circular history
of copyright control: from device control to copy control to access
control and back to device control. Arduous copying of a manuscript
by hand in the middle ages gave one the right to own it. It was not
until the printing press was invented that copyright was needed.
Still, the first reaction to the printing press was not copy
control, but device control. When the printing press arrived in
England, authorities demanded that only licensed publishers use the
device and that they acquire governmental approval of all
publications. Publishers thus had a monopoly, but eventually the
monopoly collapsed and publishers sought legislation in 1710 that
controlled the reproduction of copyrighted material thereafter.
While copyright gave many rights to authors/owners, it also made
those rights transferable to publishers.
Throughout its history, copyright
has focused on controlling the reproduction of copyrighted works,
not on controlling devices. Presses that infringed copyright (by
making paper copies) were relatively easy to police. But with
millions of individuals able to make perfect copies from home
computers and printers, it was no longer economical to prosecute
each infringer. Therefore owners have tried to prosecute
intermediaries, or creators of devices used to infringe.
During the 1960s, the creation of
commercial photocopiers was thought by many in publishing to be the
“end of academic publishing as we know it.” Publishers of academic
journals sued libraries that copied articles for their patrons.
While there was no decision in that lawsuit (the Supreme Court
decision was 4/4), the 1976 Copyright Act, Section 108, clearly defined what libraries could and
could not copy.
During the 1970s, the invention of
the first videocassette recorder, the Sony Betamax, signaled to many
“the end of the movie industry as we know it.” Film studios feared
for the future of theater distribution when audiences could stay
home watching their favorite films on a VCR. As it was impractical
to sue infringing home users the studios sued the manufacturer of
the device, Sony, for contributory infringement (knowingly creating
a device that people use to infringe). In its first fair use
decision, the Supreme Court voted 5 to 4 that home videotaping for
the purpose of time shifting was a fair use. The manufacturer was
not liable because the device was capable of “substantial
non-infringing uses.”
In the 1980s, digital audio
cassettes were the harbingers of the “end of music industry as we
know it.” Because analog copies degraded over time and digital
copies were perfect, music industry representatives were afraid that
no one would buy original recordings, but would instead purchase
pirated digital copies. Again, it was uneconomical to prosecute home
users, so the industry went after the intermediary, the manufacturer
of digital audiocassettes. However, instead of suing, they launched
a preemptive strike by passing legislation that forced manufacturers
to pay royalties for every cassette sold into a fund to be
distributed to copyright owners. The idea was to compensate owners
for all the infringing that would certainly go on. The digital
audiocassette bombed in the market place. Ochoa suggests that
perhaps the preemptive legislation served to dampen the market. By
contrast, after the Betamax was legitimized, the film industry
developed new business models and now some 50% of studio income
derives from VCRs.
Napster is the next big fight and
a part of the same phenomenon. The music industry has sought to
prosecute the intermediary, rather than the millions of
users/infringers. The court ruled that copyright owners had to
identify copyrighted works and then Napster had to block those
works. While the service was not shut down outright, so much of the
material was copyrighted that it has been severely limited and
Napster has been forced to create a new business model.
For Ochoa, the DMCA demonstrates
that while owners know it doesn't make economic sense to sue
individual infringers, they can go after intermediaries or creators
of devices that make copying possible. The DMCA is about device
control and access control, more than copy control. The
entertainment industry has moved away from business models based on
copy control, toward ones that are predicated on access control. The
ultimate business model in the new world of electronic media is a
pay-per-view model.
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Dan Wallach, Adventures in Copy Protection
Research. (See Wallach's slides)
Wallach, an Assistant Professor of
Computer Science at Rice University, was part of a team of
researchers from Rice, Princeton, and Xerox PARC, that took up the
HackSDMI Challenge in September 2000.
The Secure Digital Music
Initiative (SDMI), a coalition of 200 technology and content
companies, spearheaded by the RIAA (Recording Industry Association
of America), challenged “hackers” to break the code used to create a
watermark on four digital audio clips. The research team
successfully broke all four watermark codes and wrote an academic
paper on the subject that they planned to present at a conference.
SDMI issued a “cease and desist” letter. Both the academic paper and
the letter were leaked to Slashdot.org the week before the
conference at which the researchers were scheduled to present their
results. SDMI claimed that there was no threat to sue and there was
no court case. However, there was clearly a "chilling effect" on
computer security research (one of Wallach's professional
specialties). See the stories as reported in Slashdot; Salon; Wired (Aug 16, 2001). Also see Dr. Edward Felten's website about the
status of the SDMI paper.
Dan Wallach was primarily
concerned about the impact that the DMCA might have on computer
security research but a strong sub-theme of his talk was that
technical protection would never be enough to safeguard material.
The music and film industries were most concerned about piracy and
had invested heavily in technology to protect its materials from
online piracy. Although this copy-protection software lay at the
heart of the DMCA, Wallach asserted that such technology has never
worked and probably would never work effectively. The only good
technical model he'd come across was with digital satellite
broadcasters that re-program set-top boxes at unpredictable
intervals (but usually at peak viewing times), so that anyone who
had hacked a box and was getting free TV would likely lose the
connection at a key moment.
Wallach maintained that Internet
piracy was completely different from regular computer security,
where the machines are trusted but the potential users are not.
Today it's the machines themselves that are suspect. Creating
effective copy protection software, Wallach said, is virtually
impossible. He found the attempt to solve the problem through the
"big and ugly" DMCA very peculiar. The statute has civil and
criminal penalties; it validates copy protection research but it
makes it practically difficult to study a system and it is unclear
whether it actually allows publication of the research. In addition,
although it allows reverse engineering it does so under very narrow
and vague conditions. As owners cannot go after the end-users they
set their sights on the inventor of the anti-copy protection
software: the hacker.
Wallach emphasized that the only
effective protection against piracy would be new economic models,
such as subscription models, which would remove the incentive to
cheat.
Questions 1. Click-Through Licenses
A question about whether Wallach's
lawyer was concerned about the SDMI click-through license that was
part of the case led into the broader question of the legal
authority and enforceability of these click-through licenses. Rodney
Peterson replied that in the two states (Maryland and Virginia) that
had passed the UCITA, click-through licenses were enforceable, but
it was more questionable outside UCITA. Tyler Ochoa clarified that a
contract has to comprise an offer, consideration of the offer and
acceptance. The issue, he said, was whether the "consideration" was
meaningful in a click-through license. Also, even if such contracts
are considered acceptable, are they pre-empted by Federal contract
law? The cases are all over the map: courts are enforcing and not
enforcing - so you can't assume either way. Ochoa also stated that
in reality no-one reads such contracts; they are what are called
"adhesion contracts", contracts that are heavily weighted in favor
of one party, a "take-it-or-leave-it" undertaking. They are not
inherently unenforceable, but are if the terms are simply
unconscionable and you don't have the realistic opportunity for
choice.
2. Public
versus Private Access
A questioner asked if publishers
made a distinction between public and private access. Rodney
Peterson replied that private systems, such as Blackboard and WebCT,
which would be important under the TEACH Act or with e-reserve
systems, do have the added layer of password protection for
individual or class use. This is important because, to allow
distance education to thrive online there must be a method for
distinguishing between allowed classroom use of material and other
uses.
3. Distance
Education is Fair Trade in Public Knowledge
A participant asked whether by
putting its course material online, MIT was implying that other
schools' courses should also be freely available.
Georgia Harper clarified that by
mounting material on the Web, MIT was not necessarily putting it
into the public domain, although in this case MIT stated that the
material is available for re-use. But this had no implications for
other schools' material. There is a big distinction, though, between
material that is published and is still protected by copyright and
publishing a patentable business or teaching method. By publishing
patentable or trade-secret material one had, in the U.S., one year
to protect it. But for all intents and purposes it would be gone:
patent and copyright law here are quite different.
Tyler Ochoa reiterated the
idea:expression dichotomy. Ideas are not copyrightable and as soon
as a work is published the idea enters the public domain. However,
the unique expression of an idea is protected for a certain period
under copyright. Tyler concluded by stating that, as a rule of
thumb, if you really do not want anybody to copy any material you
have, do not put it online because you will have lost all practical,
if not legal, control.
As a footnote, MIT's OpenCourseWare (OCW) initiative is designed to make core teaching
materials from virtually all of its courses freely available on the
World Wide Web for non-commercial use. However, as MIT itself
stresses, it is essentially the relationship between teacher and
student that is at the heart of education -- the materials only go
so far.
4. Napster,
Liability and University Contracts
Answering a question on how
important the intent to infringe was in liability cases, Tyler Ochoa
clarified the basic issues. Intent is not in itself a factor in
liability if you infringe copyright. To be guilty of contributory
infringement a party had to know that what they were doing was
enabling infringement. Thus in the Napster case, Napster had to
demonstrate knowledge of illegal copying of specific files, which it
denied: it simply set up the mechanism for peer-to-peer file
sharing. However an employer, such as a university, can be liable
for infringement, even if the employer has no knowledge of the
infringement.
How do you police that? Georgia
Harper replied that universities do not police infringement.
However, universities do have the responsibility to educate their
communities about the law and the Internet, and to take material
down in case of an accusation of infringement to which there is no
defense. The University of Texas also includes an indemnification
clause in contracts with employees who are creating online content
to ensure they understand their responsibilities and
liabilities.
Was this part of a regular
academic contract or was it a separate contract? Harper replied that
Texas policy allocates broad ownership by faculty of faculty
product, but it calls for a separate contract, which itemizes many
details of ownership, when a faculty member requests significant
funding for an online project.
5. Permission for Manipulating Content
To a question of whether
permission is required for manipulating the content of a copyrighted
work to create an invitation, Tyler Ochoa replied that yes, any such
derivative work would require permission. Anytime you do anything
commercial, fair use is very limited.
6. Permission for
Satirical Use
To a question on the need for
asking permission to use material for satirical puposes, Ochoa
replied that the Supreme Court had suggested a line between parody,
which targets a work, and satire, which uses a work to target
something else. Satire receives less protection than parody. He
referred all those interested in this issue to his article, "Dr.
Seuss, The Juice and Fair Use: How the Grinch Silenced a Parody," 45
J. Copyright Society of USA 546 (1998). Also see Ochoa's
response to a similar question on the CNI-Copyright listserv (Feb 9,
1999).
7. DMCA, Copyright Law and Imminent
Change
One questioner sought
clarification on the relationship of the DMCA to Copyright Law and
further asked what the likelihood of significant change in copyright
law might be in the foreseeable future.
Ochoa replied that the DMCA is a
statute that provides rights in addition to copyright law. The DMCA,
said Ochoa, was more akin to what Peter Jaszi has called
"para-copyright" or neighboring rights that are in addition to
copyright. He added that he thought the chances were very slim of
any major changes in the law in the next decade. There will
certainly be further copyright legislation but it will take many
years to shake out the many problems accruing around the DMCA in
particular and digital copyright in general. To give an example of
how long such change can take, Ochoa cited linking problems that
first surfaced in 1996 but for which there are still no published
legal opinions because no well-funded opponents have wanted to take
the issue to court. He also pointed out that the Betamax case took
six years to settle. Ochoa did draw attention to the Eldred v.
Ashcroft case that held that the Copyright Term Extension Case was
unconstitutional. [This case will be heard by the Supreme Court: see
the Open Law site for updates.]
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Panel III:
Copyright: Community Concerns
Moderator: Maryhelen Jones
Geraldine Aramanda, Museums and Archives and the
Management of Intellectual Property
Geraldine Aramanda addressed the
complexity of administering intellectual property rights within a
museum. She pointed out that, more often than not, museums do not
hold the copyright to objects in their collections. Until copyright
expires or is transferred, museums themselves must obtain copyright
clearance before reproducing objects in their collections for
catalogs and other merchandise. The
Menil Collection is committed to making the collection as
accessible as possible and reproduces items in its collection for
patrons who request them, charging appropriate commercial or
nonprofit fees, and often waiving them altogether for authors,
poets, scholars and others, whose means were limited.
Aramanda emphasized, however, that
every IP transaction has unique considerations, which makes IP
Management very complex and more like detective work than museum
administration. Requests for images came from many unexpected
sources: the sciences are as likely as the arts to request
permission to reproduce work. She had several stories to tell about
unusual requests (such as the San Francisco Museum of Modern Art
requesting permission for using a reproduction of a Magritte image
including a green apple to sticker 65,000 Granny Smith apples to
advertise its Magritte show) and of tracking down unauthorized
reproductions, including one that had inverted an artist's
work.
Rhoda Goldberg, Copyright: An Indispensable Element
in Fulfilling the Mission of the Library
Goldberg declared that, for her,
copyright is at the heart of the library’s mission, notably
copyright's provisions for the public interest. Indeed, she said
“it’s all about access.” In the past in libraries, patrons had
access to books, microfiche or film and a reserve room. Today,
electronic media, such as e-books, electronic inter-library loan and
electronic reserves enable libraries to give patrons even more of
what they’re looking for more quickly than ever.
Despite changes in technology, the
mission of libraries – to provide information to the public – has
not changed. Public libraries have a role as bridges across the
digital divide, leveling the playing field between the haves and
have-nots. Technology has made it possible to expand the mission, to
bring information to everyone.
An effective instrument for this
expansion in Texas is Texshare. Founded
in the 1990s, Texshare is a resource-sharing consortium that enables
delivery of documents between public and academic libraries. It
includes a statewide courier service and a Texshare card system that
allows users to access the collections of several libraries in the
consortium. A Tex Treasures program enables special collections
materials to be digitized and networked. The Texas Education
Infrastructure Fund also helps by funding Internet connectivity for
libraries, museums and schools. The E-rate program also has helped
schools and libraries to connect to the Internet.
Goldberg declared that another
central library mission is to archive information and make available
material that is not so popular. This is especially important in the
digital age. The effectiveness of libraries hinges on their ability
to borrow and lend information in both print and electronic forms.
The benefits of the new technologies will be cancelled out if fair
use and copyright become doctrines that limit, rather than promote,
access to knowledge. She ended by asking us to pay attention to
database protection bills and to UCITA and to advocate for their
defeat.
Marshall Schott, Instruction
Schott heads the Distance Learning
Program at the University of Houston. His experience deploying
instructional technology has raised many intellectual property
issues, especially when faculty are involved in course development.
When using instructional television there is no practical
justification for the fair use of material when the general public
has access to the programs. However, with the use of online
instruction, often with password protection of sites, fair use is
possible but brings with it many problems.
As elsewhere the issue of faculty
onwership of material has come up and Schott has been involved in an
initiative to clarify policy and assist faculty in developing
courseware and to guarantee that content of online courses will
belong to faculty. However, faculty need also to be aware of the
investment by the university in developing online courses and
institutions need to assess their own policies in an effort to
develop effective and fair policies.
The University of Houston has
allocated resources toward faculty development and education in
copyright and fair use issues, especially in response to faculty
members' need to know what they can use in an electronic context.
The university offers seminars and workshops for faculty and help
faculty negotiate for permission to use copyrighted
materials.
Questions
1. Professional Development in Copyright
& Fair Use
An audience member asked Schott
how the university has managed to offer professional development,
especially for adjunct faculty. Schott acknowledged how difficult it
is to communicate with adjunct faculty. The university sponsors
workshops that are listed in the employee handbook distributed to
all faculty members. The handbook also includes information on
copyright and fair use, which will shortly appear online. In future,
the university will provide a website with copyright and fair use
information on a website. Maryhelen Jones, also of the University of
Houston, added that instructional designers work with individual
faculty members to suggest ways to add library components that will
educate faculty about intellectual property issues. It is often the
instructional designer that faculty ask for help in navigating
copyright problems.
2.
Costs
To a question about the costs
built into course creation, Schott answered that there are vast
differences across the fields. Some courses are virtually cost-free
and others costs several thousands of dollars. Decisions are made on
an ad hoc basis. Television courses cost about $10,000-$12,000 per
course. online courses take more time to create and costs range from
$5-6,000 up to $15,000 per course.
3. Linking Policy
To a question whether there was
any policy on links to other sites in distance learning courses,
Schott replied there was no formal policy as yet.
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Panel IV:
Point/Counterpoint: Approaches to Copyright Moderator: Geneva Henry
Ross Reedstrom, Copyright and the Free Software
Community
Reedstrom said he was opening a
new direction in the meeting by focusing on what he called the
"culture of the Internet" -- that is, the culture that he felt is
most indigenous to the Internet, the culture of those who built it.
"Free software" he defined as software developed by a community of
enthusiasts for their own and others’ use. Enthusiasts do not have
financial reward as a goal; their activity generally lies outside
the commercial realm. The free software movement produces tools and
software to solve problems; it is not about content.
Reedstrom declared that the
Internet itself is an artifact of the free software movement. The
Internet Engineering Task Force (IETF) sets the
standards for running the Internet. It is, in its own words, an
"open international community of network designers, operators,
vendors, and researchers concerned with the evolution of the
Internet architecture and the smooth operation of the Internet. It
is open to any interested individual." It runs by sending out
requests for comments that lead to "rough consensus and working
code."
As commercial companies became
increasingly involved in shaping the Internet, MIT's Richard
Stallman became concerned that the culture was being changed (for
example, ATT had changed the licensing terms for the UNIX operating
system on which the Internet had been built) and developed the
GNU project "to
develop a complete Unix-like operating system" that is free
software.
Free software, for Stallman, had
to possess the "Four Freedoms":
0. The freedom to run the program,
for any purpose;
1. The freedom to study how the program works,
and adapt it to your needs;
2. The freedom to redistribute copies
so you can help your neighbor;
3. The freedom to improve the
program, and release your improvements to the public, so that the
whole community benefits.
As others signed on, Eric Raymond,
one of the first GNU contributors, began studying the culture at
large and published The Cathedral & The Bazaar: Musings on
Linux and Open Source by an Accidental Revolutionary. For Raymond, the hacker culture was a
“gift culture” in which prestige is built up by giving away as much
as possible. Credit for building and distributing software is also
important. For Reedstrom, the free software movement is much like an
idealized version of academia: "a culture of open communication,
built on one anothers ideas, with credit given to original
work."
Some examples of free software
include: Linux, X (the graphic environment developed for the UNIX
workstation), Apache (a very popular web server), sendmail (the
original email server); PostgreSQL;
Magicpoint; and
GIMP (the GNU Image
Manipulation Program).
Licenses are not the same in the
free software world. Rather than restricting, they are designed to
expand users' rights. A principal license is the General Public License, or GPL. The GPL allows users to copy licensed software and
make changes, then to license their changes. All these licenses give
away more than they restrict. Although it doesn't mention it by
name, the GPL enshrines the "copyleft" notion that if you receive
GPL software you can change it and use it to produce something else,
but if you distribute the revised or new program you are constrained
to license it under the GPL. The GPL has never been tested in court.
While there probably is some cheating going on, the movement has
found that it can survive free riders -- even as today there are
more users than programmers.
The OSI or Open Source Initiative created its own Open Source Definition that reveals some of the practical
freedoms of free software: copying is okay; users fix bugs; and
there is no pressure to upgrade. By contrast, proprietary formats
force users to upgrade and they forbid reverse engineering through
their click-through licenses. With free software, open standards
encourage the creation of new content and tools.
Reedstrom declared that the free
software and open source community defended traditional notions of
copyright by using the general framework of copyright and reminding
the larger user community that there are values other than economic
ones. See the following sites for more information on the Open
Source Movement:
www.fsf.org
www.eff.org
www.tuxedo.org
www.cpsr.org
Coe Miles, Licensing and the Public Domain (SeePDF of Coe Miles'
presentation)
Miles was the Associate General
Counsel of Questia, a commercial online collection of some 70,000 books and
journal articles in the humanities and social sciences. He began by
explaining to the audience Questia’s mission and business model (see
Carol Hughes' talk on Questia at the Chicago Town Meeting,
2001). He explained the methods Questia uses to gain permission to
reproduce books in its online library, as well as the stumbling
blocks to getting cooperation from copyright owners.
He opened a discussion on the
public domain by referencing the recent milestone events that served
to limit the availability of works in the public domain (see his
presentation slides). These include, most famously, the 1998
Sonny Bono Copyright Extension Act (extending copyright term to life
of the author plus 70 years) as well as the Uruguay Round Agreements
Act (URAA) restoring copyright protection to foreign works that had
fallen out of copyright. [See the January 2000 Chicago Copyright Town Meeting
on the Public Domain for
further information and discussion.]
Miles cited the variety of types
of contracts, including assignments whereby the author assigns all
rights to a publisher, and licenses whereby the right to publish is
given to the publisher. Under both of these contract types, there is
an opportunity for authors to reclaim their rights when their work
goes out of print, although the author must request the rights be
returned. Generally, if a work is still in print, permission should
be sought from the publisher for permission to copy. If the work is
out of print, permission should be sought from the
author.
Miles spoke about the difficulty
of determining the public domain status of any work (Lolly Gasaway's
chart "When Works Pass Into the Public
Domain, is most often
cited as the starting point for such determination), especially
whether foreign works had had their copyright restored under the
URAA.
Questia’s approach to restoration
is to perform all possible research into the status of works. Its
staff looks for copyright office records such as renewal notices and
searches global Books-in-Print references. If Questia mistakenly
classifies material in the public domain, and it’s still under
copyright, its customer logs will enable repayment of any owed fees.
Questia acquires licenses from publishers whenever possible.
Lee Hilyer, “In this case, it’s better to get
permission . . .”
Hilyer, the Interlibrary Loan
Librarian at Rice University’s Fondren Library, offered a practical
"this is what we do" as a counter to much of the theory of the day.
He explained how the Library deals with the practical considerations
of providing copies of copyrighted materials to patrons. Fondren
pays the Copyright Clearance Center for copies it has made for patrons in what
he called "excess of fair use". The “one-one five-five” rule or
"Guideline of Five," developed under CONTU (the National Commission on New Technological Uses of
Copyright Works) governs the numbers of free copies made. The
"Guideline of Five," suggests that in one calendar year a borrowing
library may receive or copy five articles from one journal title for
articles published within the previous five years.
In many universities and
libraries, Hilyer said, the interlibrary loan department has become
the default authority on copyright clearance. The library uses the
CCC’s Transactional Reporting Service to pay a copyright royalty and
a small processing fee for all copies it makes "in excess of fair
use". The CCC's Academic Permissions Service facilitates the
creation of coursepacks and handouts; its Electronic Course Contents
srvice facilitates electronic reserves; and its Media Image Resource
Alliance allows licensing of stock photographs for
re-publication.
If a source is not contained in
the CCC, Hilyer must find the rightsholder through other means. He
begins by looking for the author, using databases such as the
MLA International Bibliography that contain author contact
information. He also uses a variety of other directories, Who’s
Who reference tools or the Google search engine.
Above all, Hillyer, stressed, it
is access that is key: getting access to the material for those who
need it. Alternatives to licensing material include placing items on
reserve, purchasing reprints from the publisher, and purchasing back
issues from publishers. Hillyer's final word of wisdom was that "if
you can't clear for copyright on material for the purpose for which
you need it there's often a way to get access to it for the people
who need it."
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Open
Forum
David Green offered a synthesis of
the day’s events and opened the floor for discussion.
He declared that the audience had
heard: