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«Hal Abelson Ken Ledeen Harry Lewis Upper Saddle River, NJ • Boston • Indianapolis • San Francisco New York • Toronto • Montreal • London ...»

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Imagine that the 1984 Supreme Court ruling in the Sony case had gone the other way, and the Court had declared Sony liable for copyright infringement for selling VCRs. Would VCRs have disappeared? Almost certainly not— consumers wanted them. More likely, the electronics industry would have cut a deal with the motion picture industry, giving them control over the capabilities of VCRs. VCRs would have become highly regulated machines, regulated to meet the demands of the motion picture industry. All new VCR features would need to be approved, and any feature the MPAA didn’t like would be kept off the market. The capabilities of the VCR would be under the control of the content industry.

That’s the kind of world we are living in today when it comes to digital media. If a company manufactures a product that processes digital information, it needs to be concerned about copyright infringement, even without the DMCA. This is a big concern, especially after Grokster. But suppose the device could not be used for copyright infringement. Even then, if the digital information is restricted by DRM, the product must abide by the terms of the DRM restrictions. Otherwise, that would be circumvention, so the product couldn’t be legally manufactured at all. The terms of the DRM restrictions

CHAPTER BALANCE TOPPLED

are completely at the whim of the content provider. Once Fortress Publishers installs DRM, they get to dictate the behavior of any device that accesses their material.

In the case of DVDs, DVD content is encrypted with an algorithm called the Content Scrambling System (CSS), developed by Matsushita and Toshiba and first introduced in 1996. As mentioned in Chapter 5, that algorithm was quickly broken—a textbook violation of Kerckhoffs’s Principle—and underground decryption programs are today readily found on the Internet. The censored six lines of text earlier in this chapter is one such program.

Although CSS is useless for realistic copy protection, it is invaluable as an enabler of anti-competitive technology regulation. Any company marketing a product that decrypts DVDs needs a license from the DVD Copy Control Association (DVD CCA), an organization formed in 1999. The license conditions are determined by whatever the CCA decides. For example, all DVD players must obey “region coding,” which limits them to playing DVDs made for one part of the world only, and an individual player’s region can be changed no more than five times. Region coding has nothing to do with copyright. It is there to support a motion picture industry marketing strategy of releasing movies in different parts of the world at different times. The varied license restrictions include some that companies are not even permitted to see until after they have signed the license.

The Face of Technology Lock-in Suppose you are a company with an idea for an innovative DVD product.

Maybe it is a home entertainment system that lets people copy and store DVDs for later watching, and you have worked out a way to do this without encouraging copyright infringement. This is an actual product. Kaleidescape, the California start-up that makes it, was sued by the DVD CCA in 2004 for violating a provision of the CSS license that forces DVD players to be designed to work only when there is a physical disk present. In March 2007, a California court ruled in Kaleidescape’s favor, on the grounds that the license wasn’t clear enough, but the case is being appealed. In any case, the CCA can change the license at any time. The legal wrangling has kept the company under a cloud for three years. Another start-up working on a similar product at the same time folded when it failed to get venture funding, “in part due to the threat of legal action from the DVD CCA.” The DVD technology lock-in has been in place since 2000. A similar lockin is being implemented for high-definition cable TV. A campaign to extend the lock-in to all consumer media technology is being promoted in Washington as the broadcast flag initiative. And more trial balloons keep 218 BLOWN TO BITS being floated in the name of protecting copyright. A bill was introduced in Congress to ban home recording of satellite radio. NBC urged the Federal Communications Commission to force Internet service providers to filter all Internet traffic for copyright infringement (that is, to compel ISPs to check packets as they are passed around the Internet and to discard packets deemed to contain unauthorized material). In 2002, Congress considered a breathtakingly broad prohibition against any communications device that does not implement copyright control—a bill that had to be redrafted after it became apparent that the first draft would have banned heart pacemakers and hearing aids.

So, in the United States today, a technology company is free to invent a new garage-door opener without needing its design approved by the garagedoor makers. It can manufacture cheaper replacement toner cartridges without approval from the printer companies. It cannot, however, create new software applications that manipulate video from Hollywood movie DVDs without permission from the DVD CCA. It cannot in principle create any new product or service around DRM-restricted digital content without getting permission, often from the very people who might regard that new product as a competitive threat.

This is the regulatory posture at the present juncture in the copyright wars.





People can debate the merits of this position. Some say that the DMCA is necessary. Others claim that it has been largely ineffective in curtailing infringement, as the continuing calls for ever more severe copyright penalties demonstrate.

The anti-circumvention But whatever its merits, the anti-circumapproach is poisonous to vention approach is poisonous to the innothe innovation that drives vation that drives the digital age. It the digital age. hobbles the rapid deployment of new products and services that interoperate with existing infrastructure. The uncertain legal risks drive away the venture capital needed to bring innovations to market.

In essence, the DMCA has enlisted the force of criminal law in the service of the lock-in shenanigans invited Public Knowledge (publicknowledge. by DRM. It has introduced antiorg) is a Washington DC public- competitive regulation under the interest group that focuses on policy guise of copyright protection. By issues concerning digital information. outlawing technology for circumSee their “issues” and “policy” blogs venting DRM, the law has, in the to stay current on the latest happen- words of one critic, become a tool ings in Washington. for “circumventing competition.”

CHAPTER BALANCE TOPPLED

Copyright Koyaanisqatsi: Life Out of Balance 1982 marked the release of an astonishing film called Koyaanisqatsi. The title is a Hopi Indian word meaning “life out of balance.” The film, which has no dialogue or narration, barrages viewers with images at once hauntingly beautiful and deeply disturbing, images that juxtapose the world of nature with the world of cities. The relentless message is that technology is destroying our ability to live harmonious, balanced lives.

In the first decade of the twenty-first century, we inhabit a world of copyright koyaanisqatsi. Virtually every salvo in the copyright war, Congressional bill introduced, lawsuit filed, court ruling issued, or advocacy piece trumpeted, pays homage to the “traditional balance of copyright” and the need to preserve it. The truth is that the balance is gone, toppled in the digital explosion, which is likewise shattering the framework for any civil consensus over the disposition of information. The balance is gone for good reason.

Copyright (at least in the United States) is supposedly a deal the government strikes between the creator of a work and the public. The creator gets limited monopoly control over the work, for limited times, which provides the opportunity to benefit commercially. The public gets the benefit of having the work, and also gets to use it without restriction after the monopoly has expired. The parameters of the deal have evolved over the years, generally in the direction of a stronger monopoly. Under the first U.S. copyright law, enacted in 1790, copyright lasted a maximum of 28 years. Today, it lasts until 70 years after the author’s death. In principle, however, it’s still a deal.

It is an enormously complex deal, and it is easy see why. Today’s copyright law is the outcome of 200 years of wrangling, negotiating, and compromising. The first copyright statute was printed in its entirety in two newspaper columns of the Columbian Centinel, shown in Figure 6.3. As the enlarged text insert shows, the law

DIGITAL COPYRIGHT

covered only maps, charts, and books, and granted exclusive rights Digital Copyright by Jessica Litman to “print, reprint, publish, or vend.” (Prometheus Books, 2001) recounts The period of copyright was 14 the evolution of U.S. copyright law years (with a 14-year renewal). as a series of negotiated comproToday’s statute runs to more than mises. The Citizen Media Law Project 200 pages. It’s a Byzantine stew (www.citmedialaw.org) offers usepeppered with exceptions, qualifi- ful information to online publishcations, and arcane provisions. You ers—not just about copyright, but can’t make a public performance of other legal matters as well.

a musical work unless you’re an 220 BLOWN TO BITS agricultural society at an agricultural fair. You can’t freely copy written works, but you can if you’re an association for the blind and you’re making an edition of the work in Braille (but not if the work is a standardized test).

A radio station can’t broadcast a recording without a license from the music publisher, but it doesn’t need a license from the record company—but that’s only if it’s an analog broadcast. For digital satellite radio, you need licenses from both (but there are exceptions).

Harvard University Library.

FIGURE 6.3 The first U.

S. copyright law—“An Act for the Encouragement of Learning.” It was printed as the first two columns of the July 17, 1790 edition of the Columbian Centinel. Note George Washington’s signature on the bill at the bottom of the second column.

It is a law written for specialists, not for ordinary people. Even ordinary lawyers have trouble interpreting it. But that never mattered, because the copyright deal never was about ordinary people. The so-called “copyright balance” was largely a balancing act among competing business interests. The

CHAPTER BALANCE TOPPLED

evolution of copyright law has been a story of the relevant players sitting down at the table and working things out, with Congress generally following suit. Ordinary people were not involved, because ordinary people had no real ability to publish, and they had nothing to bring to the table.

Late to the Table The digital explosion has changed all that by making it easy for anyone to copy and distribute information on a world-wide scale. We can all be publishers now. The public is now a party to the copyright deal—but the game has been going on for 200 years, and the hands were dealt long ago.

When people come to the table with their new publishing power, expecting to take full advantage of information technology, they find that there are possibilities that seem attractive, easy, and natural, but for which the public’s rights have already been “balanced” away. Among the lost opportunities are copying a DVD to a portable player, making the video clip equivalent of an audio mixtape, placing a favorite cartoon or a favorite song on a Facebook page, or adding your own creative input to a work of art you love and sharing that with the world.

People resent it when acts like these are denounced as theft and piracy. As a contributor to a computer bulletin board quipped, “My first-grade teacher told me I should share, and now they’re telling me it’s illegal.”

CAN YOU COPY MUSIC CDS YOUR COMPUTER?

TO Of course, you can easily copy CDs to your computer hard drive: There are dozens of software packages designed to do just that, and millions of people do it regularly. Yet the legal issues in CD copying are both murky and confusing—a striking example of the mismatch of copyright law and public understanding.



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