Digital Copyright : Protecting Intellectual Property on the Internet
by Jessica Litman. Amherst: Prometheus Books, 2001. 208p. $25 (ISBN 1-573-92889-5)
If you're like most of us, you have some idea of what the Digital Millennium Copyright Act (DMCA) is about but feel you should know more. And if you're like most of us, you're not about to read a whole book on the topic in order to gain (or attempt to gain) more understanding of the topic.
Jessica Litman offers us an informative, intelligent, and even amusing way to further our knowledge of the DMCA and other copyright issues through her book Digital Copyright. To begin with, this is not a law book, although it is about law. Digital Copyright is instead a social history of copyright law. It is not about the law per se but about how the technology developments of the twentieth century changed how copyright law is crafted in the United States and who reaps the benefits.
Although few of us will ever read the thirty thousand words of the DMCA (and we probably wouldn't learn much from it if we did), Litman's book provides the reader with a clear picture of why the DMCA matters by presenting a picture of how this law evolved, who it favors, and why it is generally bad for the rest of us.
Litman begins chapter 3 with the sentence: "If history bores you, you should skip this chapter." Don't. This is the most important chapter in the book. It explains how our copyright law went from being a piece of legislation (like other laws) to its current state as a negotiated compromise between major commercial stakeholders. It began early in the twentieth century when the legislature and the U.S. Copyright Office decided that although the copyright law clearly needed updating, the issues were too complex for the legislators to understand. The U.S. Copyright Office therefore drafted the proposed legislation in a series of meetings with representative members of industries with an interest in copyright issues. This technique led to a revision of the U.S. Copyright Act in 1909 and has been the method of revising copyright law ever since.
Admittedly, it does make some sense that stakeholders would be included in the making of laws that affect them and their business, and presumably this is not uncommon in our law-making today. (That's what lobbyists are all about, after all.) The consequences of having the stakeholders dominate the process, however, are quite negative for all who were not part of the discussion. Not included in the process are representatives of future or emerging technologies, minority and noncommercial interests and, of course, members of the public.
Each iteration of copyright law in the twentieth century addresses particular technologies and their commercial interests. The 1909 copyright law mainly addressed issues relating to composers and music publishers. Not included in that process were members of the piano roll and "talking machine" (phonograph) industries, whose representatives were not present at the discussions. The law made the unlicensed manufacture of piano rolls and phonograph records illegal. The 1912 law addressed the right of movie companies to make motion pictures based on books, arising from a lawsuit over a movie version of Ben Hur. Movie companies participated to negotiate a law that limited their exposure in copyright infringement actions. But of course radio was not included.
Technology progressed and copyright discussions continued. From 1912 to 1976, numerous attempts were made to pass a law that would cover all of the new technologies: commercial radio, talking movies, commercial television. Negotiations fell apart before bills could be drafted or during the actual legislative process when new stakeholders got wind of the changes afoot and complained to their representatives. It was a chaotic tug-of-war of competing interests, each with their specific needs. Some of these needs introduced new concepts into copyright law: where once there had been one single copyright for a work, new technologies allowed copyright holders to license diverse uses for the same work, such as a music recording, radio play, and use in a film.
The 1976 copyright law, which was a major revision, was the result of decades of committee meetings, negotiations, drafting, and compromises. The final steps to this law began with a six-year study and five years of conferences that produced bill text. Another eleven years passed as Congress and the "interested parties" met to compromise on specific issues and add new language to the bill. The resulting law was a pre-agreed upon statement of copyright that satisfied those who had participated in its making.
This doesn't mean that everyone was covered. "Just as there had been no commercial broadcaster to invite to the conferences in 1905, there were no videocassette manufacturers, direct satellite broadcasters, digital audio technicians, personal computer users, motion picture colorizers, online database subscribers, or Internet service providers to invite in 1960" (51). It took decades of work to craft the law and it was out of date before Congress voted on it.
Even more important, however, was the nature of the law that came out of such a process. Copyright law that is crafted in this manner tends to address very specific industries, technologies, and situations. These specific legal points do not lend themselves to application to situations that weren't included in the negotiations; they don't generalize well. As an example, application of the 1976 copyright law to computer technologies has led to some very unfortunate court rulings, at least some of which were used to bolster the early process that resulted in the DMCA. One of these rulings stated that every use of a computer file, such as turning on the computer and launching the operating system or opening a document to read it on the screen, made a copy of the software or file and therefore was potentially an infringement of copyright. In the story of the DMCA, it just goes downhill from there.
Most of the book, and decidedly the most engaging part of it, revolves around the development of the law that became the Digital Millennium Copyright Act and its aftermath. Litman introduces the Internet into the copyright picture and prefaces the remaining two-thirds of her book with a pithy one-line wrap-up of the process that led to the DMCA's implementation: "What happened next was a failure of imagination" (89). The members of the Clinton administration charged with looking into the potential effects of the Internet on copyright, along with the usual bevy of industry representatives, showed so little understanding of the new technology that it would have been amusing if it hadn't led to such a tragically mistaken law.
As we know now, the recent changes to the copyright law have greatly enhanced the rights of copyright holders and have consequently greatly reduced the rights of the reading public. The justification for this shoring up of the law was good old American patriotism: according to the Working Group on Intellectual Property, chaired by the Clinton administration Patent Commissioner Bruce Lehman from 1994 to 1996, nothing short of the entire future of the American economy was at stake. New protections for copyright in the networked economy were needed to protect American profitability in that environment. There would be no investment in the National Information Infrastructure and no content to sell both at home and abroad if adequate protection was not provided.
For those of us who were actively working on the Internet in those years, it is astonishing to hear that the Net was considered by Washington insiders to be ". . . a collection of empty pipes, waiting to be filled with content" (93). The entire movement to reform our copyright law ignored the fact that we already had a vital electronic information infrastructure bursting with content, albeit primarily non-commercial content. Yet it wasn't difficult to sell this vision to industry, the legislature, and the few members of the press who got wind of the Working Group's activities, most likely because most people had very little, if any, experience with the Internet itself. If they had, they dismissed it as being "academic" and therefore not relevant to the vital commercial world that the National Information Infrastructure promised to be.
The entire DMCA was based on a vision of a market that didn't exist in a world that was destined not to be. Not only that, the resulting bill was so long that it was subsequently published in book form. The original bill was about three thousand words long. As it went through committees it grew to four thousand, then twelve thousand, and finally passed at a whopping thirty thousand words. It covered not only the digital millennium but such special interests as boat hull designs. And no one, not even the most ardent of copyright attorneys, understands it all. As Litman says: "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" (114).
This incomprehensibility of the copyright law has a great effect on the ability and willingness of the public to obey it. A theme that runs throughout Litman's book is that no law is effective if the people whose behavior it is supposed to control cannot understand it, or find it so absurd they are not willing to believe in it. Laws that are not obeyed are ineffective, as we saw with the federally imposed fifty-five-mile-per-hour speed limit that was routinely ignored even by those who consider themselves generally law-abiding. Rather than embarrass itself further, the government rescinded the law. The DMCA already has examples of public disbelief, the foremost being the development of the DeCSS program, software that allows DVD owners to play DVDs on Linux machines even though the DVD industry hasn't provided drivers for that platform. To many individuals it is an affront to be told that you can't choose the hardware platform in which to view a movie you legally own. It's also rather absurd that the industry is making a big deal about the decryption of their copy protection when the details of the copy protection scheme are at this point public knowledge, having been published on the Internet, and simple enough that it was first broken by a fifteen-year-old. Litman doesn't come right out and say that the DMCA is doomed to failure, but she offers some good reasons not to bet on its success.
Arguably the most significant development in the DMCA is that for the first time in the history of our copyright law we have specific provisions aimed at the individual. Previous incarnations of copyright law were focused on competing commercial interests; individual non-commercial actions, although theoretically infringing, were not considered sufficiently threatening to warrant a response. As Litman says, "As a comprehensive strategy, litigation works best against commercial actors" (167). The anti-circumvention language of the law makes breaking through technological protection, such as the CSS encryption of DVDs, a criminal act. This might be an effective strategy unless a large portion of the public engages in such acts, in which case an industry is faced with having to treat its customer base as criminals. Even those who haven't passed Marketing 101 can see that taking legal action against the bulk of your customers is probably not good for an industry's bottom line.
You can add to this the complete failure of some major industries to understand the new technology, most notably the music recording industry. The Recording Industry Association of America (RIAA) spent years trying to outlaw the sale of devices that play MP3 files, while the total number of available files in that format grew into the millions. Meanwhile, the RIAA offered no alternative format to MP3. While talking the moral high ground, the recording industry continued to sell CDs at inflated prices (which became even more obvious when writable CDs came to the consumer market and people learned that even they could purchase the blank CDs for around fifty cents each). And although Metallica sided with the recording industry (and alienated many of its fans), other artists spoke out against the industry with stories of exploitation and near starvation, even while they were making number one hits for record companies. Napster is the evidence that many, many individuals don't believe what the record industry is saying, even though they care about its product. "If forty million people refuse to obey a law, then what the law says doesn't matter. It may be that people flout it because they're natural lawbreakers, or it may be . . . that they don't comply because it doesn't make sense to them. Whatever the reason, the law is not going to work well in the real world" (169).
The DMCA is a huge, incomprehensible law that entirely failed to take into account the hundreds of millions of consumers of intellectual property. It has placed the intellectual property industries in direct opposition to the public, the very public that buys its goods. When you think about it in these terms, it's a pretty amazing mess that they have gotten themselves into.
I first encountered Litman through her testimony at hearings related to the Green Paper on Intellectual Property that was the draft report of Lehman's Working Group. The transcripts of the hearings were published on the Department of Commerce Web site (presumably, though, without counting as "content" by the Working Group's own definition). After slogging through hundreds of pages of some of the most toadying lawyer-ese, Litman's testimony leapt from the page like some minor miracle of truth and justice. It was Litman who pointed out during those hearings that, as formulated in the Green Paper, copyright law was moving from control over copying to control over access. For the first time the law sought to control the acts of reading, listening, and viewing of copyrighted materials. She said then (and reprises this theme in her book): "What I think is needed now is for someone to act as the copyright lawyer for the public. To examine these proposals as one would if the public had retained one as its copyright lawyer and said: here is a proposal-is this in my interest? . . . I believe that the public's copyright lawyer would see an amendment expressly privileging individuals using their computers for ordinary reading, viewing, or listening to authorized copies of copyright work." 1
Unfortunately, the public's copyright lawyer did not appear and the DMCA was crafted without such representation. We now have a law that actually encourages limitations on access and use of copyrighted materials. The CSS program that protects DVDs does not prevent copying of the DVD content, it only prevents unlicensed access, even though the DVD may itself be a legally owned copy. The digital rights management systems that are being developed for electronic books will have the same effect: they will regulate access and use, not copying. The intellectual property industries seem to be bent on developing some of the most user-hostile controls over their products that the world has seen. Where can we possibly go from here?
The last chapter of Litman's book opens with the sentence: "As of this writing, the future is murky." I wanted the book to have a neat ending, one that wraps up the whole question and makes me feel better about things. Of course, it's difficult writing a book on such a volatile topic, and Litman can't be faulted because she can't predict where we are going with digital copyright-no one else knows either. We can only hope that she comes back to us from time to time to continue her analysis. When she does, she'll be speaking or writing to an audience that has a better understanding of the current situation. Although we may not know where copyright is going, thanks to Litman we can understand how we got to where we are today.
1. United States Department of Commerce U.S. Patent and Trademark Office, National Information Infrastructure Task Force Working Group on Intellectual Property, Public Hearing on Intellectual Property Issues Involved in the National Information Infrastructure (Sept. 22, 1994).