Thursday, November 18, 2004
5:00 - 7:00 p.m.
the Congressional Budge Office released a report titled "Copyright
Issues in Digital Media." The report defined copyright
as an instrument "for allocating creative resources,"
not an "absolute, inviolable set of rights to which either
creators or consumers are entitled." But how do such apparently
even-handed principles work out in practice? And what are the
constitutional and intellectual principles that lie behind the
idea of copyright? What lessons for current arguments over the
downloading of music or films are embedded in the history of
copyright? How is patent law different from copyright law? As
part of this ongoing conversation about creativity, ownership
and the powers of technology, the Forum is planning a series
of panels on specific aspects of the copyright wars.
Recent copyright forums.
L. Ferullo is director of the Purdue University Copyright
Office, which was established in 2000 and provides advice and
guidance to faculty and staff on copyright issues. Prior to
joining Purdue University, Ferullo had a solo law practice in
Boston specializing in copyright law.
Meurer is a professor at the Boston University School
of Law where he teaches courses on patents, intellectual property,
and public policy toward the high-tech industry.
FERULLO said that passage of the Digital
Millennium Copyright Act of 1998 (DMCA) and the Technology
Education and Copyright Harmonization (Teach) Act (2002), which
defined “fair use” of copyrighted materials for
distance learning, have made universities increasingly responsible
for disseminating crucial copyright information to their constituencies.
to the Teach
Act Web pages on Purdue University’s Web site as an
example of how a university provides educators with useful copyright
information. The pages contain analysis of the law, and a checklist
to help educators determine whether materials are eligible for
fair use within the distance-learning environment.
On the issue of peer-to-peer file sharing, she said that schools
are increasingly opting for license agreements that allow students
and others to download music for a service fee. Purdue, for
example, purchased a license that allows music sharing, and
will soon extend it to the online sharing of movies. She said
UCLA has deployed a system that disconnects a user from the
Internet and notifies them when they have violated copyright.
controls could inhibit academic research by imposing criminal
charges on those who circumvent anti-piracy codes in their research,
she said. A Princeton scholar, for example, was prosecuted when
his dissertation included information about circumventing the
copy protection code on Adobe’s Ebooks.
there is general agreement that the public should not have to
pay twice for government-funded research, prevailing systems
of publication often place crucial research findings in expensive
professional journals, which then sell it back to the universities
via library subscriptions. Some universities are turning to
alternative licensing and publishing agreements such as those
offered by Creative Commons,
or engaging in open access initiatives such as MIT’s
OpenCourseWare to offset the increased costs and loss of
copyright control sometimes associated with journal publishing.
said that many library services such as interlibrary loans,
electronic reserves and 24/7 online reference help are burdened
by issues of copyright. Increasingly, new companies such as
as intermediaries, taking on copyright-permission, licensing
and content management roles. This adds another complex and
costly item to budgets already strained and threatened.
by criticizing the repeated extension of copyright protection
-- now the life of the author plus 70 years – and erosion
of the fair use exemption, the legally protected use of copyrighted
materials for educational purposes. Practical copyright policy
should be collaborative, she said, and aim at balancing the
rights of owners and users.
MEURER said that although he is a strong proponent
of fair use he would describe “what’s right with
the copyright system” and speak, to some degree, from
an industry perspective.
out the basics of copyright law, saying that copyright exists
from the moment of fixation or creation – “the moment
pen is lifted from paper or finger from the keyboard”
– and does not need to be registered with any official
body. Patents, on the other hand, protect inventions and an
application for a patent must be reviewed by the U.S. Patent
Office to determine if it can be granted. Copyright protects
expression, not fact or idea, he explained. Patents cover function
content, which is the domain of copyright. Both copyright and
patent protect software but in different ways. While all software
is copyrighted, not all of it is patented. Patent protection
is more extensive, protecting features such as algorithms, but
does not last as long as copyright protection.
The primary tool
used by copyright owners such as publishers is the direct reproduction
rule, which prohibits unauthorized reproduction of protected
works. Citing recent cases against peer-to-peer music file sharing
Web sites such as Napster, Aimster and Grokster, Meurer said
these sites have not been successfully prosecuted for violating
the direct reproduction rule because they are considered intermediaries
between users who are actually copying protected material.
industry won legal victories against Napster and Aimster by
invoking indirect reproduction provisions, persuading the courts
that these companies had aided and abetted copyright infringement
by providing an extensive search function for finding illegal
online copies of copyrighted materials. But the case against
Grokster was lost because Grokster did away with a centralized
search system, and that loss forced the music industry to rethink
its litigation strategies.
Describing the United
States a “low-protection regime” in which users
have stronger rights than in other parts of the world, Meurer
said that when the possibility of sharing is built into a system,
costs rise accordingly. In the days of photocopying, for example,
journal prices soared as publishers sought to recover indirectly
the value lost to Xeroxing. Similar increases in costs have
resulted from digital copying, but the scale and anonymity of
digital file sharing make it unlikely that pricing strategies
will succeed in recovering more than a fraction of lost revenues.
THORBURN, Communications Forum Director: Michael, you
commented on how some publishers are raising their prices to
libraries to offset losses. But, this has caused subscriptions
to journals to diminish. University budgets are horrifically
attacked by the cost of these journals. This isn’t a no-loss
situation. Isn’t this is a negative thing?
On balance, I’d say not. I don’t have strong sympathies
for the publishers, but copyright is supposed to provide financial
incentive for authors to write and publishers to disseminate,
and publishers are now vulnerable to cheap and faithful copies
that can be easily distributed through digital technologies.
I point to these
different business models – different means of appropriating
value – as a way for publishers to offset what they see
as lost income. One of these strategies is differentiation,
in which different customers including libraries are charged
different prices. I am not saying it is socially desirable,
but the point is that publishers have new marketing strategies
open to them by the same digital technologies that allow easy
and effective copying.
FLEISHAUER, MIT Libraries: Donna, I am intrigued by
something you wrote in the Chronicle of Higher Education a couple
of years ago, and I’ll read part of it. You wrote, “Fair
use is far from death’s door. It is alive and well and
becoming more powerful with each shift in the law that strengthens
the copyright holder’s stake and weakens the public’s
right to use the work.” What exactly did you mean by that
and do you still believe it?
Yes, I do still think it’s true. That was written in response
to a long article that said fair use was dead, and I disagree
with that. Fair use is such a great exception to copyright laws
for us – for universities – to use, but we don’t.
We’re afraid of lawsuits. There are a lot of situations
in which fair use would apply, but we see what’s going
on with the recording industry, for example, and it has a chilling
effect. But we still have fair use and we need to use it. There
are laws that may try to erode it, but the principle exists
in law, and we need to use it and be advocates for it.
Are you aware of the differences in the application of fair
use as it applies to print materials and images?
Fair use as a concept is technologically neutral and should
apply to all media. But, as Michael said, we are getting to
the point where fair use is available by law but the technology
is eroding its use.
CONDRY, MIT: I have a comment and a question. Copyright
is about markets, and fair use strikes a balance in markets.
There is this assumption that one free download equals one stolen
CD or DVD. But several studies indicate that is not true. Lawrence
Lessig, for example, points out that there is massive downloading
of CDs with a fractional impact on sales. Nevertheless, file
sharing has become synonymous with stealing, and I see that
as bad for the educational mission in which we promote sharing.
We want to share ideas; that’s how we move forward in
the intellectual world.
My question is based
on the fact that many American college students now download
episodes of Japanese animated broadcast television shows. I
can understand that copyright would apply if one downloaded
an HBO movie, but what about something that is publicly broadcast
in Japan? Is this an infringement of copyright?
The Japanese producers would say yes. They would say they have
an opportunity to sell DVDs of their show in the U.S., and if
Americans are getting the show through file sharing then they
are losing money. The courts would probably side with the Japanese
I agree with your
sentiment about sharing. One definition of sharing is a shared
experience and that notion of sharing fits with what economists
call a public good, but I do worry about widespread sharing
a la Napster.
Three studies I know
of indicate no lost sales due to file sharing, and two others
indicate about a ten per cent to twenty per cent loss in sales.
It’s not a hundred per cent loss. I do think there will
be economic harm if there is widespread file sharing, but not
as bad as the industry makes out.
Blockbuster purchases one video and allows several people to
view it. Blockbuster does the industry a service by smoothing
out consumer demand, but the industry fought it. I think there
is some merit to the argument that file sharing of music or
films includes some element of advertising, some sampling, some
tasting as radio broadcast does. But the industry says ‘we
don’t need file sharing for purposes of advertising.’
They want to control their own marketing.
What about mechanical royalties? Do you see a reasonable method
We’re still waiting for micropayments to take
off. There is a long list of elements used in the copying process
and that could be taxed. I am not excited about micropayments
because it is pretty hard for the government to establish these
taxes and it accelerates a trend I don’t like: copyright
law being more and more politicized. It creates more of a chance
for pork-barrel politics, for Congressional involvement in setting
rates, establishing the terms for the issuing of licenses.
MARX, TV producer: I am interested in media criticism
published on the Internet along with samples of a movie to illustrate
an intellectual point. I have found so far is that movie distribution
companies are not supportive of this, but it seems as if it
would promote their product.
That goes back to fair use and why I like fair use. When you
are doing criticism, it shouldn’t matter if you are doing
it online or in print.
But a moving image is not possible in print. The Internet is
the only way you can use a moving image in a practical way.
I once published an essay that involved a close reading of the
television show Lonesome Dove, especially of the title
sequence. Once the Internet came along, I wanted to post it
online, but MIT attorneys said that I couldn’t, that they
were afraid of being sued. I think they were wrong.
It sounds like fair use.
We both think it’s fair use.
Now I am confused. I buy a DVD and figure out how to make a
copy of a small portion of it. I intentionally degrade the image.
I reduce the file size. But I beat the encryption and you’re
saying that’s the problem.
That’s the problem. One way to beat this is to use an
analog output. You play the movie and you tape it from the screen.
Wal-Mart puts radio frequency identification (RFID) chips on
their products before shipping, and they can track them throughout
the world. Is there an opportunity for publishers to put such
a chip on printed material? Could this happen in libraries?
You go to make a copy of a book or article and you are automatically
Law students don’t use books any more; they use online
services like LEXUS and WESTLAW. Products have been replaced
by service, and the advantage to the publishers is that they
can count every use. They can determine light users and heavy
users and charge them accordingly.
JENKINS, Comparative Media Studies Director: A recent
case that intrigues me involves Marvel Comics and a gaming company
that produces a game called City of Heroes. It begins with the
user creating a super hero using generic characteristics. Marvel
is suing because in theory you can make a series of choices
that could recreate the Incredible Hulk. So, a first argument
is that it is copyright infringement. A second argument is that
playing that character in the game world is the equivalent of
If that’s publication
then is it publication if I make my kid a costume to wear at
the mall where he’ll be seen? How do we attack this notion
of aiding and abetting infringement with these authoring tools?
I have two independent lines of attack. First of all, the program
that would allow the user to replicate something that is copyrighted
creates a hard question about what to do with the independent
creation defense. The copyright holder must prove an infringement,
for example, that the creators of the City of Heroes software
were thinking about Marvel heroes. If that was motivating them,
then the independent creation argument is weak.
the word “publication” has a place in copyright
law, but not here. This is more of a display or performance.
So, is this public or private? I think there have been lawsuits
over costumes. Day care centers putting Mickey Mouse on the
walls is public. A small group of friends playing a game online
might be construed as private.
by Brad Seawell