Abstract

This concluding Forum in our series on copyright will focus on the ways in which copyright law affects individual artists and the intellectual life of the community at large.

The first Forum examined Who Owns Research and Teaching? The second in the series looked at Creativity/Markets/Copyright.

Speakers

Siva Vaidhyanathan is assistant professor of Culture and Communication at New York University and the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York University Press, 2001) and the forthcoming The Anarchist in the Library: How Peer-to-Peer Networks are Transforming Politics, Culture, and Information (Basic Books, 2003).

Jonathan Zittrain is the Jack N. and Lillian R. Berkman Assistant Professor of Entrepreneurial Legal Studies at Harvard Law School and co-founder of the school's Berkman Center for Internet & Society where he served as the first executive director from 1997-2000. His research includes digital property, privacy, and speech, and the role played by private "middlepeople" in Internet architecture.

Summary

[This is an edited summary, not a verbatim transcript.]

SIVA VAIDHYANATHAN explained how his interest in rap and hip-hop music, and particularly its signature use of sampling - borrowing and incorporating passages from previously recorded music - led him to examine the American copyright system, its history and its effect on creativity. Having "tapped into rap music as a young person in the 1980s," he said he noticed in the early 1990s that while the lyrics were getting "more interesting, more challenging and controversial, the music itself was getting simpler and thinner, less interesting, less self-referential, less intertextual; it stopped talking to its tradition."

He attributed the change to an increasing number of lawsuits and cease-and-desist actions aimed at preventing sampling.

As he began to examine copyright, Vaidhyanathan said he expected to find that American copyright law would be hostile to non-European collaborative traditions of creation and communal invention. "I assumed . . . [that] African culture wouldn't fit the model of European law, but that's not the case."

He found, in fact, that original American copyright law "allows for a whole lot of play, a whole lot of freedom." He identified several "conditions and loopholes that make copyright work as an incentive system while mitigating its ability to act as a system of censorship":

1. Fair Use - the right to use copyrighted material for purposes such as teaching. This is not a right, but the principle of Fair Use can be used as a defense when there is an accusation of copyright infringement.

2. First Sale - this principle emerges from the idea that when you buy an object such as a book, you own the book but not the material in the book. You can do anything with the book itself; libraries exploit this principle. But "in the digital world it gets a lot more messy" because every first purchase also involves the making of a copy.

3. Expression Dichotomy - the "least understood safeguard" - is the idea that although copyright protects particular formulations, a string of text, it does not control the underlying ideas. Copyright doesn't protect ideas or facts or data. The ability to express and criticize ideas enables thought and speech in a democracy, Vaidhyanathan said.

4. Public Domain - This is the idea that the copyright monopoly created in law is not perpetual and ensures that the public gets a return on its agreement to grant a copyright. It's important to remember that the original term for copyright in the U.S. was only 14 years.

Recent extensions of copyright - the current term is a shocking 95 years - seem to undermine the founding principle of allowing public use of copyrighted ideas within a reasonable time, Vaidhyanathan said.

During the 1990s digital technology permitted the copying and sharing of text and especially of music on a scale new in history. In reaction, Vaidhyanathan explained, powerful companies have enlisted lawyers to achieve two things: "to exploit emerging global markets and maintain monopoly pricing on their archives."

One result was the Digital Millennium Copyright Act. "That changed the game," Vaidhyanathan said. "Copyright used to be in the domain of human beings and human judgment, but with the Act it becomes a function of technology. The Act supports technological solutions to human problems; a shift from humanity to technology."

JONATHAN ZITTRAIN characterized the "current intellectual property moment" as a collision between Title 17, the U.S. copyright law, and "what we call reality." In the past, the laws governing copyright and the reality of how people used and reproduced copyrighted materials co-existed according to a range of common-sense norms, Zittrain said. Today, however, publishers are eager to protect more and more material, while individuals are able to appropriate and share a vast new range of previously protected work. "We're all being goaded on" by the power of emerging digital technologies.

The widespread use of MP3 players and peer-to-peer services to access and exchange music over the Internet, Zittrain said, are examples of what can be seen as "an encroachment into territory formerly controlled by industries and not individuals."

To further illustrate the digital appropriation of copyrighted matter, Zittrain displayed a Web site called "Illegal Art" that features satire and other creative works incorporating copyrighted materials. Brian Boyce's "State of the Union" combines images of President George Bush with scenes from the Teletubbies television show; another item is a mock-advertisement urging people to watch a War with Iraq as a sporting event complete with McDonald's as a sponsor.

"These boxes," Zittrain said referring to computers "can make cultural statements. This is a legal battle becoming a cultural battle."

The challenge, he said, is to find ways to permit reasonable copyright protections while also allowing for the operation of common-sense arrangements of the sort that existed before the digital revolution. He identified the Fairness and Music Licensing Act of 1998 as an early attempt at such a compromise. This act is overly complicated and imperfect but its goal is important: to allow the playing of music in restaurants under certain circumstances without payment.

"The Eldred case is another big opening salvo" in the copyright battle, Zittrain said. This is the case, recently argued before the Supreme Court, that challenges the latest extension of copyright by an additional 20 years.

"The efforts at compromise," Zittrain concluded, have largely failed so far to challenge corporate and Congressional extensions of copyright. "By getting the sense that copyright lasts forever, we get the sense that it is property. When you begin to think of copyrighted material as property, the fact that it would revert to the public domain seems insane."

Discussion:

WENDY GORDON, professor, Boston University Law School: In terms of passive copying - copies are made in a computer cache when someone calls something up on the Web - most of the legal community is pretty much willing to roll over and play dead. How do you feel about RAM (random access memory) being defined as a copy? And is there any expectation of anyone challenging such a notion in court?

ZITTRAIN: Running a program requires making a copy of it, and the courts have upheld this as a copyrightable event. Do I want to see that reversed? Yes. This is the kind of situation where reality should dictate a reasonable solution. I would love to adopt a functional rather than literalist view of this matter, so that it is understood that whenever your browser caches a page, you aren't making a copy. It seems to me that is what prevails in practice, so it would be good to bring the law in line with the reality.

VAIDHYANATHAN: I don't think the idea that a RAM copy is a copyrightable event helps anybody.

ROSEMARY COOMBE, CMS visiting scholar, Berkman Center fellow: I worry that we are discussing all of this within an American legal framework, and if we put all of our eggs into the American legal basket we will be very vulnerable. Some of the democratic safeguards that Siva mentioned might be seen as restraints of trade in other countries. I come from Canada, where there is no fair use. And many jurisdictions have rejected parody as a defense. Many jurisdictions have blanket licensing. You do pay royalties in most jurisdictions. This alarms me.

VAIDHYANATHAN: You should be alarmed for those very reasons. Each one of those safeguards is under attack in the U.S. and abroad. While there are treaties such as the TRIPS Agreement that set a baseline for intellectual property regimes in countries that have signed it, as we move from a set of national principles into a global space, we are more likely to lose these battles.

QUESTION: How do you reconcile these so-called democratic safeguards with something like the fact that Martin Luther King Jr.'s widow has copyrighted the "I Have a Dream" speech? It is now a civil violation to show rebroadcast footage of that speech without paying royalties. How do you feel about that?

VAIDHYANATHAN: First of all, Dr. King's only incentive in making that speech was that he wanted to live in a better country - the speech should be in the public domain because it belongs to all of us. It should, of all things, be public because it is a part of our history. This level of commercial exploitation is alarming. I am alarmed by the King family's actions in terms of the diminished access to all of King's work.

QUESTION: Don't democratic principles dictate that you play that speech as often as possible?

VAIDHYANATHAN: Democratic principles do, but the law doesn't always go along with democratic principles.

ZITTRAIN: Different countries have different starting points as to how they look at this. It is tempting to invoke apple pie and Chevrolet here. But we have two American principles in conflict: the First Amendment guaranteeing free speech, and another imperative that says, "the business of America is business." And it is the Calvin Coolidegism that seems to dictate that if someone creates something they should get their fair share.

If we're talking about a process for rolled steel it seems weird to be talking about free this or free that. But when we are talking about the "I Have a Dream" speech, the idea that you can't say, "I have a dream" without paying someone a royalty is ludicrous.

Wendy [Gordon] is suggesting let's get the First Amendment into the mix. I think that's a great idea, although a messy one.

SETH FINKELSTEIN, programmer: We've talked about what the problem is, but what are the best ways to get to the results we want? What can non-lawyers do? I asked Richard Stallman this question (see Stallman's 2001 Forum talk on copyright). He said if you see a movie by a big studio and you don't like it, then don't pay for it. That doesn't go very far. I am amazed by the amount of money on the other side of this battle. If we don't have millions of dollars, what do we do? Just sit back and cheer on Lawrence Lessig?

VAIDHYANATHAN: That's part of it. What can we do? Plain talk is one thing. Everyone involved in this is trying to come up with a better vocabulary for discussing it. We actually have a growing army. It's a loosely knit bunch that includes hackers, users of material, and, most importantly, librarians. There are 30,000 librarians in this country who are very upset by all of this. They all vote and they talk to their congressmen. They are politically active right now, and if an objectionable piece of legislation is under consideration, they'll write letters and circulate petitions.

Once you bring in religious conservatives who want to show movies to their kids without nudity, then you have a bigger group. Then you get a group of talented lawyers involved. It is starting to happen. Unfortunately, the battlefield is global now and we don't have troops aligned globally, except for the hackers. ZITTRAIN: This suggests a three-pronged attack. First, you instruct people that this is a political issue, just as the environmentalism movement had to do.

Second, you work through the judiciary such as the Eldred case is doing in challenging the Sonny Bono copyright extension. That's what Lawrence Lessig calls "speaking reason to power." And the third thing, also sometimes used by the environmental movement, is to realize that what's on the other side is not something evil, it's an economic and predictable force. Then, you try to co-opt those on the other side, again as the environmental movement has done.

QUESTION: The Internet is heavily regulated in China. As Americans, we talk about the First Amendment, but how do we maintain our principles in the global realm without getting squashed?

VAIDHYANATHAN: The free flow of information predates the U.S. Constitution. It is common and universally applicable. In France in the mid 1700s, discussion of politics was the king's domain. It was an information environment not unlike China today. There were four or five places a round Paris where people would meet to discuss politics. That sort of semi-public sphere and peer-to-peer communication is really where the revolution was born.

In China, it doesn't help when companies such as Yahoo! are in cahoots with the Chinese government to limit communication, but these values are not alien to the rest of the world.

NOLAN BOWIE, lecturer, Kennedy School of Government: You mentioned the free flow of information. It seems as if the First Amendment is to be the model for the free flow of information doctrine, but it is not absolute. The First Amendment has all kinds of exceptions based on competing values. Moreover, it is not an end in itself but a mechanism for spreading democratic principles and values and behavior. Jonathan mentioned national security interests. Well, all countries have national security interests, and development is a big one.

The rules and laws seem to favor information-haves, so what should nation-states other than those in the west do in terms of their own development?

VAIDHYANATHAN: They don't have much choice if they've signed onto TRIPS, which standardizes a baseline of intellectual property protection in a whole lot of areas.

Interestingly, America was a nation of pirates until recently. We had that gestational period where we wouldn't have signed onto any international copyright agreements because standardization would have stifled our development.

QUESTION: What has brought about the diminishment of the public domain?

ZITTRAIN: I don't think anyone has yet made a real compelling case for the value of the public domain. Those of us in the legal professional haven't yet done what the environmental movement has done by putting the right koala bear on a poster and asking, do you really want kill this bear? We haven't gotten to that, but we have to do that with the public domain.

At the same, I think the publishers and other copyright holders have so far done a good job of painting those of us who care about the public domain as nuts, as the radicals.

--compiled by Brad Seawell
--photos by Kelly Clancy