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:
COPYRIGHT
TOWN MEETING: Houston, April 25, 2001