This article is from The Chronicle of Higher Education, August 2, 2002 http://chronicle.com/free/v48/i47/47b00701.htm _________________________________________________________________ > > Copyright as Cudgel > > By SIVA VAIDHYANATHAN > > Let's pretend that a journal has just published your harshly > negative review of a book in your field. In this review, you > quote short passages from the book, confident that the > long-accepted concept of "fair use" enables you to make even > unwelcome use of copyrighted material for purposes of > criticism. > > But a week or so after the electronic version of the review > appears on the publication's Web site, the editors inform you > that it violates the 1998 Digital Millennium Copyright Act, > and that they are removing it. You are welcome to respond. You > are free to argue that the use of the copyrighted quotes falls > under fair use. But the publication is under no obligation to > accept your defense. So you publish the review on your own Web > page. But you soon discover that all of the major Web search > engines have removed your site from their indexes. > > That couldn't happen, you say? Welcome to the new millennium. > > When Congress brought copyright law into the digital era, in > 1998, some in academe were initially heartened by what they > saw as compromises that, they hoped, would protect fair use > for digital materials. Unfortunately, they were wrong. Recent > actions by Congress and the federal courts -- and many more > all-too-common acts of cowardice by publishers, colleges, > developers of search engines, and other concerned parties -- > have demonstrated that fair use, while not quite dead, is > dying. And everyone who reads, writes, sings, does research, > or teaches should be up in arms. The real question is why so > few people are complaining. > > Consider the recent case of the Church of Scientology > International and the search engine Google. The wealthy church > used the threat of a well-financed lawsuit -- and the 1998 > act's provision that a service provider will not be liable for > infringement if it moves with "dispatch" to delete offending > material -- to persuade Google to block links to several sites > that included criticism of Scientology. "Had we not removed > these URL's, we would be subject to a claim for copyright > infringement, regardless of its merits," Google said. > > Back in the 20th century, if someone had accused you of > copyright infringement, you enjoyed that quaint and now > seemingly archaic guarantee of due process. Today, due process > is a lot harder to pursue, and the burden of proof > increasingly is on those accused of copyright infringement. > For the copyright act, in essence, makes the owner of every > Internet service provider, content host, and search engine an > untrained copyright cop. The default action is censorship. > > The conflict between the Church of Scientology and Google is > one of many such cases. In July 1999, shortly before Talk > magazine made its debut, the writers John Aboud and Michael > Colton posted online a parody of the magazine, which -- until > it folded -- was produced by a partnership between Hearst > Magazines and Miramax Films. Miramax lawyers sent a > cease-and-desist letter to Earthlink, the Internet company > that owned the server on which the parody sat. Earthlink > immediately shut the parody down, although it restored the > site after Talk's editor, Tina Brown, appealed to let it > stand. Lawyers for both Miramax and the Church of Scientology > cited the Digital Millennium Copyright Act (often known by its > abbreviation, DMCA) as the basis of their claim. > > Besides prompting such censorship, the act has another major > provision, which upends more than 200 years of copyright law > that has, until now, served democracy well: the principle that > what copyright law does not specifically protect remains > available to all to use, for whatever purpose the user sees > fit. The DMCA bars the circumvention of electronic access > controls that protect online works, a provision that seems to > block the use of even those portions of works that might be in > the public domain. > > How direct the assault on academic freedom could become was > demonstrated in spring 2001, when the music industry tried to > prevent a computer scientist, Princeton University's Edward W. > Felten, from presenting a scholarly paper at a conference. The > Recording Industry Association of America argued that the > paper dealt with encryption algorithms that it hoped to use to > protect digital content, and so violated the copyright law. > The association backed down, but the Felten case is merely the > best known of several efforts that online-content industries > have made to prevent researchers from discussing certain > technologies and algorithms. > > All of that is the reason I view the Digital Millennium > Copyright Act as reckless, poorly thought out, and with > gravely censorious consequences. Yet, back in 1998, when > Congress passed the law, there was little public outcry -- or > interest, for that matter. The news coverage tended to treat > the act as a harmless extension of copyright to the new > digital world. Most often, those who raised concerns were > dismissed by advocates of copyright protection as radicals who > were against copyright in general. > > Since 1998, the DMCA has revealed itself to be a failure. It > has not been effective at preventing piracy in cyberspace, yet > it has managed to stifle harmless and even beneficial uses of > material for research and teaching. > > Various groups -- software producers, artists, writers, > librarians, media activists -- have protested. But, with a few > notable exceptions -- most significantly the Digital Future > Coalition, an alliance that includes law professors, library > groups, and scholarly associations -- we academics have been > painfully slow to argue against abuses in and of copyright > law. > > When the DMCA was being considered, the Digital Future > Coalition put up an admirable defense of the principles of > access and fair use for teaching, research, and criticism. But > the commercial forces allied against it were too formidable. > In the absence of widespread public outcry, Congress could > only rely on what the most powerful interested parties told > it: that if some copyright protection is good, then more must > be better. Had there been some grassroots activism by > teachers, writers, and researchers, Congress might have > realized that it was considering reckless legislation. > > At the 2001 meeting of the American Studies Association, fewer > than a dozen people attended a session that I organized on how > the regulation of intellectual property threatens intellectual > freedom. And those sessions have been few and far between at > most academic meetings. If most of you and your colleagues > have even heard of problems with the Digital Millennium > Copyright Act, chances are you assume that other people will > take care of them. Won't they? > > Academics have more to lose in the copyright wars than most > people do. We are not only the source of much of the "content" > in the world. We are -- through our teaching and research -- > among the major conduits and consumers of the content that > others provide. We have a vested interest in keeping > information flowing as cheaply, widely, and quickly as > possible. We need a rich, diverse, affordable, and accessible > information ecosystem to do our jobs. > > So why have academics been caught napping? I have several > hypotheses. They have to do with recent academic practice and > culture, and its relation to our broader society. > > Perhaps we have too blithely assumed that Congress and the > American people actually value teaching and research and would > not pass laws that impede either. We take our privileged > positions in society for granted, and don't work to explain > the importance of what we do. That is at the root of our > discomfort when the public and legislators tell us that our > scholarship is too arcane, our costs too high, and our > workload too light. > > Perhaps we have been too busy tilting at the windmills of the > culture wars and the science wars to realize that the common > interests of all academics are threatened. Internecine strife > is so much more immediate. Perhaps, when and if some of us > have realized that copyright matters, we have asked only, > What's in it for me? Say "copyright" to many academics, and do > they think primarily about protecting their own rights (even > to a lot of what is really little more than worthless online > content) -- instead of the wider world of scholarship? > > More broadly, a mood has come to prevail not only in the > academy -- particularly among administrators and trustees -- > but also among legislators that has strengthened the thrust of > copyright revision. Together, trends in scholarship, copyright > law, and mood have combined to generate a set of assumptions > about academic work that are weighted toward the exploitation > of professors and the protection of a university's "property," > and against sharing or distributing knowledge. The rising > importance of privately sponsored research on campus and > efforts by universities to capitalize on faculty research, > distance education, and other opportunities are changing the > nature of universities. While they are still the largest > content-consuming institutions around, they have been thinking > and acting like content providers -- and have missed the > radical implications of changed copyright law. > > As a result, course packets that used to be easy to assemble > and affordable to students are now a hassle and a big expense. > Professors are abandoning them in favor of prefabricated > published readers or less-convenient library reserves. Getting > permission to quote from a song or to include an old > photograph in a scholarly publication is getting to be > prohibitively expensive. Some professional journals are > demanding that academic authors assign all rights in all media > in perpetuity to them, then gouging subscribers and libraries > for the right to read materials that academics weren't > compensated for in the first place. Online journals are > replacing paper volumes, allowing publishers to extort all > sorts of user restrictions from libraries. And those are just > the micro-horror stories, the short-term costs of current > trends. > > In a larger sense, while academics have slept, the content > industries have systematically stifled flows of essential > information, created artificial scarcity, and made certain > areas of basic research potentially illegal. > > Had we made a unified public stand against the Digital > Millennium Copyright Act and the Sonny Bono Copyright Term > Extension Act in 1998, which extended the term of copyright > protection by 20 years, we might have been better able to > alter the terms of discussion, if not smooth out some of the > more odious portions of the laws. Had we been able to persuade > humanities scholars to step back from all the "problematizing" > and "theorizing" that fills so many seminar rooms and journals > and, instead, organize around clear themes and concerns, we > could have joined scientists in their decade-long effort to > keep information flowing by protesting ever-more-costly > journals. And had administrators and lobbyists been less > concerned about ways to capitalize on the false promise of > online, for-profit education and more concerned with the > actual future of education, we might have been able to unite > in voicing opposition to copyright policies that threaten us > all. Despite fashionable cynicism about our political system, > Congressional representatives still read and care about > constituent mail. And they still care about their local > education institutions. > > Fortunately, scholars and teachers, even when silent, will > benefit from the hard work of public-interest groups like the > Electronic Frontier Foundation, digitalconsumer.org, and > publicknowledge.org. These activist organizations are > struggling to accurately define the "public interest" in > copyright and debating how best to articulate the issues to a > diverse public. But without widespread, grass-roots support, > these groups will face the same frustration that the Digital > Future Coalition experienced in 1998 -- a remarkably powerful > and well-financed campaign from the entertainment industry. > They need us as an ally. > > Public-interest copyright activists are an ideologically > diverse group. Many of us are classically liberal, civically > republican, and philosophically pragmatic. We focus on > restoring the balanced, humane principles that used to guide > American copyright. We frame our rhetoric in terms of > individual freedom, a modest level of state intervention, and > a flexible, adaptable regulatory system. Others come from the > perspective of religious freedom and conservative values. They > want parents and teachers to have the right and ability to > edit digital material they deem offensive, even if the DMCA > prevents the use of the technologies required to alter the > work. > > Other equally active critics of recent trends in copyright > take a Marxist perspective. They warn of the coming > postindustrial infotainment-industrial complex and the ways it > has enlisted the state in efforts to make commodities of all > information and culture. Still others espouse a form of > information anarchy. According to them, if we empower every > user, limit the power of large corporations to regulate the > flow of information, and democratize information generally, we > can achieve a state of absolute liberty in which we all can > both create and consume material. > > All the critics lament the erosion of the democratic > safeguards that made American copyright such a brilliant and > effective system and that helped fill our libraries with > books. Copyright can censor. It is a prohibition on what we > may reproduce, quote, perform, and distribute. Over the past > 200 years, however, through both statutes and the common law, > the copyright system developed four safeguards that mitigated > the potentially censorious power of its prohibitions: > > * The principle of fair use -- in essence, a legal defense > against an accusation of copyright infringement. If you are > accused of infringing, you can make an argument that your use > of the protected works is "fair" because of some combination > of these factors: The nature of the original work makes it > important that it be publicly discussed; the nature of your > use of it is important because of teaching, research, or > commentary; you do not use very much of the original work; > your use does not significantly affect the market for the > original work. In the public discourse about fair use, it has > served as a term representing a collection of uses that > consumers could consider "fair," like recording television > shows for later viewing, making audiocassette tapes or MP3 > mixes from compact disks, and limited copying for private, > noncommercial sharing. > > * The principle that after the "first sale" of a copyrighted > item, the buyer can do whatever he or she wants with the item, > except publicly perform the work or distribute unauthorized > copies for sale. The first-sale doctrine is what makes lending > libraries possible. > > * The concept that copyright protects the specific expression > of ideas, but not the ideas themselves. This is the least > understood but perhaps most important tenet of copyright: You > can't copyright a fact or an idea. Because you can't, anyone > may repeat your idea, whether to criticize it or build on it. > Journalism, along with many other forms of common expression, > depends on the principle. > > * The promise that copyright will last -- as the Constitution > demands -- for only "limited times," thus constantly > replenishing the public domain. The public domain allows for > low-cost scholarship, research, and revision of formerly > copyrighted works. The reason that bookstores are filled with > high-quality yet affordable scholarly editions of Mark Twain's > The Adventures of Huckleberry Finn and John Stuart Mill's On > Liberty is that they are in the public domain. The reason > there is no annotated scholarly edition of Ralph Ellison's > Invisible Man is that it is not. > > In other words, copyright, when well balanced, encourages the > production and distribution of the raw material of democracy. > It is supposed to be an economic incentive for the next > producer, not a guarantee for the established one. But after > more than 200 years of legal evolution and technological > revolution, copyright no longer offers strong democratic > safeguards. It is out of balance. Each of the four safeguards > is under attack by the copyright cartel. > > We need to restore them. Some of us, therefore, are generating > friend-of-the-court briefs for the pending Supreme Court > hearing on the constitutionality of the Copyright Term > Extension Act, in the case Eldred v. Ashcroft. We are fighting > for the First Amendment right of a hacker magazine, 2600 (and > for the right of everyone), to describe certain illegal > algorithms and create hyperlinks to other pages that describe > or offer those algorithms. And we are playing defense in the > halls of the Capitol against pending legislation that would > create a new and dangerous property right in databases of > facts, and even more odious legislation that would require all > producers of electronic hardware and software to include > anticopying devices in their products. On the positive side, > we are supporting Rep. Rick Boucher, a Virginia Democrat, who > is considering introducing legislation that would temper the > more censorious aspects of the DMCA. > > One way to move toward a definition of the "public interest" > in copyright is to examine its historical roots and the > various concerns that interested parties have had with the > evolving system over the past 400 years. > > At its birth in England, copyright was an instrument of > censorship. In 1557, Mary Tudor, the Roman Catholic queen, > capped off a 120-year monarchal struggle to censor printing > presses by issuing a charter to the Stationers' Company, a > guild of printers. Only members of the company could legally > produce books, which had been licensed by the crown. > > In contrast, the American copyright system, in place since > 1790, has reflected republican values. It grants a limited, > temporary monopoly to a specific publisher. But just as > important, the framers and later jurists concluded that > creativity depends on the use, criticism, supplementation, and > consideration of previous works. Therefore, they argued, > authors should enjoy a monopoly just long enough to provide an > incentive to create more, but the work should live afterward > in the "public domain," as common property of the reading > public. > > James Madison, who introduced the copyright-and-patent clause > to the Constitution, did not engage in absolutist "property > talk" about copyright. He argued in terms of "progress," > "learning," and other such classic republican virtues as > literacy and an informed citizenry. When President George > Washington declared his support for the Copyright Act of 1790, > he proclaimed that it would be a step toward "teaching the > people themselves to know, and to value their own rights; to > discern and provide against invasions of them; to distinguish > between oppression and the necessary exercise of lawful > authority." Thomas Jefferson -- author, architect, slave > owner, landowner -- had no misgivings about protecting private > property. Yet he expressed some serious doubts about the > wisdom of copyright, based on his suspicion of concentrations > of power and artificial monopolies. > > I believe that the Digital Millennium Copyright Act represents > a failure of that trust in the copyright system to cope with > the democratic potential of changing communication > technologies. > > The danger is clear. It's time to find a way to discuss > copyright issues in the public sphere that doesn't leave > substantive deliberation to a select group of trained experts. > The public has as deep a stake in the outcomes of the > copyright debate as any lobbyist or plaintiff. At one point, > Napster had 77 million registered users, more than twice the > number of America Online users. And there are few Americans > who have not wondered about the intrusive power of that video > "mattress tag," the FBI warning at the start of every rental > videotape. But the common rhetoric about copyright obscures > much of what is at stake. > > We make a grave mistake when we choose to engage in > discussions of copyright in terms of "property." Copyright is > not about "property" as commonly understood. It is a specific > state-granted monopoly issued for particular policy reasons. > While, technically, it describes real property as well, it > also describes a more fundamental public good that precedes > specific policy choices the state may make about the > regulation and dispensation of property. But we can't win an > argument as long as those who hold inordinate interest in > copyright maximization can cry "theft" at any mention of fair > use or users' rights. You can't argue for theft. > > Two rhetorical strategies have emerged. Most prominent is > "commons talk." A growing number of activists and law > professors are pushing for an appreciation of the "information > commons." Sparked by a brilliant 1997 article by the Duke > University law professor James Boyle, "A Politics of > Intellectual Property: Environmentalism for the Net?," this > movement toward preservation and expansion of an information > commons resembles the environmental movement 40 years ago. > With good luck and hard work, activists hope to build a > similar level of public concern and awareness about how > information operates in society, and the need for it to be > commonly owned and shared. For an important statement on the > information commons, see David Bollier's Silent Theft: The > Private Plunder of Our Common Wealth (Routledge, 2002). > > The second rhetorical strategy involves focusing on users of > copyrighted material -- everyone who reads, writes, watches, > photographs, listens, or sings. This is a more pragmatic > approach, intended to warn people that the harmless acts they > have taken for granted for years, like making a mixed tape or > CD for a party, or "time shifting" television programs and > skipping commercials, are threatened by recent changes in law > and technology. The organization digitalconsumer.org is > promoting "The Consumer Technology Bill of Rights," which > makes private, noncommercial uses positive rights instead of > weak defenses to accusations of infringement. > > Within academe, we can use those strategies to make clear to > our students, our peers, our Congressional representatives, > and the public that copyright is a bargain, a good deal for > everyone. As both content producers and users, we are in a > good position to outline the complexity and benefits of such a > deal. And we are in a good position to highlight the abuses > that copyright holders have engaged in since 1998. > > We must be blunt about the current system's threats to free > speech, intellectual freedom, and the free flow of > information. We must be careful not to be trapped in > nihilistic rhetoric about the "end of copyright." Copyright > need not end if we can rehabilitate and rehumanize it. Our > jobs depend on it. > > Siva Vaidhyanathan, an assistant professor of information > studies at the University of Wisconsin at Madison, will become > an assistant professor of culture and communication at New > York University this fall. He is the author of Copyrights and > Copywrongs: The Rise of Intellectual Property and How It > Threatens Creativity (New York University Press, 2001). > _________________________________________________________________ > > You may visit The Chronicle as follows: > > http://chronicle.com > > _________________________________________________________________ > Copyright 2002 by The Chronicle of Higher Education >
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