Copyright as Cudgel

The Chronicle Review/August 2, 2002
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.