Representatives of a number of major content providers — albeit not the movie or music industry — recently got together and asked their trade association to do more to stem the tide of public persuasion and public action that they believe is undermining the copyright law in the U.S. According to these representatives, a number of well-known law professors who don’t believe in copyright have had their way with the public and Congress and are rolling back the coverage of the United States Copyright Act. According to this group, it’s time for the other side of the story to be told.
This leaves me dumbstruck.
When asked who these law professors are, names like Lessig, Boyle, Samuelson, and Benkler are mentioned. Yet one has to ask, which of these law professors doesn’t believe in the Copyright Act, since none of them have written any such treatise? One has to ask, exactly what legislation have the scholars successfully pushed through Congress? One has to ask, exactly what court cases have these individuals won that have narrowed the scope of copyright?
While each of these professors is an ardent believer in fair use and the public domain, and while each has expressed concern over the direction of copyright legislation and interpretation, none have ever advocated abolishing the Copyright Act. To the contrary, each, along with organizations like the Electronic Frontier Foundation (http://www.eff.org/
), has only attempted to stem the tide of ever more aggressive copyright legislation sought by various parts of the content industry. But based on Congressional action and court decisions over the last ten years, the “freedom fighters” are having a difficult time.
Let’s look at the evidence.
Exhibit No. 1: The Digital Millennium Copyright Act (DMCA) enacted in 1998. Did DMCA reduce the scope of copyright? Hardly. Instead, it defined electronic copyright protection measures, even those measures that interfere with fair use, to be sacrosanct, making circumvention of such measures a criminal offense. DMCA also increased penalties for copyright infringement on the Internet. Opponents criticize DMCA for going too far in controlling access to content.
Exhibit No. 2: The Copyright Term Extension Act of 1998. This act extended the term of copyright protection from the life plus 50 years of individual authors and 75 years for works of corporate authorship to life plus 70 years and 95 years, respectively. Except for the interest of a handful of content companies, how was this change in the public’s interest? Despite Larry Lessig’s efforts in Eldred vs. Ashcroft, the U.S. Supreme Court said that Congress is free to extend copyright protection basically without limit. This, despite the fact that no less an ardent support of copyright than MaryBeth Peters, the U.S. Register of Copyrights, publicly stated, “We’ve certainly lengthened the term[ of copyright] perhaps — I won’t even say perhaps — too long a term. I think it is too long. I think that was probably a big mistake, but one that Congress can make.”
Exhibit No. 3: The Family Entertainment and Copyright Act 0f 2005. One part of this act makes a criminal offense of both the filming of movies within a movie theater and the early release of software or movies before such content is made publicly available by the content owner. Little concern here. However, the other part of this act provides an exemption of liability to replay hardware that can be programmed to skip past offending parts and/or blank out offending video or audio contained in a scene of a movie. In other words, because parts of a move are considered “inappropriate” by a viewer, he or she can create and watch a modified version of that movie, and the equipment that enables such editing is not considered to violate the Copyright Act, a rather bizarre inconsistency with Exhibit 1 above.
Exhibit No. 4:
The proposed Section 115 Reform Act
(or SIRA) championed by Rep. Lamar Smith. This legislation fundamentally redefines copyright and fair use in the digital world. It would require all incidental copies of music to be licensed separately from the originating copy. Even copies of songs that are cached in your computer’s memory or buffered over a network would need yet another license. (See http://ipaction.org/blog/2006/06/worst-bill-youve-never-heard-of.html
.) Once again, this legislation is being pushed by the content industry.
To Serve and Undermine?
All of this brings me back to the title of this article. Section 8 of the U.S.Constitution provides Congress the authority “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, Congress, on behalf of the general public, has the right to grant these limited monopolies. The idea, as clearly communicated in the Constitution, is to promote science and the arts by encouraging authors, artists, and inventors to share their works and inventions.
However, along the way things have gone seriously off track.
Today the public’s interest is being ignored in Congress. In a feeding frenzy over campaign contributions (and other graft?), Congress appears incapable of restraining ever more aggressive legislation in the field of copyright. In efforts to assuage the often-exaggerated concerns of the content industry, legislation is being advanced that impinges on public rights and the interests of other industries, such as the software industry.
A Call to Action
There is little doubt that the ability to transmit content digitally has presented new challenges to copyright, but the needs of the content industry must be balanced with the rights of individuals and other industries.
If you work in software, and especially in open source software, you should be concerned about these repeated encroachments into your freedoms. Contact your Congressional representative and let them know you are opposed to SIRA. Consider supporting or the Information Policy Action Committee (http://ipaction.org/
) as they fight to protect your rights.
Mark H. Webbink is Deputy General Counsel of Red Hat, Inc.