Copyright as Cudgel

The Chronicle of Higher Education, Aug. 2, 2002

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.

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.

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).

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Religion News Blog posted this on Friday August 9, 2002.
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