Report From the Digital Trenches

Today is a critical day in the digital entertainment wars: an updated study says copyright needs to be seriously revamped to balance the needs of the public with those of rights holders and creators; one ISP stands firm against the RIAA while another goes back to court to challenge the RIAA subpoena power under the DMCA, a senator will introduce a bill that does just that; a law professor says parents aren’t responsible for what their kids do online anyway; defiance returns.

Just in time to give some balance and clarity to the digital entertainment wars now engaged on several fronts, the Free Expression Policy Project has just published a fully revised and updated edition of The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual Freedom – a summary of the major controversies over file-sharing, fair use, the ever-receding public domain, the “Digital Millennium Copyright Act,” and more:

Executive Summary

Copyright – our system for protecting and encouraging creativity – has been described as “the engine of free expression.”1 But copyright can also interfere with free speech – with the public’s right to share, enjoy, criticize, parody, and build on the works of others. Resolving these sometimes conflicting claims requires courts and policymakers, in the words of the Supreme Court, to strike a “difficult balance” between rewarding creativity through the copyright system and “society’s competing interest in the free flow of ideas, information, and commerce.”2

A critical component of this “difficult balance” is the system of free-expression “safety valves” within copyright law. Four of these safety valves – the “idea/expression dichotomy,” the concept of fair use, the so-called first-sale rule, and the public domain – provide necessary breathing space for free trade in information and ideas. The free-expression safety valves keep the system in balance and prevent the monopoly control created by copyright law from becoming rigid and repressive.

But the “difficult balance” has become lopsided in recent years. With the advent of electronic communications, and in particular the Internet, the media companies that make up the “copyright industry” have adopted techniques of “digital rights management,” which control the accessing and use of creative materials in ways that are often inconsistent with a free and democratic copyright system. Two federal laws, both passed in 1998, have further distorted the system by favoring the industry at the expense of the public’s interest in accessing, sharing, and transforming imaginative works.

One of these laws, the “Sonny Bono Copyright Term Extension Act,” extended the term of copyright protection to nearly a century for corporations and even longer for many individuals and their heirs. It consequently delayed the time when cultural products will enter the public domain and be freely available. The other law, the “Digital Millennium Copyright Act” (DMCA) made it a crime to distribute technology that circumvents the industry’s electronic locks on books, films, articles, software, or songs – even though circumvention itself is not always illegal, and even though a ban on technology strikes directly at scientific research.

Meanwhile, battles over online “file sharing” of music, movies, books, and software have created a crisis in the entertainment industry, alienated many fans, and failed to resolve the question of how much sharing should be allowed or whether all of it should be stringently prosecuted as a violation of copyright law.

The courts have not always been equal to the task of resolving these copyright conflicts. A constitutional challenge to the Sonny Bono law was rejected by the Supreme Court in 2003. The Court’s decision ignored the law’s adverse effects on culture, and seemed to suggest that Congress, by continually extending the term of copyright, can freeze the public domain indefinitely. But in the process of fighting this well-publicized case, many defenders of the public interest – archivists, libraries, and scholars among them – began to organize and advocate for changes in the copyright system that could help bring valuable if long-forgotten works into the public domain.

There have already been many lawsuits involving the DMCA. In one early case, the federal government criminally prosecuted a company that created a device to decrypt electronic books. Although a judge rejected the company’s defense – that its circumvention device had legitimate (indeed, constitutionally protected) uses that would not infringe the copyrights on e-books – a jury eventually acquitted the company. But in another case, online journalists who distributed “DeCSS,” a program for decrypting DVDs, were found to have violated the DMCA even though the program could be used in ways that would not infringe copyright. The courts even ordered the defendants to remove links on their Web site to other sites that contained the DeCSS code.

To fight online file-sharing, the music industry went to court to shut down Napster. New, less centralized systems like Grokster and KaZaA, however, quickly replaced Napster, and the industry has not so far persuaded the courts that these digital copying and sharing technologies are themselves “contributory” infringers of copyright. But the war against file-sharing has only intensified. In late 2003, the industry sued more than 200 individuals, including teenagers, for sharing music online.

Public interest groups, scholars, librarians, artists, computer scientists, and others in the growing “copyleft” movement are responding to the copyright crisis with projects that encourage the sharing of information and creative works. Some promote and distribute free software. Others are advocating for a more flexible system that would allow material lacking in current commercial value to enter the public domain sooner.

Conflicts between “strong” copyright control and free expression today thus occupy center stage in the public policy arena. The diversity and vitality of our culture depends on resolving these conflicts in a way that maximizes artistic and intellectual freedom.

….Recommendations

Move toward restoring the “limited time”/public domain balance by returning to the copyright terms of the 1976 Act: life plus 50 years for individuals; 75 years for corporations. Alternatively, require that heirs and corporations file a notice of renewal, thereby allowing works that no longer have commercial value to enter the public domain sooner. Require corporate copyright holders to file a notice of renewal after 50 years, and every ten years thereafter, as proposed by Representative Lofgren.

Repeal the “tools” provisions of the DMCA, or at least, exempt anyone whose purpose is political commentary or scientific research. Legalize the manufacture or distribution of circumvention tools that permit “significant non-infringing use” of copyrighted works.

Create broader exemptions for fair use under the DMCA. Limit liability for circumvention to those who intentionally aid and abet copyright infringement. Alternatively, interpret the law narrowly to bar only conventional circumvention devices such as “black boxes,” and not to censor computer code.196

Recognize that much copying done for personal, noncommercial purposes is fair use.

Require copyright owners to license copyright-protected music and other creative work online on reasonable, nondiscriminatory terms.

Eliminate the DMCA requirement that Internet service providers and search engines remove disputed content from their servers based simply on a demand letter from a copyright owner. Eliminate ISP liability for copyright infringement by their users unless they intentionally assist with infringement.197

Outlaw the industry practice of encrypting portions of works that are not copyright-protected – for example, the original text of public domain works.198

Encourage alternatives to lengthy copyright terms through Creative Commons and similar projects.

I suport every one of these conclusions, which strike a reasonable balance between the needs of creators and the public, for whose benefit copyright was theoretically created in the first place, to foster “the progress of science and useful arts.” Read the entire excellent report for background and detail supporting these recommendations.

Meanwhile on the ground, SBC Communications refuses to hand over the names of its customers alleged to be engaged in file sharing to the RIAA, the only major ISP to do so:

Since early July, major high-speed Internet providers – including BellSouth, Comcast, EarthLink, Time Warner Cable and Verizon – have complied with more than 1,000 subpoenas from the record industry’s lobbying arm, the Recording Industry Association of America, to turn over the names of their customers who are otherwise known only by the murky screen names and numeric Internet Protocol addresses used in cyberspace.

SBC, the No. 2 regional phone company and a major local telecommunications service provider in the Midwest and West, has received about 300 such subpoenas and has refused to answer any of them. It has stuck to that position even though Verizon, the biggest local phone company – which has most of its customers along the East Coast – lost a major lawsuit this year against the recording industry.

….”We are going to challenge every single one of these that they file until we are told that our position is wrong as a matter of law,” James D. Ellis, general counsel for SBC, said yesterday in a telephone interview.

Ever since the Telecommunications Act of 1996 remade the communications industry, SBC has been considered by far the most legally aggressive of the nation’s major communications companies. Mr. Ellis is scheduled to testify tomorrow about the copyright subpoenas before the Senate Commerce Committee. With about three million high-speed data customers, SBC is the nation’s No. 1 provider of broadband Internet access using digital subscriber line technology.

“Clearly, there are serious legal issues here, but there are also these public policy privacy issues,” Mr. Ellis said. “We have unlisted numbers in this industry, and we’ve got a long heritage in which we have always taken a harsh and hard rule on protecting the privacy of our customers’ information.” [NY Times]

Verizon goes back to court today to continue to challenge the court ruling against it compelling it to reveal the identity of customers subpoenaed by the RIAA:

Verizon Communications Inc. is challenging the constitutionality of the subpoenas under the 1998 Digital Millennium Copyright Act. A trial judge, John D. Bates, earlier had approved use of the subpoenas, forcing Verizon to turn over names and addresses for at least four Internet subscribers.

The 1998 law, passed years before music downloading was popularized, permits music companies and others to force Internet providers to turn over the names of suspected pirates upon subpoena from any U.S. District Court clerk’s office. A judge’s signature is not required.

Critics of the procedure contend judges ought to be more directly involved, given the potential privacy issues involved when a corporation is asked to reveal personal information about customers over an allegation of wrongdoing.

….The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit was being asked Tuesday to consider whether Bates correctly ruled against Verizon earlier this year. The panel includes Chief Justice Douglas Ginsburg and Senior Judge Stephen F. Williams, both Reagan appointees; and John Roberts, appointed by President Bush in May 2003.

Verizon had argued unsuccessfully that Internet providers should only respond to such subpoenas when pirated music is stored on computers that providers directly control, such as a Web site, rather than on a subscriber’s personal computers. It also said judges should approve requests for subscriber information only after “John Doe” civil lawsuits have been filed.

In his ruling, Bates criticized Verizon’s “strained reading” of the law. He wrote that Verizon’s interpretation “makes little sense from a policy standpoint,” and warned that it “would create a huge loophole in Congress’ effort to prevent copyright infringement on the Internet.” [AP]

And in the senate, at least offering moral support:

Sen. Sam Brownback , R-Kan., planned to introduce a bill Tuesday to protect Internet providers from such subpoenas. His proposal, which he called the “Digital Consumer Internet Privacy Protection Act,” would block subpoenas except in pending civil lawsuits or in cases where pirated data files were stored on computers such as Web sites.

And on yet another legal front, an Ohio State law professor thinks that parents may not be legally responsible for what their kids do online, including, obviously, file sharing:

Ohio State’s Peter Swire, a former Clinton administration official, says parents are not responsible for their kids’ online actions unless they willfully sat down with them and worked the mouse together to access the songs.

“This is going to be an uphill climb for the recording industry,” he says. “They have to show that the parent contributed to the infringement or directly benefited. If the kid is upstairs on the computer and the parents didn’t know what he or she was doing, that is going to be very hard to prove.”

….Swire, who believes it’s a case easily won, says he hopes some brave parent takes the heat. By going after the kid instead of the parent in court, “the RIAA risks seeming like even more of a heavy.”

New York City college student Lorraine Sullivan, 28, says the RIAA was wrong to target her. She has called about settling and will accept the $3,500 offer. But she wishes she could afford to take them on.

“I’m terrified of bankruptcy,” she writes on her suedbytheriaa.com Web site. “How could I, an already in debt college student, possibly go up against a multibillion-dollar international industry and survive?” [USA Today]

Lorraine is looking for donations, by the way.

And finally, after a period of regrouping in response to the RIAA’s legal shock and awe campaign, contrary voices are becoming very defiant:

you can’t stop mp3s now, it’s too late.

Is it stealing? You could line up all 261 of the defendants and shoot them in the back of the head on national television and it wouldn’t work. We’re going to keep at it because you’ve made it so much cooler by making it on the edge of illegal. This is an easy way for simple, unadventurous people to feel like they’re criminals too and are able to affect the profit margins of invincible corporations. You took consumers for granted and now they’re taking you for granted. [Purdue Exponent]

UPDATE
Report on the Verizon appeal:

The three-judge panel from the U.S. Court of Appeals for the District of Columbia tossed tough questions at lawyers for all sides. Judges plainly wrestled with esoteric provisions of the disputed 1998 law that permits music companies and others to force Internet providers to turn over the names of suspected pirates.

….But if the appeals court was leaning in one direction by the end of Tuesday’s hearing, it was indecipherable. One judge, John Roberts, alternately suggested that a “logical extension” of the 1998 law wouldn’t permit such subpoenas in these music lawsuits; then he accused Verizon of profiting from the online piracy of its subscribers.

“You make a lot of money off piracy,” Roberts told Verizon lawyer Andrew McBride. People who download large collections of music traditionally favor high-speed Internet connections like those offered by Verizon’s Internet subsidiary.

….Roberts, a new appointee of President Bush, also challenged RIAA lawyer Donald B. Verrilli Jr. about whether computer users downloading music were any different from people who maintain libraries in their homes.

Roberts questioned whether the fact that copyrighted files were publicly accessible on someone’s computer necessarily means the Internet user is illegally distributing those files. File-sharing software typically stores downloaded music in a computer folder that is freely available for other Internet users to browse.

“Isn’t is equivalent to my leaving the door to my library open?” Roberts asked. “Somebody could come in and copy my books but that doesn’t mean I’m liable for copyright infringement.” [AP]

Dude is either scrupulously fair or schizo.