A Copyfighter’s Musings

Harvard JOLT Copyright and Fair Use Symposium

Robert Holleyman, BSA

            BSA has been dealing with these issues for the longest time

            Industry has had much more experience with copy protecting measures, software and hardware – but, ultimately, we depend on our users to choose to license, purchase, or steal

            When we think about DMCA, important to remember: lose substantial money each year

            Notes importance of consumer buying power in shaping commercial offerings

            Underlying principle of copyright isn’t necessarily wrong just because technology has changed how easy it is to copy

            Also: BSA is technology companies, so oppose mandates

 

Dan Gillmor, SJ Mercury

            Talking with an exec from Adobe – who said that fair use is something that copyright holders should get to determine, they will give you fair use if they want

            Myth of Silicon valley v. Hollywood: depends on which part of SV, which kind of company

                        Intel: kind of on the fence, want to help consumers but also support hardware based protection (like TCPA/LaGrande)

            Will the market settle this?

                        Large, conglomerate industries – individual doesn’t really matter – clickthru, shrinkwrap – that’s not negotiation

 

Gigi Sohn, Public Knowledge

            When we talk about fair-use, this is what it becomes in Congressional meetings: everyone’s gotta give up something that means that the public has to give up something

                        So, she doesn’t want to talk about fair-use, because the public will lose

            We should look at: Freedom to innovate – freedom tinker

            What happens to that freedom when copy protection is embedded inside everything?  That’s DRM

            What happens to competition when content companies determine compliant devices?

            We don’t want to protect copyright at the expense of other public goods

                        Couple options: Stick with what laws we’ve got.

                        Maybe throw in some compulsory licensing – like MOCA

                        Another option: limited self-help – agrees with this, but not in the extreme form (think of the crazy thought experiments  brought about by Berman Bill)

                        Education

 

Siva Vaidhyanathan, NYU Professor

            In some ways, fair use has never been stronger in the last 15 years

                        Think of what Ginsburg said in Eldred – fair use is important

                        Wind done Gone case

                        2 Live Crew and parody

                        Beenie Baby catalogue decision (Posner wrote it) (ed: anyone see this?)

                        Diamond Rio case

            So, the courts have been protecting this right?

            The problem is: not everything is a catalog, or a parody

            In many other ways, fair use in the home, the classroom, library has never been weaker

            COPYRIGHT REGULATES CULTURE

                        How much regulation do we want to allow, when overregulation squelches cultural development? That’s the question we should be asking

            Right now, fair use does not offer confidence to users

                        users don’t know what they can and cannot do. 

                        Speaks of historians calling him to check with him about using sources in their work – he can’t give them a clear answer, and publishers don’t want to deal with this – so you get a chilling effect

                        Another ex: Person who wrote history of country music – couldn’t quote a lyric because publisher wouldn’t support her fair use defense and couldn’t get permission

            So you get a chilling effect – people don’t know what they can do and are worried

            Valenti says, “You [consumers] can’t do what you’ve been doing for many years” – that’s going to reduce faith in the system

           

Alec French, minority counsel – works for Rep Berman

            Disagrees with Siva

            Two premises

                        1. Copyright and fair use are inextricably linked

                        2.  Fair use is  meaningless without copyright – if a copyrighted work is never created, you don’t have a work to (fair) use

            Copyright and DMCA are doing quite nicely to protect creation – we have more production and distribution with more pricing plans and on more platforms and in more forms – it’s a golden age

            There are some serious threat to innovation though

                        1.  Weakening of copyright protection – weakening of right of creators to protect their works – eg, piracy – weakening = ease of making pirated copies

            (ed: he said he was going to disagree strongly with Siva – but, I don’t see how Siva would disagree with piracy being a problem)

 

Siva question to Alec

            Wouldn’t you say the DMCA is a failure if all you’re saying is true?

Alec responds:

            But look at DVDs!  DMCA protects CSS – and because it was litigated to be illegal, people aren’t pirating movies as much – provided movie owners incentives

Siva responds:

            But, aren’t there pirated copies?

Alec:

            Yes, but it’s been suppressed to manageable levels

 

Dan jumps in:

            You want to quote form a DVD, you can’t do it legally – if that’s an example of success, I worry about the future of creation, innovation

 

Gigi jumps in:

            Everything gets lumped into piracy – but hard goods piracy is completely different from online piracy – hard goods piracy is a very different problem

            Also, we need to think about most creative artists: and MOST creative artists are at the BOTTOM of the food chain. These are not in big companies making tons of money – not their golden age. They’re the ones getting threatened with (sometimes bogus) lawsuits

                        Speaks of a documentary film maker who wanted to do something called “American Girl”  – got a threat from Mattel

                        Gives example of filmmaker who tried to use 6 seconds of Simpsons and was asked to pay 25000 thousand dollars

            Last point: DMCA was not intended to go to garage door openers, Sony Aibos, and interoperation with lexmark printers

 

Alec:

            Fair use with DVDs can happen – it’s just not the most CONVENIENT use. Just point a digital camera at it.

            Talks about needle point designers that get pirated – she’s in a very small market, she’s at the bottom of the food chain and she’s getting nailed by piracy – see skinnersisters.com (or something like that)

            Talks of another small filmmaker who’s been hurt by piracy

            Segue to Lexmark case: that is how the DMCA is supposed to work.  Likened to the Playstation and how we regulate mod chips.  They’re analogous.  Plus, Lexmark was doing this to help consumers – more price discrimination  Moreover, if Lexmark is committing antitrust violations, DMCA has nothing to do with that – other law takes care of that.

 

Siva: don’t’ they have 100% of their replacement market?

Alec: Well, you have a choice to buy any printer you like, right?

 

Bob, BSA: is there really that chilling effect there?  Look, fair use hasn’t really changed with digital works.  It’s always been on a case by case basis – this hasn’t changed.  Also, agrees with Alec that this is a golden age.

 

Question from audience:

            Intel was a supporter to Boucher bill, but BSA opposed. Companies like Sony, where you have them producing Mp3 players and producing music, kind of falling on both sides. So, what are business leaders doing?

 

Bob:

            Within companies, there are lots of debates within the divisions of that company. There are conflicts, but the result is balancing.

            BSA decided as a group that 1201 is instrumental in what protects copyrighted works.

            Companies might have nuances in the position, but the BSA’s balancing includes opposing Boucher

 

Dan:

            Only point of disagreement is that there is balance in current law.

            To step back: Hollywood doesn’t want you to point a camera at a TV and be able to record it. So, Alec is wrong the analog hole is going to stay open.

            The balancing ends up not allowing the customer to do what he wants to do.

 

Gigi:

            Tech companies won’t be your knights in shining armor.  Tech companies don’t want to be obstructionist, so they let broadcast flag go through.

            Some in industry like DRM fine when it’s their system.

            Boucher bill – all it does is provide fair use and scientific research exemption to DMCA -it brings the balance back

            Boucher bill is incremental change to DMCA (ed: another point is just to say that DMCA doesn’t stop piracy right now, so only thing you’re preventing is legal uses.)

 

Question: why didn’t the person who wrote the book on the country music quote? That’s fair use right? Why didn’t her publisher back her up?

 

Siva:

             Complicated situation for publishers.  University press didn’t want to get involved. It’s much easier when you have a big record company or big publishing house behind you.

            Like Alec is saying: little people are losing.  The copyright law that supports her is 1910 law. But, because people have lost faith in the system, we lose not only fair use but also consumers working fairly within he system.

 

Alec:

            But, there could be DRM for needlepoint – when that happens, DMCA will help them

 

Siva: what the heck? IS that going to be a better world when we have DRM for needlepoint?

 

Alec:

            Look, 5 years, two threatening letters to Felten and Snosoft – that’s nothing, they didn’t even get sued. What are people worrying about?

 

Moderator:

            Have you ever talked to Felten? All computer researchers need money for lawyers now.

 

Gigi:

            Hard to prove a negative.  Look at chillingeffects.org – things don’t get litigated, but they do get stopped.  And, moreover, chilling effects are very difficult to document.

 

Bob:

            DMCA did set up a safety valve – the Copyright Office is now taking comments to create exceptions.

            But let’s move away from talking about the extremes – that happens in all forms of law.  It’s important to talk about the extremes, but we can’t rely on them.  It’s a balancing, it can’t get everything right.  The important thing to say is: are we better off today is are we better off today with the DMCA? And the answer is yes – many more ways of people making content available, which wouldn’t be.

 

Siva:

            Correlation does not mean causation. DMCA hasn’t made a dent a in piracy.  Piracy is still going up.

            DMCA doesn’t really have a safety valve either – that process won’t get anything.  You get your exemption, but you can’t get the tool to circumvent!

 

Alec:

            Look at the companies that don’t have strong copyright protection, you don’t see strong creation.

 

Siva:

            DMCA is not copyright.

 

Question:  Difference between access controls and use/copy controls. remember, there is no use control, just an anti-trafficking control.  What DRM does is get around that lack of protection – it charges people for use.

So, at the very least, consumers need to not be hosed by monopoly pricing.

 

Alec:

            Doesn’t really see the problem here.  There is an exemption process

 

Dan:

            You’re right – there is this monopoly pricing. But the response is: buy something else, quote something else.

            There’s this problem where all we talk about is how we consume – consume being the key word.  Internet and technology is about production and consumption – two way medium. 

           

Bob:

            DMCA was not a close call in Congress.  If you create a market for anti-circumvention devices for fair use, that ends ups wallowing up the rule. You still end up with piracy. So, the balance as that we need an anti-traffickng provision – fundamental, and working well.

 

Gigi:

            There was no robust debate over DMCA [Bob and Alec shake their heads no] – little public input, passed very quickly , zipped through – everyone did not have their balance

            Lot of talk about price discrimination – problem is, if the copyright holder determines what all the prices are, that’s not competition.  This market is not like a normal market.  If you only have movielink or pressplay making the prices, doesn’t work.

 

Alec:

            Worked at 3 different places that debated the DMCA for 6 years.  Started before 1993, endless hearings, WIOP conference – TONS of discussion

 

Moderator:

            What makes fair use sacred as it is?  Can fair use be something different in the digital environment?   

Question:

            I don’t get household purchases – I purchase software, can only put it on one computer.  And, I buy DVDs, and I’d like to edit out stuff I don’t like.  There’s no way I’m going to point a camera at a TV screen – and I’m going to be less likely to buy the DVD for that reason. I have no room to maneuver.  So, the attitude that I, as a consumer, take is, the system sucks, I don’t want to respect your copyrights any more.

 

Alec:

            I don’t see why the copyright holder shouldn’t let be able to charge you for the two copies.  Now, if everyone is going to make two copies, you’re going to get charged a higher price. This is why DRM is good – you pay only for what you do. If you make one copy, pay that price – two copies, another price. Price discrimination is good.

 

Dan:

            Brings up cleanflicks.

 

Bob:

            Immediately starts talking about moral rights [everyone starts yelling]

           

Gigi:

            There are vehicles to make change in this system.  Support PublicKnowledge, support EFF. Get involved, let your representative know, support Boucher.

            Tide is starting to shift a little.  Consumer outrage is beginning.

 

Siva:

            Tide is turning because we’re seeing it tough our daily lives. We’re being producers – Internet and digital technology is empowering us. And at the same time, everything is getting locked down.

            We need to get mad about it, collectively, not simply as private acts of rebellion. Piracy isn’t really helping situation – understandable, but not excusable.  This goes back to the fact that we have abandoned copyright. Valenti abandoned fair use, we’ve stopped respecting copyright holders by pirating their works.

            We need to go back to an imperfect regulatory regime 

Filed by Derek Slater at 3:11 pm under
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