Copyright Unbalanced: From Incentive to Excess (10 page)

The situation with DVDs is representative of the effects of the DMCA on many software and content platforms. Because the DVD CCA must give permission before companies can create DVD players, it has the power to dramatically affect the market for DVDs and DVD players, keeping new entrants out of the market or putting them at a significant disadvantage by disallowing certain functionalities in their DVD players. This is a significant departure from the past. Film producers and distributors could not prevent VCRs from having a fast-forward button, but they can control digital content players’ functionality by only licensing machines that comply with certain conditions.

Worse effects arise from the absence of a fair use provision in section 1201. The Librarian of Congress can grant exceptions to the circumvention provisions for parties engaged in particular activities, but these exceptions are much narrower than the fair use exceptions to copyright. In 2010, the librarian only approved six exceptions, including enabling an e-book’s read-aloud function, enabling interoperability of lawfully obtained software applications on a phone, and circumventing CSS for educational purposes, documentary filmmaking, and noncommercial videos.
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But even when exceptions are granted to people who have legitimate, legal reasons to circumvent TPMs, the DMCA includes a Kafkaesque twist. The Librarian of Congress cannot grant exceptions for people who create tools to circumvent TPMs. So anyone who creates a way for the visually impaired to listen to encrypted e-books, or for a documentary filmmaker to decrypt a DVD, risks not only fines but up to five years of prison time. Moreover, the permitted exceptions have become much less useful for ordinary people. Those without the technical skills to circumvent a protection measure themselves must either give up or try to acquire an illegally created tool in order to legally access or copy material.

As a result of the DMCA, the development of technologies to help people legally access locked-up material is strongly discouraged. Well-meaning developers from other countries have even avoided coming to the United States for fear of being jailed for the creation of TPM-cracking technologies.
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Their concern is not unjustified. In 2001, Russian programmer Dmitry Sklyarov was imprisoned for several weeks, and then detained in the United States for several months, after speaking at a conference in Las Vegas. Sklyarov worked for a Russian company, ElcomSoft, and had allegedly worked on a program that converted Adobe e-books into PDF files, removing usage restrictions in the process.
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The converted e-books could then be read aloud to the visually impaired with text-to-speech software, printed on paper, or read on an unsupported operating system like Linux.
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While Sklyarov was ultimately allowed to return to Russia,
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his arrest has exerted a chilling effect on well-meaning American and foreign programmers alike.

In effect, the DMCA has created a new, shadow copyright regime that gives copyright holders the legal power to dramatically curtail fair use. If you want to make a fair-use copy of a digital work, which would be completely legal if made from a VHS tape or a book, you could be liable under the DMCA for circumventing a TPM, or creating a mechanism to circumvent the TPM.

The only way to make fair-use copies of copyrighted works controlled with a TPM is, ironically, to take advantage of the illegal acts and piracy of others. Imagine you wanted to copy a few seconds of protected songs for use in an educational presentation comparing different pieces of music. This would be a fair use of the copyrighted songs, because the copying and performance of the songs would be used for the purpose of commenting on the music.
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But if the songs were protected, you would be unable to copy the sound clips. However, if someone else developed a program to access the songs and then placed an unprotected version of the song on a file-sharing website, you might be able to copy the songs legally in order to make the fair-use clips. But this copying would require the willingness to navigate often-suspicious sites that traffic in copyright-infringing material. As a result, the DMCA incentivizes honest users to acquiesce to greater control over their own lawfully acquired media.

Given the historical origins of copyright, it is ironic that a statute rendering specific technologies illegal has become part of the law. The first copyright statute was established in England and was born out of criticism of the printing acts, which had restricted the number of printing presses and required presses to be licensed by the government.
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The Printing Act of 1662 explicitly limited the number of master printers in England to 20 and the number of presses each master printer could own to two.
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Calls for “liberty of the press” grew as the 17th century went on. John Milton advocated getting rid of the licensing requirements for printers, so that truth could “be sorted out in debate.”
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Both John Locke and Daniel Defoe argued for a system of authors’ rights in their works, rather than for continued regulation of the presses.
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The last Printing Act lapsed in 1695, and the Stationers Guild, the members of which had held a monopoly on printing, argued for regulation of the printing presses to be restored, citing the evils of literary piracy as justification for tighter control.
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These efforts ultimately failed.

In 1710, Parliament enacted the first recognizable copyright act, granting authors an exclusive right to publish their works for 14 years, renewable for another 14.
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Known as the Statute of Anne, England’s first copyright law was effectively a less-restrictive alternative to the rules that had previously restrained the printing industry.

The birth of copyright law paved the way for freedom of the press.
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Now that printers no longer needed licenses, any individual had the “liberty to print what he would speak.”
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Although stationers lamented the end of printing licensing, claiming it would open the door for increased literary piracy, other values, which were later labeled freedom of speech and of the press, came to trump concerns about piracy—and rightly so.

The relationship between copyright and freedom of the press was also apparent during the founding era of the United States. Before the addition of the Bill of Rights to the Constitution, Antifederalists worried that the copyright clause in the constitution would give Congress the power to curtail freedom of the press, just as England had once used the printing acts to control literary piracy and suppress dissenting views.
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Federalist James Iredell argued that an amendment protecting freedom of the press was unnecessary, because “Congress will have no other authority over [liberty of the press] than to secure to authors for a limited time an exclusive privilege of publishing their works.”
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A growing number of scholars, including Eugene Volokh, have argued that the First Amendment’s free press clause protects “freedom of the press-as-technology” as opposed to the “press-as-industry” (i.e., journalists).
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Volokh specifically argues that the free press clause protects everyone’s use of the printing press “and its modern equivalents.”
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Indeed, in 1948, the Supreme Court noted, “We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.”
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Chief Justice Warren E. Burger similarly stated in his concurrence in
First National Bank of Boston v. Bellotti
, “It is not strange that ‘press,’ the word for what was then the sole means of broad dissemination of ideas and news, would be used to describe the freedom to communicate with a large, unseen audience.”
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The DMCA is a 300-year step backward for copyright law and freedom of the press.
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The tremendous insight of the Statute of Anne was that it granted freedom to utilize the
technology
used for copying, while still granting individuals monopoly on the publication of particular works. As a result, printed speech could flourish, and better printers could be developed through market processes. The importance of this change was later enshrined in the US Constitution’s First Amendment, which forbids the federal government from making any law abridging freedom of the press.

The DMCA reverses this trend. The anticircumvention provisions criminalize technology that can be used to legally and legitimately access and disseminate speech. Worse, the anticircumvention provisions are ultimately ineffective at preventing piracy—after all, in most cases, it only takes one circumventor to crack a TPM and place a file online. Yet the DMCA prevents the existence of free, competitive, legal markets in content-accessing hardware and software.

Unfortunately, section 512’s notice-and-takedown system also fails to sufficiently protect free expression and has been routinely abused by copyright holders and other parties. Because takedowns are automatic, the notice-and-takedown process can be actively, intentionally abused in order to censor speech. The Romney campaign ad provides an excellent example: although it’s not clear why the Romney takedown notice was issued, it’s difficult to imagine that whoever issued it at BMG was motivated by concerns about copyright infringement—especially when videos of Obama singing “Let’s Stay Together” had been on YouTube for months and initially remained up. (BMG later issued takedown notices for those videos, presumably because it looked bad to have only targeted Romney’s use of the clip and no one else’s.)
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Other examples of notice-and-takedown abuse abound. Consider one from late 2011, when the public was actively debating the wisdom of the proposed Stop Online Piracy Act. Blogger Michael Masnick wrote a blog post about why SOPA should not be passed, and later discovered that it had been “taken down” from Google’s search results.
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The takedown request was issued by the antipiracy firm Armovore on behalf of a pornography company, Paper Street Cash. (Notably, Google did not have to inform Masnick that his page was being excluded from search results.)
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There was nothing even arguably infringing, nor any reference to Paper Street Cash or its copyrighted material, in the post or comments, and Google eventually reinstated the blog post in its search index. After Masnick wrote about the takedown, Armovore reached out to “‘accept full responsibility for the mistake’ and insist that while that takedown was an automated keyword-based effort, they now only do manual takedowns.”
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Masnick accepted Armovore’s explanation that the takedown was an honest mistake, as opposed to an attempt to silence opposition to SOPA. Nonetheless, the process would have played out the same way regardless of whether Armovore had acted negligently or maliciously.

Other examples of abuse abound. One group had all Justin Bieber’s songs temporarily removed from YouTube as a prank.
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One Internet celebrity reportedly started using notice-and-takedown to censor videos criticizing him, despite not even having a colorable copyright claim against his critics.
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Google received a notice from Sony to take down a blog post by romance author Adele Dubois for unclear reasons, possibly because Sony confused her blog posts with copyrighted material concerning the singer Adele.
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Even a clip from the NASA control room after the landing of the Mars
Curiosity
rover was briefly removed due to a completely unjustified takedown request.
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To further exacerbate the censoring effects of notice-and-takedown, content holders are increasingly automating their notice process. Warner Bros., for example, has been using an automatic process to send takedown notices that yields a significant number of false positives, resulting in significant amounts of non-infringing material being taken down without just cause.
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(The Electronic Frontier Foundation is currently arguing that such automated takedowns should subject Warner Bros. to liability for misrepresenting infringement to service providers.)
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In short, the notice-and-takedown regime requires modern-day presses—online service providers—to censor speakers.
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Although the government is not directly licensing or censoring speakers, the notice-and-takedown provision forces service providers to do the censoring for others, at the risk of significant legal penalties. As was demonstrated when Michael Masnick’s criticism of SOPA was eliminated from Google searches and when Romney’s campaign ad was removed from YouTube, the potential for someone to use the law to censor rather than to protect copyrights is enormous.

Despite the intertwined history of copyright law and liberty of the press, the relationship between copyright and the First Amendment has gotten short shrift by the Supreme Court. In
Eldred v. Ashcroft
, the Supreme Court justices explained they would not apply traditional First Amendment reasoning to copyright law, arguing that because the First Amendment and the Copyright Clause of the Constitution were passed close in time, it was plain that the founders considered the provisions to be consistent with each other.
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So long as the “traditional contours” of copyright law were not altered, copyright laws would be upheld as not violative of the First Amendment.
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The Court specified the traditional “First Amendment accommodations” that were already “built in” to copyright law: the fair use defense and the “idea / expression distinction” (i.e., the notion that you can copyright particular
expressions
but not
ideas
).
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