[WSIS CS-Plenary] NYTimes.com Article: The Tyranny of Copyright?

[muguet at noos.fr]

This article from NYTimes.com 
has been sent to you by muguet at noos.fr.



Hello everybody

A pretty good article in the New York Times
over the issue of Copyrights and
Free Speech. 

More generally, we can notice now a propensity towards private
justices with the legal tools provided by a decadent state. 
This is was happened at the fall of the Roman Empire and the birth of the middle age. 
The Internet Access Provider are forced to become overlords of their virtual domain, and to render private justice under the pressure of any group 

Will the internet age be feudal ?

At the WSIS, I tried to introduce such a carefully worded reocmmandation:

#  No implicit or explicit delegation of judicial power should be given or imposed on Internet Services Providers ISPs ( Connection, site hosting ) to the effect that the ISPs have to reach a conclusion on the nature and content of any information, whereever said information is stored, however the said information is transmitted. No exemption to this rule shall be allowed, even in the case of an alledged obviousness.

but it was discarded.

Have a good reading

Francis


muguet at noos.fr


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The Tyranny of Copyright?

January 25, 2004
 By ROBERT S. BOYNTON 



 

Last fall, a group of civic-minded students at Swarthmore
College received a sobering lesson in the future of
political protest. They had come into possession of some
15,000 e-mail messages and memos -- presumably leaked or
stolen -- from Diebold Election Systems, the largest maker
of electronic voting machines in the country. The memos
featured Diebold employees' candid discussion of flaws in
the company's software and warnings that the computer
network was poorly protected from hackers. In light of the
chaotic 2000 presidential election, the Swarthmore students
decided that this information shouldn't be kept from the
public. Like aspiring Daniel Ellsbergs with their would-be
Pentagon Papers, they posted the files on the Internet,
declaring the act a form of electronic whistle-blowing. 

Unfortunately for the students, their actions ran afoul of
the 1998 Digital Millennium Copyright Act (D.M.C.A.), one
of several recent laws that regulate intellectual property
and are quietly reshaping the culture. Designed to protect
copyrighted material on the Web, the act makes it possible
for an Internet service provider to be liable for the
material posted by its users -- an extraordinary burden
that providers of phone service, by contrast, do not share.
Under the law, if an aggrieved party (Diebold, say)
threatens to sue an Internet service provider over the
content of a subscriber's Web site, the provider can avoid
liability simply by removing the offending material. Since
the mere threat of a lawsuit is usually enough to scare
most providers into submission, the law effectively gives
private parties veto power over much of the information
published online -- as the Swarthmore students would soon
learn. 

Not long after the students posted the memos, Diebold sent
letters to Swarthmore charging the students with copyright
infringement and demanding that the material be removed
from the students' Web page, which was hosted on the
college's server. Swarthmore complied. The question of
whether the students were within their rights to post the
memos was essentially moot: thanks to the Digital
Millennium Copyright Act, their speech could be silenced
without the benefit of actual lawsuits, public hearings,
judges or other niceties of due process. 

After persistent challenges by the students -- and a
considerable amount of negative publicity for Diebold -- in
November the company agreed not to sue. To the delight of
the students' supporters, the memos are now back on their
Web site. But to proponents of free speech on the Internet,
the story remains a chilling one. 

Siva Vaidhyanathan, a media scholar at New York University,
calls anecdotes like this ''copyright horror stories,'' and
there have been a growing number of them over the past few
years. Once a dry and seemingly mechanical area of the
American legal system, intellectual property law can now be
found at the center of major disputes in the arts, sciences
and -- as in the Diebold case -- politics. Recent cases
have involved everything from attempts to force the Girl
Scouts to pay royalties for singing songs around campfires
to the infringement suit brought by the estate of Margaret
Mitchell against the publishers of Alice Randall's book
''The Wind Done Gone'' (which tells the story of Mitchell's
''Gone With the Wind'' from a slave's perspective) to
corporations like Celera Genomics filing for patents for
human genes. The most publicized development came in
September, when the Recording Industry Association of
America began suing music downloaders for copyright
infringement, reaching out-of-court settlements for
thousands of dollars with defendants as young as 12. And in
November, a group of independent film producers went to
court to fight a ban, imposed this year by the Motion
Picture Association of America, on sending DVD's to those
who vote for annual film awards. 

Not long ago, the Internet's ability to provide instant,
inexpensive and perfect copies of text, sound and images
was heralded with the phrase ''information wants to be
free.'' Yet the implications of this freedom have
frightened some creators -- particularly those in the
recording, publishing and movie industries -- who argue
that the greater ease of copying and distribution increases
the need for more stringent intellectual property laws. The
movie and music industries have succeeded in lobbying
lawmakers to allow them to tighten their grips on their
creations by lengthening copyright terms. The law has also
extended the scope of copyright protection, creating what
critics have called a ''paracopyright,'' which prohibits
not only duplicating protected material but in some cases
even gaining access to it in the first place. In addition
to the Digital Millennium Copyright Act, the most
significant piece of new legislation is the 1998 Copyright
Term Extension Act, which added 20 years of protection to
past and present copyrighted works and was upheld by the
Supreme Court a year ago. In less than a decade, the
much-ballyhooed liberating potential of the Internet seems
to have given way to something of an intellectual land
grab, presided over by legislators and lawyers for the
media industries. 

In response to these developments, a protest movement is
forming, made up of lawyers, scholars and activists who
fear that bolstering copyright protection in the name of
foiling ''piracy'' will have disastrous consequences for
society -- hindering the ability to experiment and create
and eroding our democratic freedoms. This group of
reformers, which Lawrence Lessig, a professor at Stanford
Law School, calls the ''free culture movement,'' might also
be thought of as the ''Copy Left'' (to borrow a term
originally used by software programmers to signal that
their product bore fewer than the usual amount of copyright
restrictions). Lawyers and professors at the nation's top
universities and law schools, the members of the Copy Left
aren't wild-eyed radicals opposed to the use of copyright,
though they do object fiercely to the way copyright has
been distorted by recent legislation and manipulated by
companies like Diebold. Nor do they share a coherent
political ideology. What they do share is a fear that the
United States is becoming less free and ultimately less
creative. While the American copyright system was designed
to encourage innovation, it is now, they contend, being
used to squelch it. They see themselves as fighting for a
traditional understanding of intellectual property in the
face of a radical effort to turn copyright law into a tool
for hoarding ideas. ''The notion that intellectual property
rights should never expire, and works never enter the
public domain -- this is the truly fanatical and
unconstitutional position,'' says Jonathan Zittrain, a
co-founder of the Berkman Center for Internet and Society
at Harvard Law School, the intellectual hub of the Copy
Left. 

Thinkers like Lessig and Zittrain promote a vision of a
world in which copyright law gives individual creators the
exclusive right to profit from their intellectual property
for a brief, limited period -- thus providing an incentive
to create while still allowing successive generations of
creators to draw freely on earlier ideas. They stress that
borrowing and collaboration are essential components of all
creation and caution against being seduced by the romantic
myth of ''the author'': the lone garret-dwelling poet,
creating masterpieces out of thin air. ''No one writes from
nothing,'' says Yochai Benkler, a professor at Yale Law
School. ''We all take the world as it is and use it, remix
it.'' 

Where does the Copy Left believe a creation ought to go
once its copyright has lapsed? Into the public domain, or
the ''cultural commons'' -- a shared stockpile of ideas
where the majority of America's music and literature would
reside, from which anyone could partake without having to
pay or ask permission. James Boyle, a professor at Duke Law
School, notes that the public domain is a necessity for
social and cultural progress, not some sort of socialist
luxury. ''Our art, our culture, our science depend on this
public domain,'' he has written, ''every bit as much as
they depend on intellectual property.'' 

In opposition to the cultural commons stands the
''permission culture,'' an epithet the Copy Left uses to
describe the world it fears our current copyright law is
creating. Whereas you used to own the CD or book you
purchased, in the permission culture it is more likely that
you'll lease (or ''license'') a song, video or e-book, and
even then only under restrictive conditions: read your
e-book, but don't copy and paste any selections; listen to
music on your MP3 player, but don't burn it onto a CD or
transfer it to your stereo. The Copy Left sees innovations
like iTunes, Apple's popular online music store, as the
first step toward a society in which much of the cultural
activity that we currently take for granted -- reading an
encyclopedia in the public library, selling a geometry
textbook to a friend, copying a song for a sibling -- will
be rerouted through a system of micropayments in return for
which the rights to ever smaller pieces of our culture are
doled out. ''Sooner or later,'' predicts Miriam Nisbet, the
legislative counsel for the American Library Association,
''you'll get to the point where you say, 'Well, I guess
that 25 cents isn't too much to pay for this sentence,' and
then there's no hope and no going back.'' 

There is a growing sense of urgency among the members of
the Copy Left. They worry that if they do not raise
awareness of what is happening to copyright law, Americans
will be stuck forever with the consequences of decisions
now being made -- and laws being passed -- in the name of
preventing piracy. ''We are at a moment in our history at
which the terms of freedom and justice are up for grabs,''
Benkler says. He notes that each major innovation in the
history of communications -- the printing press, radio,
telephone -- was followed by a brief period of openness
before the rules of its usage were determined and
alternatives eliminated. ''The Internet,'' he says, ''is in
that space right now.'' 


America has always had an ambivalent attitude toward the
notion of intellectual property. Thomas Jefferson, for one,
considered copyright a necessary evil: he favored providing
just enough incentive to create, nothing more, and
thereafter allowing ideas to flow freely as nature
intended. ''If nature has made any one thing less
susceptible than all others of exclusive property,'' he
wrote, ''it is the action of the thinking power called an
idea, which an individual may exclusively possess as long
as he keeps it to himself; but the moment it is divulged,
it forces itself into the possession of everyone.'' His
conception of copyright was enshrined in Article 1, Section
8 of the Constitution, which gives 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.'' 

But Jefferson's vision has not fared well. As the country's
economy developed from agrarian to industrial to
''information,'' ideas took on greater importance, and the
demand increased for stronger copyright laws. In 1790,
copyright protection lasted for 14 years and could be
renewed just once before the work entered the public
domain. Between 1831 and 1909, the maximum term was
increased from 28 to 56 years. Today, copyright protection
for individuals lasts for 70 years after the death of the
author; for corporations, it's 95 years after publication.
Over the past three decades, the flow of material entering
the public domain has slowed to a trickle: in 1973,
according to Lessig, more than 85 percent of copyright
owners chose not to renew their copyrights, allowing their
ideas to become common coin; since the 1998 Copyright Term
Extension Act lengthened present and past copyrights for an
additional 20 years, little material will enter the public
domain any time soon. 

Some of the changes that expanded copyright protection were
made with an understanding of their effects; what also
troubles the Copy Left, however, are the unintended
consequences of seemingly innocuous tweaks in copyright
legislation. In particular, two laws that were passed years
before the creation of the Internet helped set the stage
for today's copyright bonanza. Before the 1909 Copyright
Act, copyright was construed as the exclusive right to
''publish'' a creation; but the 1909 law changed the
wording to prohibit others from ''copying'' one's creation
-- a seemingly minor change that thereafter linked
copyright protection to the copying technology of the day,
whether that was the pen, the photocopy machine, the VCR or
the Internet. In 1976, a revision to the law dispensed with
the requirement of formally registering or renewing a
copyright in order to comply with international copyright
standards. Henceforth, everything -- from e-mail messages
to doodles on a napkin -- was automatically copyrighted the
moment it was ''fixed in a tangible medium.'' 

The true significance of these two laws didn't become
apparent until the arrival of the Internet, when every work
became automatically protected by copyright and every use
of a work via the Internet constituted a new copy. ''Nobody
realized that eliminating those requirements would create a
nightmare of uncertainty and confusion about what content
is available to use,'' Lessig explains, ''which is a
crucial question now that the Internet is the way we gain
access to so much content. It was a kind of oil spill in
the free culture.'' 

Lessig is one of the most prominent and eloquent defenders
of the Copy Left's belief that copyright law should return
to its Jeffersonian roots. ''We are invoking ideas that
should be central to the American tradition, such as that a
free society is richer than a control society,'' he says.
''But in the cultural sphere, big media wants to build a
new Soviet empire where you need permission from the
central party to do anything.'' He complains that Americans
have been reduced to ''an Oliver Twist-like position,'' in
which they have to ask, ''Please, sir, may I?'' every time
we want to use something under copyright -- and then only
if we are fortunate enough to have the assistance of a
high-priced lawyer. 

In October 2002, Lessig argued before the Supreme Court in
Eldred v. Ashcroft, which concerned a challenge to the
Copyright Term Extension Act. On behalf of the plaintiffs,
Lessig argued that perpetually extending the term of
copyright was a violation of the Constitution's requirement
that copyright exist for ''a limited time.'' The court
responded that although perhaps unwise on policy grounds,
granting such extensions was within Congress's power. It
was a major setback for the Copy Left. Given the Eldred
decision, there is nothing to stop a future Congress from
extending copyright's term again and again. 

Lessig's efforts haven't been limited to the courtroom. In
2001, he was part of a group that founded an organization
called Creative Commons, which offers individual creators
the ability to carefully calibrate the level of control
they wish to maintain over their works. The organization
services the needs of, say, musicians who want rappers and
D.J.'s to be able to download and remix their music without
legal trouble or of writers who want their works
republished without charge, but only by nonprofit
publications. The Commons has developed a software
application for the Web that allows copyright holders who
do not want to exercise all of the restrictions of
copyright law to dedicate their work to the public domain
or license it on terms that allow copying and creative
reuses. The aim of Creative Commons is not only to increase
the sum of raw source material online but also to make it
cheaper and easier for other creators to locate and access
that material. This will enable people to use the Internet
to find, for example, photographs that are free to be
altered or reused or texts that may be copied, distributed
or sampled -- all by their authors' permission. The
Creative Commons now has a presence in 10 countries,
including Brazil, whose minister of culture, the musician
Gilberto Gil, plans to release some of his songs under the
Creative Commons license so that others may freely borrow
from them. Creative Commons is currently talking to Amazon
and others about a plan to release out-of-print books under
Creative Commons licenses. 


One of the central ideas of the Copy Left is that the
Internet has been a catalyst for re-engaging with the
culture -- for interacting with the things we read and
watch and listen to, as opposed to just sitting back and
absorbing them. This vision of how culture works stands in
contrast to what the Copy Left calls the ''broadcast
model'' -- the arrangement in which a small group of
content producers disseminate their creations (television,
movies, music) through controlled routes (cable, theaters,
radio-TV stations) to passive consumers. Yochai Benkler,
the law professor at Yale, argues that people want to be
more engaged in their culture, despite the broadcast
technology, like television, that he says has narcotized
us. ''People are users,'' he says. ''They are producers,
storytellers, consumers, interactors -- complex, varied
beings, not just people who go to the store, buy a packaged
good off the shelf and consume.'' 

A few weeks ago, I met Benkler in his loft in downtown New
York. He stroked his beard while explicating his ideas with
the care of a man parsing a particularly knotty question of
Scripture. Benkler was born in Tel Aviv in 1964, and while
in his 20's, he helped found a remote desert kibbutz in an
attempt to recapture the Zionist movement's original
socialist spirit. The challenges of creating a community in
isolation from the rest of society ultimately proved
overwhelming. ''After a few years,'' he said, ''we realized
that at the rate we were going we wouldn't attend college
until we were in our 50's.'' It was a hard lesson in the
difficulty of producing anything -- a community, a work of
art -- in isolation. 

But Benkler's belief in the importance of creating things
in common rests on more than anecdotal evidence. What makes
his argument more than wishful thinking, he said, is that
he has some economic evidence for his view. ''Let's compare
a few numbers,'' he said. ''How much do people pay the
recording industry to listen to music versus how much
people pay the telephone industry to talk to their friends
and family? The recording industry is a $12 billion a year
business, compared with the telephone business, which is a
more than $250 billion a year business. That is what
economists call a 'revealed willingness to pay,' a clear
preference for a technology that allows you to participate
in work, socializing and interaction in general, over a
technology that allows you to be a passive consumer of a
packaged good. Is that a study of human nature? No. Is it
an economic measure that would suggest there is a lot of
demand out there for speaking and listening to others?
Yes.'' 

According to Benkler, the cultural commons not only offers
a better model for creativity; it makes good economic
sense. Like Lessig and other members of the Copy Left, he
takes his bearings from the free software movement and
views the success of products like Linux and services like
Google as evidence of a viable collaborative (or ''peer to
peer'') model for producing and sharing ideas -- a model
that will augment and, in some cases, replace the current
model. (He concedes that some products, like novels and
blockbuster movies, will never be produced peer to peer,
though they will draw on the work of artists before them.) 

Benkler predicts that the recording industry will be one
of the first businesses to go. ''All it does is package and
sell goods,'' he said, ''which is technically an unfeasible
way of continuing. They are trying their best to legislate
the environment to change, but that doesn't mean we have to
let them.'' 


The battle between the Copy Left and its opponents is as
much a clash of worldviews as of legal doctrine. Aligned
against the Copy Left are those who sympathize with the
romantic notion of authorship and view the culture as a
market in which everything of value should be owned by
someone or other. Jane Ginsburg, a professor at Columbia
Law School who specializes in copyright law, fears that in
the Copy Left's rush to secure the public domain, it gives
short shrift to the author. A self-described ''copyright
enthusiast,'' Ginsburg considers the author the moral
center of copyright law and questions equating copyright
control with corporate greed. ''Copyright cannot be
understood merely as a grudgingly tolerated way station on
the road to the public domain,'' she writes in a recent
article titled ''The Concept of Authorship in Comparative
Copyright Law.'' ''Because copyright arises out of the act
of creating a work, authors have moral claims that neither
corporate intermediaries nor consumer end-users can
(straightfacedly) assert.'' 

Ginsburg and others embrace many elements of the
''permission society'' demonized by the Copy Left and cite
developments like the iTunes store as a sign of greater
consumer choice and freedom. In his book ''Copyright's
Highway,'' Paul Goldstein, a professor at Stanford Law
School, writes that ''the logic of property rights dictates
their extension into every corner in which people derive
enjoyment and value from literary and artistic works.'' He
characterizes the permission society as a ''celestial
jukebox'' in which access to every creation -- music,
literature, movies, art -- is available to anyone for a
price. 

An entire ''digital rights management'' industry has arisen
to bring this vision to fruition, each company calibrating
a particular license through a system of micropayments --
play a song on your computer for one price; transfer it to
your MP3 player for a slightly higher fee. Goldstein argues
that the scheme of a business like iTunes is actually more
efficient and democratic than the commons model championed
by the Copy Left. ''The problem with the commons is that it
doesn't take into consideration the direction of the
payment; it doesn't reveal what kind of culture gets used
and what kind doesn't,'' he says. ''I think it is good to
have a price tag attached to each use because it tells
producers what consumers want; it lets them vote with their
purchase for the kinds of culture they want.'' 

But the Copy Left is convinced that there is a better way
for the entertainment industry to adapt to the Internet age
while still paying its artists their due. William Fisher,
director of the Berkman Center, has spent the last three
years devising an alternative compensation system that
would enable the entertainment industry to restructure its
business model without resorting to cumbersome
micropayments. He has worked out a modified version of the
system that artists' advocacy groups currently use to make
sure that composers are paid when their music is performed
or recorded. According to Fisher's plan, all works capable
of being transmitted online would be registered with a
central office (whether government or independent is
unclear). The central office would then monitor how
frequently a work is used and compensate the creators on
that basis. The money would come from a tax on various
content-related devices, like DVD burners, blank CD's or
digital recorders. It is a brave proposal in a political
culture that is allergic to taxes and uncomfortable with
complex solutions. Still, if his numbers do indeed add up,
Fisher's proposal might be the best thing that ever
happened to the cultural commons: the creators would be
paid, while every individual would have unlimited access to
every cultural creation. 

Fisher and Charles Nesson, his colleague at Harvard Law
School, have showed this proposal to movie executives and
lawyers for several media conglomerates. Fisher says that
his ideas have been received with great interest by the
very industries -- music, home video -- that see their
business models disintegrating before their eyes. 

When asked whether he thinks his ambitious scheme has a
chance, Fisher says that the likeliest possibility would be
for it to be adopted in countries that are neither so
developed that they have signed on to international
copyright protocols nor so undeveloped that they are
desperate to do so. Only second-world countries, like
Croatia or Brazil, he speculates, are unfettered enough to
try something new. ''The hope is in the rain forest,'' he
says, in countries that ''are more like the United States
was before 1890, when we were a 'pirate' nation.'' 

And in the United States, is there any future for this sort
of payment system? Perhaps when the various current schemes
fail, Fisher's plan will seem more attractive, he says.
''What is involved here is nothing less than the shape of
our culture and the way we think of ourselves as
citizens,'' he adds. He describes a recent letter he
received from a supporter of his work. ''When they come for
my guns and my music, they'd better bring an army,'' it
read. ''People are used to being creatively engaged with
the culture,'' Fisher explains. ''They won't let someone
legislate that away.'' 

The future of the Copy Left's efforts is still an open
question. James Boyle has likened the movement's efforts to
establish a cultural commons to those of the environmental
movement in its infancy. Like Rachel Carson in the years
before Earth Day, the Copy Left today is trying to raise
awareness of the intellectual ''land'' to which they
believe we ought to feel entitled and to propose policies
and laws that will preserve it. Just as the idea of
environmentalism became viable in the wake of the last
century's advances in industrial production, the growth of
this century's information technologies, Boyle argues, will
force the country to address the erosion of the cultural
commons. ''The environmentalists helped us to see the world
differently,'' he writes, ''to see that there was such a
thing as 'the environment' rather than just my pond, your
forest, his canal. We need to do the same thing in the
information environment. We have to 'invent' the public
domain before we can save it.'' 




Robert S. Boynton, director of the graduate magazine
journalism program at New York University, is writing a
book about American literary journalism. 

http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html?ex=1076046236&ei=1&en=acc3da72efb2d7e1


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