Siva Vaidhyanathan On Copyrights and Wrongs 215
Jason Haas writes: "While bad copyright laws such as the DMCA are having strong negative consequences, an even worse bill, the Consumer Broadband and Digital Television Promotion Act (CBDTPA), is now before Congress. The CBDTPA would have radical effects upon many of the devices that we take for granted -- including the computer you are now reading this on. Bad copyright law is among the many things that we talked about. Siva Vaidhyanathan has a thing or two to say about this. An avid defender of peer-to-peer, Siva recently debated one of the MPAA's top lawyers on copyright law. A recorded version of this will be available on the web in late May.
Furthermore, he has written Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, the first fully fleshed history of American copyright law ever to be put in book form. The cool thing about this book is that although it's about copyright law, you don't have to be a lawyer to understand it. Copyrights and Copywrongs covers American copyright law's origins in seventeenth century English law, tracks Mark Twain's efforts to extend copyright in the nineteenth century, and ends at the dawn of the twenty-first century with the rise of Napster and the DMCA."
Jason Haas: How are you?
Siva Vaidhyanathan : Stressed. I'm trying to finish my second book, which will likely be called "The Anarchist in the Library." Basic Books will publish it next year.
JH: That sounds like it may be of interest to Slashdotters.
SV: Probably. I lifted many of the insights from Slashdot posts. The book will be an examination of the battles between efforts to centralize information and efforts to decentralize information. It starts with peer to peer, and moves on to battles over encryption, the commercialization and regulation of science, the regulation of algorithms, and the efforts to fight terrorism using information policy. One of the most interesting stories I'm following is the role that encryption plays on both sides of these battles. Some efforts to centralize and control information rely on encryption. For example, DVDs, and some efforts to distribute and liberate information (Freenet) depend on encryption.
JH: Your book, Copyrights and Copywrongs, covers the evolution of copyright law from its origins to the late twentieth century. Where did you get the idea for this?
SV: From rap music. I grew up with rap music. But in the early 1990s I noticed the music was changing. Everyone else was paying attention to the lyrics -- the sexism and the violence and the anger. I was observing how the underlying body of samples were getting thinner, more predictable, more obvious, less playful. I had heard that there had been some copyright conflicts in 1990 and 1991. So I suspected that lawsuits had chilled playful and transgressive sampling. I was right. The courts had stolen the soul. And rap music is poorer for it. We used to get fresh, exciting, walls of sound that were a language unto themselves. By the mid-1990s, all we got were jeep beats and heavy bass.
JH: Are you dissing Ice Cube?
SV: [laughs] No! He's an O.G.! He and other artists are handcuffed by the law. From my research on rap, I got curious about the evolution of American copyright law and how it altered and got altered by the rise of different media technologies and forms of expression. So I traced the changes from the 19th century publishing industries through the rise of film and television, through blues, jazz, rock, and rap, and finally to the digital moment.
JH: The book ends just after the DMCA has gone into effect and Napster has begun its rise. What's happened since then?
SV: I knew that Napster would radically change the ways we interact with the copyright system. And I knew the DMCA would radically undermined the democratic safeguards that were built into our copyright system. But I knew that there was much more to this story. So I wrote an article for The Nation which defended Napster and peer-to-peer. I used this as the starting point for what would become the second book.
JH: In your first book, you refer to the DMCA as an example of what you call a "thick" copyright law. Can you explain the difference between "thick" copyright law and a "thin" law?
SV: I think the DMCA (Digital Millennium Copyright Act) is misnamed. I don't consider it a copyright act. I consider it an anti-copyright act. Copyright is a fluid, open, democratic set of protocols. Conflicts are anticipated by Congress and mediated by courts. The DMCA wipes out the sense of balance, anticipation, and mediation, and installs a technocratic regime. In other words, code tells you whether you can use a piece of material. Under copyright, you could use a piece of material and face the consequences. The DMCA replaces the copyright system with cold, hard technology.
It takes human judgment out of the system and drains the fluidity out of what was a humanely designed and evolved system.
But getting back to thick and thin copyright.
One way to measure the thickness of a copyright law is to look at the duration of protection. If works enter the public domain before an author's life expectancy expires, then it's a thin and democratic system. If the duration of copyright protection is absurdly long and potentially indefinite, then it's way too thick.
JH: Senator Fritz Hollings' has introduced a new copyright bill to Congress, the Consumer Broadband and Digital Television Promotion Act. What what would it do? Is it another "thick" law?
SV: Yeah, it would be as thick as the Berlin Wall. But again, it's the extension of a technocratic control regime and a further abandonment of real copyright. All the attention this bill has received has generated an impressive movement for users' rights. People are finally waking up to the fact that their rights to make private, non-commercial use of material they buy is in danger. I think we should all thank Senator Hollings and the MPAA for sparking a revolt against copyright tyranny.
The title of the bill implies that by giving movie companies what they want, they will give us this wonderful library of streamed films, and we will finally have a reason to sign up for and pay for broadband. Paradoxically, nothing sells broadband like peer-to-peer, which is exactly what it would try to stop.
JH: CBDTPA would make a new computer ship with copy protection. What would it do to things like the iPod?
SV: The iPod would be hard to justify under the new law. But the real issue is the personal computer. The computer does three basic things: it does math, it stores data, and it copies data. A computer can't operate without those three basic functions. The law would limit these three basic functions, thereby cutting the Achilles heel of the PC. It would be just another appliance.
JH: It's that bad?
SV: Yes. If the law passes, I could send you a file that I made, but the machine would prevent you from making copies of just about anything else, including sound from web sites, video from web sites, etc. The law works completely for the benefit of big media companies that can afford to conform to the licensed encryption standards of the industry. Only the big boys could benefit from this law.
The law would only affect new stuff, so it'd be your next DVD players, your next TiVo, your next PC. The stuff you have now is going to do more and work better than any hardware that anyone could roll out after the law passes. But there's another, bigger issue. According to an early version, the bill covers not just hardware but software. Under it, you can't distribute a software package that has copy features. Furthermore, how in the world can anything released under the GPL have closed copy-protection standards embedded in it? It can't. It would make the GPL illegal, and future versions of Linux illegal. Even if Congress focused on hardware and excluded software, we all know that distinction is a matter of modular convenience and industry practice rather than a natural distinction. But nobody ever accused the U.S. Senate of understanding technology or thinking through long-term effects of tech policy.
JH: What can people do to stop this bill from passing?
SV: The first thing people should do is check out and support such organizations as the Electronic Frontier Foundation, digitalconsumer.org, and publicknowledge.org. The latter two are fairly new. And they are a sign that people are getting angry and active about these issues. I am particularly excited about publicknowledge.org, a public interest advocacy group that is coordinating and publicizing the concerns of a wide array of concerned citizens and groups.
But just as importantly, discuss this measure with your local librarians. Librarians are very active in opposing it. In 1998, very few groups actively opposed the DMCA, but librarians were at the front lines of its opposition. And once again, librarians are our best friends in this battle. And of course, the simple answer is, write members of the Senate Judiciary Community. [The American Library Association is a national organization of librarians that is active in defending freedom of information and access. The Senate Judiciary Committee can be found over here.]
If public anger doesn't stop this bill now, then we know that the corrupting power of the entertainment industries is at crisis level. The changes in copyright have not been great for our culture and our democracy. But I am optimistic that this new level of awareness and activism will make a difference.
Jason Haas retired from the computer industry in April 2001, and now juggles being a student, fatherhood, and progressive political activism.
This past year, Siva Vaidhyanathan has been an assistant professor in the School of Library and Information Studies at the University of Wisconsin, but is moving to New York University in the fall. The web page for his book, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, is at NYU Press.
Being serious for a change... (Score:3, Insightful)
But as history has shown, they __CAN__ pass these laws. And they have. And unless we start a fund to buy ourselves our own politician, know that the RIAA and MPAA are saying "All your politicians are belong to us!".
We do need to be vocal about this, but not just in
Become a member of The Electronic Frontier Foundation [eff.org] or of one of the other sites mentioned in the article. Let your voice be heard!!
---
Strong with you, the force be. -Yoda
Well put. (Score:5, Insightful)
There are intentional limitations to the power an author holds over his/her respective copyrighted works. These limitations exist to encourage other individuals or companies to expand and build upon those copyrighted ideas/works, thereby increasing innovation and promoting scientific development for the benefit of the public. The most important limitation on author control is the "fair use privilege". This right of the people specifically addresses the ability of an individual to use copyrighted works without consent of the owner to a reasonable degree. In Sony v. Universal City Studios; the U.S. Supreme Court stated that, "any individual may reproduce a copyrighted work for a 'fair use;' the copyright owner does not possess the exclusive right to such a use." This "doctrine of fair use" was initially created via judicial review, but has since been intentionally written into copyright law. Although this principle may seem to be counterintuitive to the overall premise of copyright, it is an extremely important link between the inventor who wishes to recieve payment for his work, and the public that wishes to access and make use of it. The U.S. Supreme Court remarks, ""the fair use doctrine exists because copyright law extends limited proprietary rights to copyright owners only to the extent necessary to ensure dissemination to the public." This is directly correlated to the goals of the constitutional explanation of copyright.
The obvious issue associated with this doctrine is how exactly to detirmine what is fair use as opposed to copyright violation. The law is not at all clear as to how a process is to be determined "fair use", but over the years many examples have surfaced. In general, criticism, comment, parody, new reporting, teaching, scholarship, research, or personal use such as time of format shifting are considered to be within the guidelines of fair use. Companies have in the past been relatively acceptant of the fair use clause within copyright law. As of late though, the tide has shifted as corporate profits have taken an ever increasing priority over public relations and proper customer satisfaction. Older ethical standards for customer rights have become less important to business executives then their efforts to increase profit margins and market domination.
Just how exactly media corportions lost site of the usefulness of this doctrine is beyond me. Think of video rental stores: They facilitate piracy. With two VCRs I could own every movie under the sun for about 5 bucks a pop. I don't. Both is it not worth the time to pirate, but it is also easier to pay the extra coin to ensure a good copy. People will pay to support media they like and to ensure good quality fun. They will NOT pay for over-priced crap forced down their throats.
Likewise (and perhaps more importantly), it is idiotic of the RIAA to assume that every person downloading an MP3 is a "diehard" pirate. Since the media companies have not ventured into this new market (digital music) they facilitate the piracy better than any P2P network could.
I will not support corporate theivery.
-----------------rhad
Changing notions of copyright (Score:4, Insightful)
The new notion of copyright seems to be based on a cyptographically and legally enforced "secure pipeline" from the content creator to each individually authorized end user. All new developments trend towards this end. Unauthorized viewing is as serious as unauthorized copying, in fact the distinction often disappears. The right to make a living from printing and selling a creative work has been replaced by the right to control how a creative work is used, and to be compensated for each use, every step of the way.
It is an entirely new paradigm, and if it succeeds in establishing itself, an entirely new information economy will result. Unfortunately, free speech will be an early casualty. Orwell's 1984 will no longer be a dystopian speculation, but a first-year business text.
Minor correction (well, not so minor actually) (Score:4, Insightful)
ahem. No.
The original concept of copyright was instituted by the British Monarchy to facilitate authoritarian control over the then-emergent printing press, by requiring all works to 'register themselves' and provide certain information making the publisher known, accessible, and ultimately accountable to the Crown if they printed something the Crown found offensive. It was a means of controlling the printing press (by banning unauthorized printing presses) and, most importantly, controlling what was printed.
In other words, copyright was designed from the beginning to do exactly what it is becoming most famous for doing today: facilitate censorship.
Later refinements insured the profitability of those publishers so "blessed" by the crown, by setting up a book in which they could register works they were publishing so that the oligarchs wouldn't be competing with one another.
It wasn't until much later that the justification of "protecting the artist's right to profit from their works" was introduced, almost as an afterthought, well after the publishing oligarchy was well entrenched and generally as a way to mitigate criticism in some quarters with respect to the restritive (and monopolistic) nature of copyright. Unfortunately for the artists, copyright law then, as now, favors the publishers over the authors in most respects, belying its real intent (today: the maintenance of the copyright cartels and oligarchs, then: the maintenance of the authority of the Crown over what information was, and was not, available in print).
The United States adopted both copyright and patent law more or less intact from our former British overlords, with little questioning of the propoganda that justified such strictures (Thomas Jefferson was a rare exception who did question, and criticize, both concepts). The British Empire rose upon the force of tightly controlled trade monopolies and ultimately met its demise when said force, coupled with their weakening navel power to enforce it, couldn't withstand the pressures of a more open, modern marketplace. It is interesting that the two most restrictive, dangerous democracy-threatening aspects of American law both have their roots in British monopoly regimes we adopted more or less unchanged and without question.
The new notion of copyright seems to be based on a cyptographically and legally enforced "secure pipeline" from the content creator to each individually authorized end user.
Again, this is really only new in form, not in underlying substance. There have even been people drawn and quartered for copyright violation in England, and more recently, at the turn of the 20th century shopkeepers were beaten, businesses burned, and people perhaps even killed for copyright violations when the copyright holders of musical scores hired thugs to enforce their copyrights in accordance to a new law granting them such powers. Coercion has always been a part of copyright, as it must be since it creates an unnatural monopoly and artificial scarcity out of something which is inherently bountious (information).
if it succeeds in establishing itself, an entirely new information economy will result. Unfortunately, free speech will be an early casualty. Orwell's 1984 will no longer be a dystopian speculation, but a first-year business text.
That economy is likely to be relatively short lived and short circuit itself. Monopoly economies never operate at anything approaching the effeciency of an open, more or less free market, and there is only so much people are willign to spend, and so many hoops people are willing to jump through, before they will simply say "to hell with it, I'll do without." The Copyright Cartels, if they get what they want, will likely make far less than will if freedom of information wins out. It is similar to when they tried to ban videotape, only to have more than half their profits coming from video tape sales and rentals a decade later. Multiply that by a dozen emergent technologies, and who knows how many more that will never emerge if "Disney" Hollings has his way.
You are right, though, the first casualty of the New American Copyright will almost certainly be freedom of speech, exactly as copyright was designed to do in the first place, four centuries ago.
Re:Random thought (Score:2, Insightful)
If you and I each have an idea, and we share ideas, after sharing we each have two ideas.
Ideas
Re:what a load of crap (Score:1, Insightful)
Re:origins of US copyright (Score:5, Insightful)
Far from freeing itself from oppressive monopolies, the framers of the US constitution used the British copyright law as a model. The controlled press to which you make rather hysterical reference in fact lapsed in 1694. It was replaced by the Statute of Anne in 1709, intended to free the press while protecting the rights of authors.
Attempts were made by copyright holders to increase their power, including extending the term from the then 14 year period to permanence, but these were struck down by Parliament in 1774. These issues were therefore much in the mind of the framers, and, as with the Bill of Rights, they made free use of the example set.
Perhaps the UK should have copyrighted the civil law book?
Reference: Law Professors Amicus Curiae in DMCA Case [eff.org]
This is the third War (Score:1, Insightful)
We are not cows. To spend our lives pent up waiting for death. We are wolves. And wolves, unlike cows, roam freely. The spirit of our country has always been thus. Our forefathers gave their lives to ensure this. But now, like Judas, those we have entrusted to protect our freedom have betrayed us. How many indignities must there be before we say enough? I say - enough.
Write, call, speak. Let your voice be heard. Before it is too late.
You Americans think this is bad.... (Score:2, Insightful)
US passes law.
Aust citizens protest and are ignored because "the US did it" so:
Aust passes same law drafted even worse.
I never thought I'd say this, but at least for Australia, US citizens really can "save the world".
*sigh*