Chapter One: How Congress Created YouTubeand Media's Big Problem
In March 2007, the former Clinton administration official who helped shape the Internet as we know it finally admitted his policy hadn't worked.
Hunched over a tabletop microphone at a copyright conference hosted by McGill University in Montreal, Canada, Bruce Lehman talked about the effects of a law hated by most of the academics in his audience. As Clinton's commissioner of the United States Patent and Trademark Office, Lehman ran the National Information Infrastructure Task Force Working Group on Intellectual Property Rights. Assigned by the White House to set rules of the road for the emerging Internet, he championed policies that became the 1998 Digital Millennium Copyright Act, a law that was supposed to extend copyright to the online world without slowing its growth. Instead, it became a prime example of the law of unintended consequences.
"Unfortunately, at least in some areas, our policies haven't worked out too well," Lehman admitted, looking vaguely uncomfortable in a tan jacket and red tie. He put some of the blame on music and movie companies that didn't act quickly enough to develop new business models for the digital age. But considerable blame also goes to the law he helped design.
The Digital Millennium Copyright Act, a compromise between media conglomerates on the one hand and telecom companies on the other, devastated the first group and helped the second soar. As Lehman recommended, the law makes it illegal to circumvent copy-protection technology, such as the encryption on DVDs and some digital downloads, or distribute a tool to do so. It also gives "safe harbor" to Internet service providers and some online companies so they're not liable for copyright infringement based on the actions of users. That safe harbor made it easier for sites like YouTube to become valuable forums for amateur creativity. But it also let them build big businesses out of professional content they didn't pay for.
Until he started working on the Clinton administration's online policy, Lehman was best known as the first openly gay man to get a high-level government position through the Senate confirmation process. But his role as head of the patent office gave him significant authority. The top U.S. copyright official is the register of copyrights, who works in the Library of Congress, in the legislative branch of government. So Lehman emerged as the closest thing the executive branch had to a "copyright czar."
Many of the professors in Lehman's audience believed the law's "anticircumvention" provision interferes with free speech, since it makes it difficult to digitally copy music or movie scenes in order to remix or excerpt them for purposes of commentary. But Lehman was more upset that the music business was dying and other parts of the entertainment industry were facing similar problems, because the anticircumvention policy he pushed for didn't make up for the devastation caused by the safe harbor provision to which he reluctantly agreed.
Like most of the government officials he worked with in the Clinton administration, he thought digital technology would help the U.S. media business, not threaten to destroy it.
Although it might seem hard to believe now, there was a time when copyright law was of interest mostly to copyright lawyers. It's a complicated topic, intellectually abstract even to most attorneys. But as digital technology makes it faster and easier to copy music and movies, consumers are more inclined to wonder when exactly they're breaking the law.
The answers aren't always obvious. Duplicating a CD may or may not be legal, depending on the purpose of the copy. (DVDs, which have copy protection, are covered by the Digital Millennium Copyright Act.) Many other issues raised by new technology fall into a gray area, and the prohibitive cost of litigation tends to keep some of them there for a while.
In the United States, the Constitution 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." Over the years, that definition grew to include film and musicfirst compositions, then recordings. And Congress repeatedly extended those "limited Times," from twenty-eight years to, in 1976, fifty years after the death of the author.
In the United States, copyright is primarily an economic instrument, a government-granted monopoly on the right to sell a workfor a limited time and with some exceptions. Until recently, the media business controlled its products by maintaining the exclusive right to copy themhence, copyright. Depending on the nature of the work in question, this can include the right to reproduce, distribute, perform, and display it. When media was distributed physicallyon paper or on discthe first two mattered most and almost always overlapped.
To understand copyright as a monopoly, think of a performer like Bruce Springsteen, whose recordings are owned by Columbia Records under the terms of his recording contract, which assigns those rights to the label. In practical terms, Columbia has the exclusive right to sell his recordings. Since the market has only one legitimate supplier of Springsteen albums, the label can basically set its price. This monopoly is meant to compensate Columbia for investing in Springsteen, who in turn receives royalties as well as marketing and promotional support. Like any monopoly, copyright keeps the price of Springsteen albums higher than they otherwise would be, especially if they could be freely transferred online. But the monopoly is very narrow; it doesn't extend to rock anthems about New Jersey, or even to other artists' recordings of Springsteen's songs. And by allowing artists to make money on their workeither by selling it or by making an arrangement with a company that cancopyright gives them an incentive to produce more of it.
Although the logic behind copyright hasn't changed much, the laws themselves have always adjusted to new technologies, from piano rolls to cable television. Until relatively recently, most conflicts about copyright laws involved companies within, or at least close to, the businesses that depended on them. When songwriters wanted to make sure they received royalties when other performers recorded their compositionsa right they were granted in the Copyright Act of 1909they faced off against another part of the music business. The opposing companies didn't challenge the thinking behind copyright, because their own businesses relied on it as well.
The copyright dispute that changed thatand set the stage for the battles over the online worldwas Sony Corp. of America v. Universal City Studios Inc., sometimes called the Betamax case. In 1976, several movie studios sued Sony to establish that the company, which did not own a studio itself at the time, would have secondary liability for copyright infringement committed with its videocassette recorder. (Sony's Betamax was a proprietary technology that quickly lost market share to the VHS.) After eight years of legal battles, the Supreme Court essentially legalized the VCR in a 5-4 ruling that held Sony wasn't subject to liability on the grounds that the device was "capable of substantial non-infringing uses."
The Betamax case was the first major legal issue to set copyright holders against an industry with interests radically different from their own. Beneath all the overheated rhetoricthe Motion Picture Association of America's chief executive, Jack Valenti, famously said, "The VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone"the dispute had its roots in an economic conflict very much like the one that exists online today. Movie studios wanted to sell films in a format that couldn't also be used to copy them, such as the LaserDisc technology introduced in 1978. (Whether this could have succeeded in a market without the VCR is hard to know.) Electronics makers realized that consumers preferredand might pay more fora machine that could also record movies and television shows.
The Betamax case also shows why secondary liability is both important and controversial. No one disputed that it was illegal to duplicate a store-bought videocassette in order to sell copies, just as no one disputes the illegality of uploading an entire television show to YouTube today. But it's impractical, if not impossible, to police this kind of private behavior. So although neither Sony nor YouTube would commit direct copyright infringement, rights holders had an interest in holding them liable for secondary copyright infringement. In some cases, when a particular tool can be used for practically anything, this seems absurd: no one seriously suggests that carmakers should be liable if their vehicles are used in robberies. But it seems equally unrealistic to argue that a Web site called the Pirate Bay should have no responsibility whatsoever for the infringement it encourages. No auto manufacturer has ever marketed a product called the Getaway Car, complete with a device that switches license plates while the vehicle is in motion in order to evade police.
The Supreme Court's Betamax decision also complicated copyright by holding that "time-shifting"recording broadcast television for later viewingqualified as "fair use." The judicial doctrine of fair use provides an exception to copyright law to prevent it from placing undue limits on free speech. It allows journalists, scholars, and artists to quote or excerpt works in order to comment on them. (How much can be taken legally depends on the purpose and length of the excerpt, the nature of the work itself, and its effect on the work's value.) By deciding that it also applied to consumers' use of media, the Supreme Court opened up a range of issues that are still being debated today.
Although many anticopyright activists refer to fair use as a right, it's really an affirmative defense of copyright infringementthat is, one that acknowledges the act was committed but maintains that it's legal. "People who call it a right are just doing that to emphasize their politics," says David Nimmer, a UCLA Law School professor who with his father wrote Nimmer on Copyright, a treatise that has become the standard reference work on the subject for lawyers.
As soon as Lehman introduced the idea of an anticircumvention law in 1994, fair use became a rallying cry for activists who claimed that music and movie companies were trying to restrict italong with free speech. If it became illegal to crack copy-protection systems, consumers wouldn't be able to make otherwise legal backup copies for personal usea reasonable concern for $200 software packages but not really such a big deal for $15 DVDs. More important, some argued, it would be impossible to express ideas by remixing music or quoting text.
Courts have not agreed, since those who want to comment on a work using the work itself can retype a passage of text or record music on tape. When defendants who had distributed the code that unlocks DVDs argued that the Digital Millennium Copyright Act represented an unconstitutional restriction of fair use, the court rejected this as an "extravagant claim." "We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original." Desirable as it might be, convenience is not a right.
As with the Supreme Court's Betamax case, the debate over the Digital Millennium Copyright Act was an economic conflict dressed up in rhetoric about rights. On one side were the major labels and studios, at the height of their power and with good connections in the White House. On the other were electronics manufacturers, telecom companies, and Internet idealistsgroups that hadn't yet worked together and didn't even seem to have much in common. But they would end up influencing the law just as much.