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“Fair use” rights on the Internet(fighting for free culture)
Lee Tien
Electronic Frontier Foundation
www.eff.org
DragonCon 2002
Legal focus
• Copyright law, esp. “indirect infringement”
• Digital Millennium Copyright Act (DMCA)– Anti-circumvention acts– Anti-circumvention technology
• You can’t show others how to do it
• Legal basis for DRM . . . .
DRM policy issues
• Who controls technology and innovation?
• Who controls speech?
• Who controls culture?
Lessig’s refrain: free culture
• Creativity and innovation always build on the past
• The past always tries to control the creativity that builds on it
• Free societies enable the future by limiting this power over the past
• Ours is less and less a free society
This isn’t about wiping out CR!
• “free” as in free software, not free beer
• Artists must survive and thrive
• It’s about restoring balance to CR
• Consumer rights
• Technologists’ rights
• Public domain is a cultural commons
In 1790, culture was free
• Copyright only covered printing
• Didn’t cover derivative works
• CR lasted only 14 years!
• CR was very limited business regulation
“Fair use” misleading
• CR about copying
• We do lots with works that aren’t copying
• Reading isn’t “fair” use, it’s unregulated use
• Only some uses are even regulated by CR
• “Fair use”: unauthorized regulated uses
• Unregulated, regulated, and fair uses
• Miss the point if focus only on fair use
Really a fight for unregulated use
• But I’ll call both fair use• If “absolute” CR, these would be illegal• Playing a song — singing a song —filksinging• Copying news article for your files• Clipping a movie frame for a review• Reverse-engineering computer program• Cutting out cartoon and pasting it on office door
What are we doing about it?
• 2600 (DVD/DeCSS)
• Felten v RIAA; Xbox
• Sklyarov/ElcomSoft
• ReplayTV: consumer fair use
• MusicCity/Morpheus: P2P innovation
• BPDG: SSSCA/CBDTPA/broadcast flag
Background of culture control
• Patent protects ideas/inventions
• CR protects expression (not ideas or facts)
• DMCA protects “access” (digital locks)
• Pseudo-IP law– Trade secret really contractual– Trademark really unfair competition– “Trespass to chattels”
Content owners’ rhetoric
• IP = property
• All unconsented uses = theft
• If might reduce revenues = theft
• Like skipping commercials on TV
• Copyrighted works have never been like other property!
CR is a bargain
• Authors’ rights are means to an end
• Promote progress of science and arts
• Authors get fair return
• Consumers/public get unregulated, fair uses– We can talk about and use others’ ideas– Eventually expression enters public domain
• Public interest in anti-monopoly
Author v. consumer rights
• Copying, adaptation, distribution, public display/performance (many exceptions)
• No rights over private display/performance
• No rights over unregulated uses/facts/ideas
• “Limited” times
• “First-sale” for lawful copies
• Fair use
1928: Disney created Mickey
• Mickey Mouse in “Steamboat Willie”
• Parody of Buster Keaton’s “Steamboat Bill”
• Would Walt call this “theft” today?
• What about Grimm’s Fairy Tales?
• Disney empire built on others’ works
• Creativity, not “theft”
Massive expansion of CR
• 14 years in 1790 (renew for 14 if alive)
• 42 years in 1831
• 56 years in 1909
• Expanded 11 times since 1962
• Today: life of author + 70 years
• Plus: scope of CR much broader
Today’s insanity
• Documentary film on education in America
• Shot classroom with TV playing in back
• Film shows 2 seconds of Homer Simpson
• Calls Matt Groening (friend): no problem
• But lawyers said $25,000
• And we haven’t even gotten to the Internet
refrain
• Creativity and innovation always build on the past
• The past always tries to control the creativity that builds on it
• Free societies enable the future by limiting this power over the past
• Ours is less and less a free society
Why does EFF care?
• 3 big modern tech changes
• Everyone thinks about Internet transmission
• #2: w/computers, all copies, all the time
• Presumptively all you do on machine or network is regulated use (copy to read)
• We’re left arguing about tiny bit of fair use
• What about ordinary unregulated uses?
Tech change #3
• Electronic works need devices to play/read
• Control of use can be built into tech
• IP owners always knew this
• But not as long as tech makers independent
• Reverse-engineering = right to tinker
• Total control requires control of tinkering
EFF’s concern: culture control
• DRM upsets CR bargain
• All uses regulated by law + tech
• IP can censor (less use of DRMed works)– Chokepoint pressure (Scientology v Google)
• Harm to competition
• Harm to innovation
Betamax: last great CR case
• We usually think about direct infringement
• But also indirect– Contributory: knowledge + material contrib– Vicarious: control + financial benefit
• Betamax raised Q: what about devices?– Movie studios wanted to stop VCR because
could be used to infringe
1984 Supreme Court decision
• “time-shifting” = fair use• More important: can’t bar device for indirect infringement if– “capable of substantial non-infringing uses”
• Defines border between CR, innovation– Why we have browsers, PCs, CD-RW– Just because you own movies doesn’t mean you
get to control every tech that can play movies
Everything has changed
• Betamax about fair use but protected unregulated uses because tech makers free
• And CR owners didn’t attack users
• We were too complacent
• CR owners saw 200-year-old biz model of fee-per-copy disappearing in digital world
• Lobbied for barrage of new laws
Decade of new laws
• 1992 Audio Home Recording Act (SCMS)
• 1995 Digital Performance Right in Sound Recordings Act (new performance right)
• 1997 No Electronic Theft Act (crim CR)
• 1998 Copyright Term Extension Act
• 1998 DMCA
• 2002 SSSCA/CBDTPA/broadcast flag?
Rise of DRM
• Serves “copyright maximalism”
• All unconsented uses = theft
• Crypto, watermarks applied to digital works
• Devices must obey CR owners’ commands
• No tinkering
DRM upsets CR bargain
• Public supposed to be able to use works w/o owner permission
• But DRM builds digital locks/fences (TPM)
• And DMCA anti-circumvention rules
• Can’t break TPM even if law permits use– Like using DeCSS to play DVD on Linux
• Can’t disseminate tech for others
What you can’t do if DRM
• Play copy-protected CDs on computer
• Play DVDs on players they don’t control
• Skip commercials by fast-forwarding
• “Clip” from copy-protected works
• Make backups
• Even if law says you can, tech says you can’t
eBooks, Sklyarov, Elcomsoft• Adobe eBook Reader software = DRM• Middlemarch (public domain)
– copy 10 selections to clipboard every 10 days– print 10 pages every 10 days
• Aristotle’s Politics (PD)– Can’t copy– Can’t print– Can have it read aloud
Enter AEBPR
• Adobe eBook Reader is crippled PDF
• ElcomSoft software allows use of third-party PDF readers
• So you can transfer to other computer/PDA– Or read on unsupported OS like Linux– Or make backup
• Only worked on lawfully purchased eBooks
ReplayTV: Betamax again
• It’s a DVR like Tivo, allows digital recording of broadcast
• Also automatic commercial skipping
• Hollywood argues indirect infringement
• We represent 5 ReplayTV owners
• Asking court to say this is fair use
Innovation/competition
• Hollywood, RIAA have great market power– If your device can’t play their works, no market
• They agree to use crypto to lock their works
• DMCA says, can’t unlock w/o consent
• So all tech makers must get license (K)
• So Hollywood/RIAA can dictate design
• Even not related to infringement
DMCA keeps tech in line
• CR owners decide what features
• Stifles scientific speech (Felten etc.)
• Stifles reverse-engineering (BnetD)
• Subsidizes weak security (SDMI, HDCP)
• Legal perils if research security weaknesses
• Public won’t learn truth about security holes
EFF on P2P
• We see P2P as potentially awesome app for Internet
• More efficient bandwidth utilization
• More democratic Net communication
• More resistant mode of publishing (against censorship): FreeNet?
P2P & MusicCity
• Are P2P systems legally responsible for users’ infringements?
• Not pure music service -- platform for content publication of all types
• No control over or knowledge of user acts
• Truly decentralized -- MusicCity’s servers go down, users can still share files
Betamax again
• About controlling new technology
• Qualcomm responsible for what you send using Eudora?
• Imagine world if Hollywood had tech veto
• Artists’ compensation a real issue for which we have no answer
• But answer can’t be Hollywood veto power
Latest big battle: BPDG
• Making world safe for content owners
• Cripple tech to prevent infringement
• SSSCA/CBDTPA/broadcast flag (FCC)
• “police state in every computer”
• Analog hole: block A-D conversion
• P2P: Berman bill is digital vigilantism
• Valenti: war against terrorists (us)
refrain
• Creativity and innovation always build on the past
• The past always tries to control the creativity that builds on it
• Free societies enable the future by limiting this power over the past
• Ours is less and less a free society
We need your help
• Speech, innovation, culture at stake
• We’re fighting Hollywood and Washington
• Most people still don’t understand what’s happening
• How much have you given to the other side by buying CDs/DVDs or watching movies?
• Join EFF!