Sherwin Siy, Vice President of Legal Affairs at Public Knowledge, discusses emerging issues in digital copyright policy. He addresses the Department of Commerce’s recent green paper on digital copyright, including the need to reform copyright laws in light of new technologies. This podcast also covers the DMCA, online streaming, piracy, cell phone unlocking, fair use recognition, digital ownership, and what we’ve learned about copyright policy from the SOPA debate.

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Related Links

• Sherwin Siy, Public Knowledge
• What the DMCA cell phone unlock ban means to you, Reardon
• Why The Library Of Congress Has A Lock On Your Phone, Henn

In the ongoing copyright debates, areas of common ground are seemingly few and far between. It’s easy to forget that not all approaches to combating copyright infringement are mired in controversy. One belief that unites many stakeholders across the spectrum is that more efforts are needed to educate Internet users about copyright. The Internet has spawned legions of amateur content creators, but not all of the content that’s being created is original. Indeed, a great deal of online copyright infringement owes to widespread ignorance of copyright law and its penalties.

For its part, Google yesterday unveiled “Copyright School” for YouTube users. As Justin Green explains on the official YouTube blog, users whose accounts have been suspended for allegedly uploading infringing content will be required to watch this video and then correctly answer questions about it before their account will be reinstated:

Of course, boiling down the basics of copyright into a four and a half minute video is not an easy task, to put it mildly. (The authoritative treatment of copyright law, Nimmer on Copyright, fills an 11-volume treatise.) Copyright geeks and fans of “remix culture” will appreciate that Google’s video touches on fair use and includes links to in-depth resources for users to learn more about copyright. It will be interesting to see how Google’s effort influences the behavior of YouTube users and the incidence of repeat infringement.

Update: EFF’s Corynne McSherry has an essay up on the Deeplinks blog arguing that YouTube’s Copyright School video omits several important facts about copyright. She raises several very good points, but the unfortunate reality of copyright law is that uploading content that’s not substantially original — even in cases that might constitute fair use — is legally risky, particularly for those who aren’t familiar with copyright law. While I’d love to see YouTube create a follow-up video that explains fair use doctrine in an accessible manner, Google’s decision to urge YouTube uploaders to err on the side of caution is quite reasonable in light of the severity of the statutory penalties for copyright infringement.

Last month, National Review magazine published a review that I penned of Mark Helprin’s new book, Digital Barbarism: A Writer’s Manifesto.  Helprin’s book is both a passionate defense of copyright law as well as a mini-autobiography.  Helprin is one of the great novelists and essayists of the past half-century, and his book A Soldier of a Great War is one of my all-time favorite novels.  I cannot in strong enough words encourage you to read that book; it is profoundly moving. (I almost named my son after the lead character in the book!)

Thus, I was quite excited when I learned that Helprin had penned a defense of copyright and I jumped at the chance to review it when the folks at National Review asked me to do so.  Alas, as you will see in my review, I was terribly disappointed.  I wish Helprin would have stuck with the very reasonable tone he adopted in this excellent podcast interview he did recently with John J. Miller of National Review Online. Unfortunately, he went a different direction in the book, as I make clear in my review:

National Review July 20, 2009

“Man, Machine, and Copyright” a review of Digital Barbarism: A Writer’s Manifesto, by Mark Helprin by Adam Thierer

It would be difficult to think of anyone more ideally suited to pen a passionate defense of copyright law than novelist Mark Helprin.  Helprin has written several of the finest works of modern literature, including his masterpiece, A Soldier of the Great War, a narrative of transcendent beauty. In Digital Barbarism, Helprin sets out to use his formidable gift for the written word to repel the “cyber mob” that has attacked copyright law and called for its curtailment, or even abolition.

Unfortunately, while Helprin occasionally rises to great heights in his defense of copyright, he too often sinks to lamentable lows — by resorting to the same unbecoming rhetorical tactics used by the mob he seeks to condemn. Indeed, his book is filled with gratuitous vitriol and neo-Luddite ramblings about the Internet and Information Age that severely detract from his defense of copyright. This is a shame, because, in places, Digital Barbarism makes a fine case against those critics who wrongly view copyright as an impediment to the creation and diffusion of content. “The availability of information is not and will not be restrained by the copyright system any more than it is or will be restrained by the delivery systems that make it possible,” Helprin argues. Why, he asks, “must ‘content’ be free” when everything else — access to the Internet, digital devices, etc. — costs good money? He notes that the movement that advocates “free,” universal access to all copyrighted material in the name of “openness” and “the public good” would, ironically, “destroy the dream it advocates”:

By insistence upon unhindered access without regard for rights and incentives that have been carefully balanced over centuries, the hurried new order will diminish the substance over which it demands sovereignty. It will have its access, but, as time passes, to less and less, and eventually perhaps to almost nothing, the means having grossly overpowered the ends. The past may be brilliantly cataloged and made accessible as never before, but at the cost of making the culture of the present relatively barren. Though it may never be entirely extinguished, it can be made as eerily quiet as if without the beat of a single heart.

The power of Helprin’s defense of copyright is that it is grounded in both this sort of utilitarian rationale and a Lockean, natural-rights-based conception of man’s moral right to the fruit of his mental labor. But there are many thorny issues Helprin fails to address in setting forth his dual defense of copyright.

To begin with, things just aren’t as black-and-white as he makes them out to be. There’s a certain inherent messiness to “intellectual property,” at least when compared with tangible property. As an abstract concept, it’s easy enough to defend. In practice, however, it often proves exceedingly challenging to delimit and enforce, since intangible creations cannot be enclosed the same way our back yards can.

This does not mean, however, that the opposite approach — a collectivized “commons” for intellectual creations — is more sensible. That intangible property is harder to enclose and protect doesn’t mean the law shouldn’t seek to do so. “Copyright is important because it is one of the guarantors of the rights of authorship,” Helprin argues, “and the rights of authorship are important because without them the individual voice would be subsumed in an indistinguishable and instantly malleable mass.”

American copyright law has generally cast this right in utilitarian terms, ever since the Founders gave Congress the power under Article I, Section 8 of the Constitution “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 how much “limited time” is enough time to incentivize creativity and invention? Under the first Copyright Act, enacted by Congress in 1790, the term of protection was just 14 years plus a right to renew for an additional 14 if the author was still alive.

There are many legitimately difficult questions about the enforceability of copyright in an age of ubiquitous digital connectivity and instantaneous information flows. I came to appreciate these challenges several years ago after transferring my entire 30-year CD collection to a portable music player that was smaller than a box of cards. How can copyright coexist with the giant copying machine represented by the combination of personal computers, digital devices, and the Internet? What sorts of restrictions on devices and networks are required to ensure that we continue to reward intellectual creativity without destroying the forms of technological innovation? How should copyright law define “fair use” in a culture that increasingly enables collaboration and encourages “remixing”? Will we need to create new “compulsory licensing” schemes — already in place for radio and television — to ensure that creators are compensated through mandatory fees embedded in digital devices or our monthly broadband bills?

These are challenging questions that deserve a fair hearing. But Helprin rarely bothers with these details because he’s too busy trading jabs with “the mob.” Unfortunately, his manifesto goes off the rails as his defense of copyright quickly morphs into an indictment of the Internet and all things digital.

At times, Helprin seems to be channeling the ghost of the late social critic Neil Postman, who, in his 1992 anti-technology screed, Technopoly: The Surrender of Culture to Technology, heaped contempt upon the unfolding Information Age. Recently, Internet critics such as Lee Siegel (Against the Machine: Being Human in the Age of the Electronic Mob) and Andrew Keen (The Cult of the Amateur: How Today’s Internet Is Killing Our Culture) have continued this tradition of deep techno-skepticism. With Digital Barbarism, Helprin joins this cause, arguing that we are witnessing “the decline of culture,” the “mechanization of the soul,” our “intellectual and spiritual destruction,” and the rise of a movement of “wacked-out muppets led by little professors in glasses” that “threatens in a decade or two to dissolve the accomplishments of millennia, reordering the ways in which we think, write, and communicate.”

And Helprin is just getting started. While he claims that he is “not decrying the digital revolution per se,” it often sounds that way. He speaks repeatedly about the “surrender” of human nature to “the machine revolution” and the corresponding need to “control the machine.”

Much of Helprin’s Internet ire seems to originate with the anonymous “blogging-ants” who have attacked his earlier essays in defense of copyright-term extension. Digital Barbarism becomes his chance for payback. “It would be one thing if [the digital] revolution produced Mozarts, Einsteins, or Raphaels,” Helprin says, “but it doesn’t. . . . It produces mouth-breathing morons in backward baseball caps and pants that fall down; Slurpee-sucking geeks who seldom seek daylight; pretentious and earnest hipsters who want you to wear bamboo socks so the world won’t end . . . beer-drinking dufuses who pay to watch noisy cars driving around in a circle for eight hours at a stretch,” and so on.

Unfortunately for Helprin, would-be rappers, basement-dwelling geeks, enviro-hippies, and NASCAR fans all predate the rise of the Internet, so one wonders if he has fingered the right culprit for civilization’s supposed decline. The fundamental problem with Digital Barbarism is that the cultural decay Helprin laments cannot be so easily tied to the battle over copyright. Indeed, most of what Helprin condemns in modern culture has come about during a time when copyright’s protections — at least as defined by law — have been expanded considerably in both length of term and breadth of coverage.

Moreover, he is simply too quick to proclaim the decline of modern civilization by looking only to the baser elements of the blogosphere. The Internet is a cultural and intellectual bazaar where one can find both the best and the worst of humanity on display at any given moment. True, “brutishness and barbarism” can be found on many cyber-corners, but not all of its corners. And, contrary to Helprin’s assertion that blogging “begins the mad race to the bottom,” one could just as easily cite countless instances of the healthy, unprecedented conversations that blogs have enabled about a diverse array of topics. Finally, even if one concedes, for the sake of argument, that blogging produces more cultural trash than treasure, would greatly enhanced copyright protection really turn things around?

There are strong moral and utilitarian arguments for protecting copyright and, during his calmer moments, Helprin articulates some of them quite effectively. He is surely right that “theft is ugly,” and that far too many people (especially in academia) are turning a blind eye to the injustices of the widespread copyright infringement taking place online today. There’s a lot of good sense buried underneath the angry rhetoric of this book; it’s regrettable — and surprising — that someone of Mark Helprin’s literary prowess didn’t make a better effort to persuade his readers.

Additional Reading about Digital Barbarism: A Writer’s Manifesto:

• Mark Helprin’s home page, his Claremont Institute page, and his Wikipedia entry
• Helprin’s New York Times editorial that prompted a backlash and led him to write the book
• Helprin podcast interview with National Review Online
• Russ Roberts interviews Helprin for the Econ Talk podcast
• Lawrence Lessig’s written response at the Huffington Post and an NPR interview with Lessig about the book
• Helprin’s recent Wall Street Journal editorial, “Copyright Critics Rationalize Theft,” which is condensed from the book
• the Amazon page and HarperCollins page for the Digital Barbarism
• a review by Jeremy Philips, and executive with News Corp, which appeared in the Wall Street Journal
• a review by Gordon Crovitz of the Wall Street Journal (+ lots of good comments)
• a review by Patrick Ross of the Copyright Alliance (Part 1, Part 2)
• a review by Jonathan Bailey that appeared on the Plagiarism Today blog
• a review by Nate Anderson of Ars Technica

A U.S. district judge got it right yesterday when he refused to dismiss a lawsuit against Universal, ruling that copyright holders should take into account fair use prior to issuing DMCA takedown notices. The dispute arose last year when a woman received a takedown notice over a YouTube video featuring a kid dancing to a Prince song owned by Universal.

Over at Ars, fellow TLFer Tim Lee has a good overview of the issue in which he explains how the various legal arguments played out. EFF, which represents the plaintiff in the case, offered several compelling reasons why ignoring fair use in a takedown notice might actually constitute “bad faith” under the DMCA.

As Cord discussed a few months ago, my employer, the Competitive Enterprise Institute, recently received a meritless takedown notice for a global warming ad we posted on YouTube which featured about seven seconds from a copyrighted video clip. Our use of a trivial portion of a copyrighted video was clearly both transformative and non-commercial, yet the content owner still deemed it worthwhile to try to get the video removed.

I have no idea if the notice was sent with the intent to silence us, or if the content owner was simply ignorant of the fair use defense. Regardless, for several days, until we filed a counter-notice, our YouTube account was suspended, making over 100 CEI videos were inaccessible. (We learned our lesson about putting all your eggs in one basket—we now maintain a separate library of all of our videos on cei.org.)

Fortunately, CEI has a vigilant and experienced general counsel who promptly filed a counter-notification (as per the DMCA.) Still, we shouldn’t have had to allocate time and resources to defending a video that no reasonable person would consider copyright infringement.

It’s not too much to ask that content owners consider whether a potential infringement is fair use before sending a takedown notice. Of course, many copyright disputes are murky, so expecting copyright holders to perform a conclusive legal analysis of each unauthorized file is unfair. But when the potentially infringing content in question blatantly falls under fair use, copyright holders should be subject to penalty if they send a takedown notice anyway.

Hopefully Judge Fogel’s ruling will put an end to the status-quo’s flawed takedown system in which infringing content is fingered by computers, rather than live human beings. The burden of going after copyright infringement has traditionally rested with the content owner—so why not add one more step to the process to thaw the chilling atmosphere surrounding the fair use of copyrighted material?

There’s been a lot of FUD floating around about the MPAA’s plan to offer new release films for cable subscribers to watch at home on pay-per-view channels. Currently, movies come out on DVD about four months after their theatrical release, and are typically available on pay-per-view a month or two thereafter. As box office receipts have waned, Hollywood has warmed to the idea of letting consumers watch movies at home just a few weeks after being released in theaters.

Due to piracy concerns, new movies would be subject to an extra layer of copy protection. The movie studios want to use a technology called Selectable Output Control (SOC) to prevent new release films from being viewed on analog outputs. SOC makes it possible to seal the “analog hole” by disabling all unprotected paths.

Consumers are willing to pay to watch new movies at home, and content producers are willing to transmit them, but government is standing in the way. FCC regulations forbid multi-channel video programming distributors from activating SOC, but firms may apply for a waiver from these rules if they can demonstrate that consumers stand to benefit. The MPAA has applied for a waiver, arguing that “These new Services are exactly the type of ‘new business models’ that the Commission contemplated when it adopted the encoding rules.”

Under Section 304 of the Telecommunications Act of 1996, the FCC is tasked with “assuring commercial consumer availability of equipment used to access services provided by multichannel video programming distributors.” FCC regulations, therefore, mandate that all video transmitted on cable TV must be viewable on all outputs, including legacy analog connectors like RCA and S-Video. In a 2003 Notice of Proposed Rulemaking, the FCC stated that, “we are concerned that selectable output control would harm those ‘early adopters’ whose DTV equipment only has component analog inputs for high definition display, placing these consumers at risk of being completely shut off from the high-definition content they expect to receive.”

But it’s expected that early adopters will sometimes encounter technical hurdles. Why should Selective Output Control be any different? Just as HD-DVD players are effectively obsolete, and K56flex modems are no longer supported by most dial-up ISPs, people who bought HDTVs several years ago prior to the adoption of HDCP might have to live without the ability to watch new release movies at home.

HDCP—which stands for High Definition Copy Protection, a digital encryption standard built in to nearly all newer HDTVs—lets consumers watch high-def programming in full 1080p glory over digital, encrypted outputs (DVI and HDMI). The trouble is that some consumers own high-definition displays that aren’t HDCP capable, as the standard wasn’t widely implemented until early 2006. But that’s hardly a reason why those who do own HDCP-enabled devices should lose out on the opportunity to view high-value content that content producers are uncomfortable releasing on mediums vulnerable to piracy.

New-release films are a major target for pirates, so MPAA’s worries about copyright infringement make sense. Typically, high-quality versions of new release films do not become widely available on the usual piracy venues until the film is out on Blu-Ray and DVD. Transmitting brand new movies in high-def on analog component outputs would allow pirates to distribute high resolution releases captured with off-the-shelf equipment.

With a growing number of IP-based video options coming to the scene, the market will punish overly aggressive DRM technologies. Consumers enjoy an increasing menu of alternatives to cable for viewing high-def movies at home. This fall, Xbox 360 owners will be able to stream Netflix movies straight to their console. If cable companies offer an inferior product—say, one that “breaks” commonly used outputs—subscribers will simply switch to competing video services

Concerns about cable subscribers paying for movies only to receive a black screen are overblown. Why would any cable company make such a bone-headed move? Hollywood has voluntarily chosen not to activate the Image Constraint Token (which “downrezzes” 1080p content to 540p when played through an analog output) for fear of alienating users. Facing fierce competition, cable companies have a strong incentive to avoid angering their subscribers.

Several groups have argued that the FCC should reject the MPAA’s waiver on fair use grounds. But content owners aren’t required to ensure that all movies can be easily timeshifted and archived. There is no consumer right to unfettered, analog video programming. Fair use is an important exception to copyright law, but that doesn’t mean government should mandate crippled DRM just so consumers can exercise fair use. If movie studios wish to relegate certain films to being viewed only on encrypted outputs, then it’s up to the marketplace to devise methods to allow for timeshifting of protected content.

The real impediment to fair use isn’t Selectable Output Control, but the DMCA’s chilling anti-circumvention clause. Software capable of breaking DRM shouldn’t be banned, but robust DRM shouldn’t be illegal, either. Consumers will shun content that’s encumbered with intrusive DRM, and market forces will reward copy-protection schemes that balance transparency with robustness. In the ongoing battle over DRM, the best course for government is to stay out entirely.

If there’s a market for new release movies delivered straight to the home, it should be allowed to emerge, unfettered by federal regulation. Content owners should not be required to ask for the FCC’s permission to activate DRM technology. If the FCC rejects the MPAA waiver, Hollywood may simply decide that nobody will get a chance to watch new release films at home.