One practitioner’s struggles with practicing — while fighting to change — the law in the dark ages of the Internet.
After reading Copyfight’s recent comments on one of my copyright posts, I noticed that I had (at some point) been reclassified on Copyfight’s blogroll from “Copyfighter” to “Linkable + Thinkable.” Perhaps this is because I moved my site to a new URL (and note to Copyfight: my blog is now at lawlawlaw-dot-com). But perhaps it’s because Copyfight thinks that I’m not a copyfighter. And so I’ve been thinking. Can an attorney who makes his living practicing intellectual property law also be a copyfighter?
What I believe about copyright law.
I believe that the goals of copyright law, as stated in the Copyright Clause of the Constitution (“[t]o promote the progress of science and useful arts”) are valid and good. But I also believe that the Copyright Act — the body of law created by Congress based on the authority granted to it by the people via the Constitution’s Copyright Clause — has been tweaked and modified far too much. I firmly believe that the 1998 Sonny Bonno Copyright Term Extension Act (CTEA) and the Digital Millennium Copyright Act (DMCA) are bad laws — not only because they are inconsistent with the goals of the Constitution’s Copyright Clause but because they are unnecessary. The pre-CTEA-DMCA Copyright Act was by no means perfect, but it was better than what we have now. And the trend towards more rights for corporations and fewer for individuals is troubling.
What I mean by “bad law.”
- “Bad law” is law that solves a problem that doesn’t exist. When lobbyists invent a problem and claim that a law will solve it, it results in bad law. Disney lobbyists complain that EU authors get to keep their copyrights for 70 years and, as a result, the public has to swallow the CTEA.
- “Bad law” is law that is too broad in scope, that, in an attempt to make one kind of activity illegal, also covers other legal activities. When this happens, we are told to rely on “prosecutorial discretion” when a better solution is to have more narrowly drawn laws. Or no new laws at all.
- “Bad law” is law that is unnecessary. Unnecessary because corporate legal departments and corporate marketing departments aren’t talking to each other. Ease-of-copying is the Internet’s greatest asset, one that would allow marketing departments to distribute their companies’ digital goods worldwide for (essentially) free – if only their legal departments weren’t preoccupied with trying to fight gravity.
The genesis of my copyfighting.
I’ve been on the Internet since 1984, the year I entered MIT. At MIT, I learned how to solve problems, how to think about problems, and the importance of always asking “How?” In the Air Force, I learned how to work with the system to effect positive change. In law school, I learned how the system works and the importance of always asking “Why?” And in business, I learned that decisions are made more frequently on emotions than on the logic of “how” and “why.”
The “how” of technology, the “why” of the law, and the “so what” of business. These experiences shape the way I think about copyright law. As I’ve been writing this article, I’ve been rereading some of my earlier articles on copyright law. Here are some excerpts.
In 1994 and in 1995, I wrote about the wrongful prosecution of David LaMacchia for wire fraud (in what would probably be a DMCA case today):
“[O]n April 7, 1994[,] LaMacchia was indicted for conspiracy to commit wire fraud in violation of a federal statute, despite the fact that he had not profited from his activities. The federal wire fraud statute was enacted in 1952 to combat wire fraud — the use of the telephone to defraud unsuspecting individuals. Mr. LaMacchia was accused of running a computer bulletin board used for uploading (copying to) and downloading (copying from) copyrighted commercial software. Mr. LaMacchia apparently was aware that the copying was going on, although he had not been accused of any illegal copying. He also apparently used the computer for other purposes whose legality has not been questioned. The federal government had a very good case for saying that Mr. LaMacchia did some things that are not very nice, but they did not have a wire fraud case at all. Mr. LaMacchia was recently rightly acquitted. The newsletter of a Boston law firm said that LaMacchia had slipped through a ‘legal loophole’ and that there was no question that he had violated the law. Not exactly. LaMacchia was acquitted because he committed no crime. If the government had wanted to prosecute LaMacchia for ‘doing things that are not nice,’ then it should have enacted a law that ‘doing things that are not nice’ is a crime. It should not have tried to get a conviction for wire fraud and copyright violations simply because changing the law is too difficult. It’s supposed to be difficult. Due process, anyone?” (Emphasis added.)
Also in 1995, I suggested that copyright law did not need to be changed to deal with doctor-doctor-it-hurts-when-I-do-this issues and demonstrated at least one creative solution (print-and-pay copyright) for publishers:
“It is often stated that since copying digital works is very easy to do, and since illegal copying of copyrighted works is widespread, then the copyright laws must be rewritten to deal with this ‘problem.’ Is it really a problem? Is 100% enforcement of civil or criminal copyright laws necessary to effect the desired result? What is the desired result? Is 100% enforcement of any law necessary to effect the desired result? Where is the evidence to support the proposition that artists are starving because of Internet copying? The Internet is another medium of publication. The copyright laws are well suited to deal with many publication media. Rather than worrying about rewriting the copyright laws, we should be fine-tuning what the language of the law means….
The creator of a digital work who complains to courts about the unauthorized copying of her works is not unlike the patient who twists his body in an awkward manner and then complains to his doctor of back pain. The answer to both is the same: ‘Don’t do that.’ …
Another way to use existing law involves drafting novel copyright notices. For example, my book, The Legal List, is published according to a scheme I call print-and-pay copyright…. It could also be called the honor system. The copyright notice for TLL states that the work may be freely copied from one electronic storage medium to another, but if it is copied to paper, the copier must pay a royalty fee. Some have commented that TLL is shareware. It is not. Shareware (like shrinkwrap licenses) is a concept that is not firmly rooted in either contract or copyright law. Print-and-pay copyright is a straightforward application of copyright law. Of course, 100% enforcement is not possible, but neither is it necessary. What is ‘lost’ in sales is gained in goodwill, and enough organizations (including the US Supreme Court) have honored the copyright notice to make it worthwhile.”
In 1996, I gave a presentation (and wrote a corresponding paper) entitled “Ease-of-Copying in the Digital Age – Turning a Negative into a Positive,” in which I wrote:
“Digital works on the Internet (and on online services) can be easily copied and distributed without the permission of the author. This much is undeniable….
Simply put, many consider ease-of-copying to be the Internet’s biggest liability. I view it as the Internet’s biggest asset. Publishing in paper is alive and well. There were more magazine starts in 1995 than in any previous year. Publishing on the Internet is alive and well. Publishers (such as Time, Internet World, and Wired) are ‘giving away’ portions of their magazines online without hurting — and in many cases helping — sales of the paper-based product.”
John Perry Barlow addressed these and other issues in the the March 1994 issue of Wired. That article remains a classic. Regarding the future of copyright, Barlow wrote:
“[W]hen the primary articles of commerce in a society look so much like speech as to be indistinguishable from it, and when the traditional methods of protecting their ownership have become ineffectual, attempting to fix the problem with broader and more vigorous enforcement will inevitably threaten freedom of speech. The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.”
This sounds a lot like what is going on today as the RIAA relentlessly sues its customers (while offending those it’s not suing).
Regarding the benefits of letting information be free, Barlow wrote:
“In regard to my own soft product, rock ‘n’ roll songs, there is no question that the band I write them for, the Grateful Dead, has increased its popularity enormously by giving them away. We have been letting people tape our concerts since the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America, a fact that is at least in part attributable to the popularity generated by those tapes.
True, I don’t get any royalties on the millions of copies of my songs which have been extracted from concerts, but I see no reason to complain. The fact is, no one but the Grateful Dead can perform a Grateful Dead song, so if you want the experience and not its thin projection, you have to buy a ticket from us. In other words, our intellectual property protection derives from our being the only real-time source of it.”
A decade after Barlow wrote this, I remained stunned that more artists and publishers are not taking better advantage of the power of the Internet. I believe that 10 years from now we will look back on these times as the dark ages of the Internet: where a lack of understanding of technology, the law, and human nature led to bad products, bad laws, and bad decisions.
More recently, I have opined about:
Summary – I Am A Copyfighter
I don’t always agree with other engineers, lawyers, or business people, especially if I feel they don’t understand the “how” of the technology, the “why” of the law, or the “so what” of business. And don’t get me wrong, I like being called “linkable and thinkable.” But if “copyfighter” means “one who fights against bad copyright laws (and for smarter business practices),” then I am a copyfighter.
