IP conference: copyright law has gone too far

The recording industry and the Business Software Alliance squared off against the Electronic Frontier Foundation and US Rep. Rick Boucher Wednesday in a debate over laws such as the Digital Millennium Copyright Act aimed at protecting large copyright holders, with the hearts and minds of a crowd of Washington, D.C., decision-makers as the prize.

John Perry Barlow, former Wyoming cattle rancher, Grateful Dead lyricist and co-founder of the EFF, told a Washington suit-and-tie crowd of lobbyists and congressional staffers that he can predict the history of this century after the recent terrorists attacks on the US.

"I think I can safely say that history of the 21st Century is going to be about the struggle between open systems and closed systems, which was what you saw engaged on 11 September in a very pointed way," Barlow said. "This is going to be an interesting and complex struggle, because it is in the nature of open systems to breed closed systems, since for example, an open system like a free-market economy tends to gravitate toward a natural monopoly, which is a closed system."

In the day-long conference, entitled The Future of Intellectual Property in the Information Age, at Libertarian think tank The Cato Institute, the phrase "open source" only came up a handful of times - but the impact of copyright protection schemes on Open Source, Free Software and ordinary consumers of online music, movies and written materials was never far away from the debate.

The conference was put on by a Libertarian group that's internally divided over whether government protection of copyrights and patents is a good thing. Two of the three keynotes featured critics of expanded copyright protections: Boucher, a Virginia Democrat, and Barlow, whose organization has defended people who've run afoul of the DMCA's provision outlawing technologies that circumvent copy controls.

Small group controls much information

Barlow noted that since the Telecommunications Reform Act of 1996, the concentration of media companies has caused the majority of copyrighted entertainment to fall into the hands of a handful of companies. "I think that what we are doing with acts like the DMCA is to give them an enormous additional amount of control at a time when they don't need it," he said. "We are putting tools in their hands that are far more powerful than have been put in the hands of any kind of medium before, and they are in a position to control information like it's never been controlled by anyone but the Soviets.

"If we're not going to regulate the media monsters, we at least need to be thoughtful about putting these additional tools in their hands."

While Barlow talked about the philosophy of information freedom - how information becomes more valuable when it's shared, unlike physical goods - Boucher took the more pragmatic approach by talking about what's going on in Washington and what changes he believes need to happen.

Boucher outlined two bills he's sponsoring, the Music Online Competition Act, which would encourage competition for online music services beyond services owned by the large music companies, and the Business Method Patent Improvement Act, which would reform the way business method patents are obtained. Both bills, he said, would help turn the tide back to consumers and against the trend toward protecting the large industries that hold most copyrights and patents.

Boucher told the crowd of a couple hundred D.C. insiders that laws such as the DMCA aim to restrict consumers' fair use rights on copyrighted works, to do such things as make their own personal copies or sample the works to critique them. "[The DMCA] is, in my humble opinion, a broad overreach that severely limits fair use rights," he said. "Free speech doesn't mean much if you have to get prior permission of an intellectual property owner" to use the work for your own purposes.

But the other side was well represented, with apologists for large patent and copyright holders arguing that such protections are needed in order to fuel the creation of new content and new ideas.

During one panel discussion, Greg Aharonian, editor of the Internet Patent News Service, argued that Boucher was being insincere for focusing on the ease of getting business method patents, such as the famed Amazon.com one-click ordering patent and the Priceline "name your own price" patent, because the quality of all patents has been a problem for decades.

RIAA vs. EFF

During a panel on whether music and movie companies should be able to employ their own digital rights management techniques, Mitch Glazier, legislative counsel for the Recording Industry Association of America, and Robin Gross, staff attorney for the EFF, sat next to each other as they argued over what kind of locks should be put on digital content.

Glazier said consumers will ultimately be responsible for determining how music is delivered on the Internet, although he didn't address why his organization has felt it necessary to sue customers of services such as Napster to get them to comply with the RIAA's way of doing business.

"There's only one huge question nobody knows: what the consumer wants, what will succeed," Glazier said. "At the end of the day, I think consumers will be pretty happy with the number of competing services out there." Gross seemed to roll her eyes at that comment.

Gross and others argued that laws such as the DMCA destroy the delicate balance between content owners' rights to be paid and consumers' rights to circulate the ideas and copy and repackage that content as long as its for personal use. She and others pointed to other examples of new technology that copyright holders fought - such as the VCR - that later became a boon to the industries originally fighting it.

The Internet is helping to create a world that's moving from information scarcity to abundance, she said, and by walling off information behind stringent copyright law, "we risk creating an artificial scarcity of ideas where none needs to exist."

Break anti-copy code, go to jail

While the DMCA and its anti-circumvention provisions caught most of the flak, several critics of copyright expansion warned of the proposed Security Systems Standards and Certification Act, which would ultimately require copy-protection controls on all kinds of digital devices and software.

In a panel called "Technology vs. Technology: Should Code Breakers Go to Jail?" Emery Simon, special counsel for the large tech-company dominated Business Software Alliance, said he was puzzled how the opponents of the DMCA can frame it as an "evil" law that's unconstitutional and limits free speech. Instead of good vs. evil, he said, the DMCA should be seen as part of an ongoing adjustment of how copyrighted works will be distributed on the Internet.

But even Simon and a lobbyist for the generally conservative US Chamber of Commerce acknowledged between panel discussions that the SSSCA would create problems of compliance for their memberships. About the only person at the conference who had anything good to say about the SSSCA was the RIAA's Glazier, who said his organization doesn't have an official position on it, but it might an interesting approach.

The "go to jail" panel addressed issues close to the hearts of many in the Open Source community, including the DMCA-inspired lawsuits against webmasters who posted the DeCSS code that allows Linux users to decode and play DVDS, and the arrest in the United States of visiting Russian programmer Dmitry Sklyarov for creating a program that strips copy controls from e-books.

Mike Godwin, a technology author and policy fellow at the Center for Democracy and Technology, said a certain amount of authorized copying is assumed in the old balance of copyright law. He said the DMCA outlaws circumvention of copy controls, whether or not the circumvention is intended for illegal uses.

Godwin said the DMCA could be used to for "absurd results," such as to prosecute author Stephen King for breaking the Windows-proprietary e-book format to read one of his own e-books on his Mac laptop.

"When we say that it doesn't matter whether you're an infringer or not; it doesn't matter whether you're a bad actor or not; if you engage in this technology development at all, or if you distribute this technology development at all, you're going be criminally or civilly liable - that has unmoored the copyright enforcement framework from its original policy foundation," he said.

Julie Cohen, a Georgetown University law professor, suggested that the DMCA is especially problematic for Open Source developers because although it allows some reverse engineering and encryption research, it requires those developers to be "sufficiently credentialed," but that doesn't protect the 15-year-old developing Open Source software in his bedroom from a DMCA prosecution or lawsuit.

"Even if you think the Open Source movement is only an interesting experiment, that's something to be troubled about," she said.

Generational struggle

The EFF's Barlow suggested the current copyright struggle is a generational dispute, with the old guard industrialists, who own the entertainment copyrights, against young people who see nothing wrong with trading information. The recording industry doesn't understand that a certain amount of free distribution of its product helps create a buzz for it, he said. The Grateful Dead learned this by allowing fans to tape their concerts and witnessing the resulting growth in popularity of their music.

"[The RIAA is] so trapped in the industrial paradigm, they can't see it," he said. "On the other hand, there is an entire younger generation of people who do get it, all those people who find nothing morally repugnant about lifting software from one another. There is no ethical dilemma for a 21-year-old college kid when they go get some piece of information or entertainment. "If you're going to criminalize that activity to the extent it has now been criminalized... you're creating a system that naturally breeds contempt for the law. I don't think it's a great idea to have laws that young people feel are wrong and systematically abuse, because it actually damages the validity of all the other laws that have a good reason for being there."

The Cato Institute is planning a book based on the conference. ®

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