Caught up in the latest battle in the content wars, I went searching for context.
I read two books last weekend that explain the history from different angles.
* Copyrights and Copywrongs, by Siva Vaidhyanation, is an erudite intellectual history of the concept of copyright, and an eloquent critique of the damage done to culture by draconian content policies.
* Digital Copyright: Protecting Intellectual Property on the Internet, by Jessica Litman is a more prosaic account of the last decade’s legal battles, by a practicing copyright lawyer who was an eyewitness and participant. What Litman’s book lacks in elequence, it makes up in tactical observation and insight.
The history provides helpful perspective on this year’s battles.
* the relationship between the federal Digital Millennium Copyright Act and the state-level bills, nicknamed SDMCA, even though the state bills say nothing about content and copyright.
* the eerie historical parallels, and critical differences, between the events in DC in the 90s, and the state-level events this past year.
* the long-term history and long-term consequences of this year’s events
Why are the state bills nicknamed “SDMCA”
The history explains the relationship between the DMCA, a 1996 addition to Federal copyright law that bans circumvention of copy protection — and the so-called S-DMCA — the state level bills that give movie companies and ISPs vast power over their customers’ use of a network connection.
The right to copy movies, music, and books is governed at the federal level, because copyright is defined in the constitution. But access to content services is regulated at the state level.
In their effort to legislate perfect control over customers’ access to content, the MPAA needs to change legislation at the state level. Hence the SDMCA.
History Repeats Itself
There were eerie similarities between the national fight last decade and this year’s efforts.
- The citizen groups were coming from behind. The movie industry developed a pro-active long-term strategy to combat the threat posed by new technology, by trying to restrict and elimiate customers’ traditional “fair use” rights. Citizen groups heard of the threat late, and scrambled to organize opposition.
In the 90s, the opposition came from national activist groups like EFF, academics, and library groups.
This time around, SlashDot and weblogs by copyfighters like Ed Feltenalerted people of the SDMCA bills coming to their states. Grass roots groups rose up in various states, and a network of grass roots groups came together.
- There is a long tradition in which content and access rights are negotiated among commercial interest groups — book publishers and writers, music publishers and the radio industry, service providers and equipment manufacturers. Consumer and citizen groups didn’t have a secure place at the table.
In 1996, there was a summit among key industry players. The citizen groups were disinvited at the last minute.
In 2003 in Texas, there was a summit called between the MPAA lobbyists, the industry group lobbyists, and the citizen group lobbyists. The citizen groups were disinvited at the last minute.
- There was an unstable alliance between telecom companies (who didn’t want to be caught between content companies trying to prosecute customers), equipment manufacturers (who didn’t want to be liable for their customers’ misdeeds), and citizen groups (who wanted to preserve the traditional rights of customers to use content and technology they’ve purchased).
Here’s where the stories diverged. Just like in the 90s, the telecom companies were “carved out” by an exemption from liability. When the American Electronics Association agreed to a carve-out exempting manufacturers and resellers from liability, it looked like the parallel was complete. Citizen groups would be the sole opposition, and go down to defeat.
This time, though, resellers and manufacturers saw beyond the liability carveout. They recognized that their market opportunity and ability to innovate were threatened by laws that let movie and cable companies micromanage customers’ use of technology — even if the manufactures and resellers were exempt from direct liability for their customers’ misdeeds.
The technology companies kept fighting the bill, and helped raise active opposition among tech-savvy legislators.
Copyright policy has been slowly swinging from a balance between publishers and public rights, toward publisher control, for a century.
The MPAA has been working on this issue for ten years, and has a long-term strategy to erode and abolish fair use and fair access.
It’s critically important for citizen groups to have a seat at the table. The Sierra Club and the National Rifle Association make their voices heard. Technologists and technology users should too. My guess is that we’re swing voters; prove that theory, aggregate our dollars and votes, and watch the power balance change.
Weinberger reports on a conference session about the invention of alphabetical order, developed a new type of reader: not a scholar who reads continuously but someone who looks things up.” The prevalence of search engines is rederning other kinds of indexes less important.
A while ago, I griped about visiting a home libary holding several stories of matching leatherbound books, arrayed to display the wealth and culture of the owner. The pages were still uncut. The books weren’t for reading.
In fact, early generations of printed books in the Renaissance (mid-1400s) were produced and purchased for this purpose. Agents purchased copies of these new luxury items, produced with custom illustration, and bound identically in expensive leather with precious metal and jewels, to display the wealth of their noble, ecclesiastical, or merchant clients.
A century later, books were produced in print runs of 1000 or more, serving a growing audience of readers and scholars. Letters served as a very slow search engine — readers wrote their colleagues, asking where they might find the latest edition edition of a new classical translation or new scholarly text.
from Worldly Goods by Lisa Jardine, a history of the Renaissance through material culture.
Chip and Adam are concerned that defining a set of fair use rights would actually serve to limit fair use. I agree that it would be a problem if fair use rights were defined with narrow specifics as in the DMCA, and think a “fair use bill of rights” should define fair use broadly, just as the Bill of Rights has broad definitions for freedoms of speech and assembly.
Based on experience working to oppose the SDMCA in Texas, I have a different concern from Chip and Adam.
Over the last decade, the content industries have succeeded in stereotyping most personal and creative uses of content as potential theft. We have a big image problem, in the minds of the public and in the minds of legislators, who now think of end-users as thieves.
I don’t think it’s enough to describe user rights in a technical fashion, whether as Adam suggests, as all uses other than redistributing a work, in whole or large part for profit, or whether, Jessica Litman suggests, as a balance shifting back from “thick” copyright protection to “thin” copyright protection.
We need to create a positive, affirmative image of all of the legal, personal, intellectual, creative, and innovative ways that people use content. We need to create an environment where infringing fair use is viewed with the same horror in American culture as infringing free speech.
Only by having a strong, positive image, and broad standard for fair use, can we counter the stereotype that personal and social cultural creativity constitutes stealing.
Ross Mayfield praises the Digital Consumer bill of rights, asserting the rights that consumers have had until recently. These include:
- The right to “time-shift” media (recording a TV show and watching it later).
- The right to “space-shift” media (copying a CD to a portable MP3 player).
- The right to make backup copies of your media.
This is a step in the right direction, and would be improved by going a step further.
We need a strong expression of “Fair Use”, including:
- Consumer fair use: “time-shift”, “space-shift”, and “back-up
- Creative fair use: the right to sample, quote, and recycle artistic ideas in the creation of new art
- Satiric fair use: the right to quote a work for the purposes of satire and parody
- Technical fair use: the right to take somthing apart to see how it works, in order to improve on it or interoperate with it
- Journalistic and academic fair use: the right to quote snippets for news, commentary, education and research
To my understanding (I’m not a lawyer), only the last item in the list is codified in the 1976 Copyright Act. Other cultural rights, which were a part of the balance in copyright law intended by the framers of the constitution, and were developed in US legal tradition, are being rapidly eroded by increasingly harsh laws that restrict the use and creation of culture.
Just as the Bill of Rights enshrined a core set of rights for citizens, the “Fair Use Bill of Rights” would enshrine a set of rights for consumers and creators of culture.
Please add items missing in the list, and correct errors of fact.
Another insightful quote from Siva V:
Copyright was designed to regulate only copying. It was not supposed to regulate one’s rights to read or share.
But now that the distinctions among accessing, using, and copying have collapsed copyright policy makers have found themselves faced with what seems to be a difficult choice: either relinquish some control over copying, or expand copyright to regulate access and use, despite the chilling effect it might have on creativity, community, and democracy.
The Digital Millennium Copyright act is a federal law enabling copyright holders to enforce copy-protection.
The so-called S-DMCA is a state-level initiative that extends content-owner’s control beyond copying, to control over access.
Siva V. , in a brilliant chapter on the clash between African-American artistic traditions, corporate greed, and copyright law.
“State and commercial institutions have assumed some of the functions of the public sphere, and political institutions, such as parties, have assumed advocacy roles in support of their patrons.
…. this transformation has led to a refeudalization of the public sphere. Large and powerful organizations such as corporations, labor unions, political parties, professional groups and interest groups bargain with the state and one another — often out of sight or mind of the public — to allocate resoureces, opportunities, and patronage.
These institutions still seek public support and the marks of legitimacy, but they do this through the exercise of publicity or public relations, not necessarily through contributions to rich public discourse.
Siva Vaidhanathan paraphrasing Jurgen Habermas, in the footnotes to chapter 1 of Copyrights and Copywrongs
Based on recent forays into the world of public-interest advocacy, this quote rings true. Advocacy in practice consists of small-group, backroom lobbying, and large-group marketing.
Advocacy pros often react with puzzlement to suggestions about public education. They have the consumer marketing stereotype: people don’t want to think, but will respond to packaged ideas. Which rings false to me, from small-scale first-hand observation. People don’t have infinite time to study issues and form opinions, so they’ll delegate opinion-making to others they trust. But when people care, they learn, and when they learn, they’re more likely to act. (Call me naive, and see if I grow out of it.)
The “lobbying-and-marketing” approach isn’t just an elitist power-grab by special interests. It’s a practical response to a scaling problem. Representative democracy is a solution to the problem of aggregating decision-making power. The “lobbying and marketing” strategy is a solution to aggregating the power to influence decisions. The Sierra Club and the NRA can get hundreds of thousands of people to donate, vote, and contact representatives.
Question of the decade — are there other effective ways to solve the scaling problem?
New research provides stronger evidence that social capital in the US is in decline.
In 1995, sociologist Robert Putnam published an article showing that Americans are less social then they used to be. The research was later published in a book, Bowling Alone.
Putnam analyzed attendance at men’s clubs (Elks, Lions), parent-teacher associations, and rural 4H clubs, and showed that these signs of social ties had been declining since about 1960.
The trouble with this analysis is that some of the longstanding organizations he studied had gone out of style like poodle skirts. It’s likely that there are fewer kids in 4H clubs because there are fewer kids on farms.
But in a somewhat more recent article, Putnam analyzes a wider range of data, including informal activities like going on picnics and eating with friends and family. The trend is still the same — a uniform decline in social engagement.
As people have become less socially engaged, the level of charity-giving has gone down, as measured by the percentage of income given to charity, and the level of trust in others has gone down, as measured in surveys.
Several thoughts on this, in contrasting directions.
A few data points that could show that things are as bad as they seem:
* if the “eating with family and friends” survey questions asked about eating at home, not eating out, then the questions are still missing the point. A strong study would include data about social meals at home and in restaurants.
* Time for Life is an excellent if rather dry book reporting a study on American’s use of time since the 1930s. The study shows that television watching has steadily crowded out most other hobbies and social activities since the 1950s. It would be interesting to measure the level of social engagement among demographic groups who have given up couch-potato TV for human-interactive internet communication.
On the other hand, take a look at new housing developments. Apartment complexes and subdivisions are built with walls and fences around them, even in low-crime areas. People are too afraid to have streets. After all, anyone could walk down the street, without any security checks at all.
Putnam’s numbers help explain the popularity of the prison-like architectural style, and the low level of protest at restrictions of freedom in the wake of 9/11.
via Clay Shirky on Corante’s Many to Many blog.