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Lessig: The Future of Ideas
Pages: 1, 2

Non-infringing Uses

If you're a fan of the Simpsons and you hang up pictures of Bart and Lisa in your room, that's effectively a non-infringing use of those images. No one knows or cares what pictures you hang in your room. But if you put Bart on your home page –- even though, as Lessig argues, fewer than 100 people may ever see that page –- you may well get a letter from Fox's lawyers, because now you're a publisher, now you're stealing copyright images. And while no one will go pulling posters down from teenagers' closet doors, Fox can easily deploy bots to look for Simpson images and alert the lawyers; use that was formerly no one's business is now a matter for the lawyers. "As activity that would be permitted in real space moves to cyberspace, control over that activity has increased."

"The use that you thought was non-infringing becomes infringing when code enables them to check."

If you can copy a CD onto cassette, why can't you make a digital copy of it? (It is, after all, digital already.) And if you can make a digital copy on your computer, why can't you put your copies on a server, where you can get to it whenever you want? That was MP3.com's thinking when they created MyMP3.com. They copied thousands of CDs and created a service where you could listen to your own CDs online, once you proved you actually owned the CD by inserting it in your PC to register it. Copying thousands of CDs for a Web-based service? Bad idea. Building a business built on someone else's intellectual property? Really bad idea. The RIAA sued, received a $110 million judgment, and MP3.com is now owned by Vivendi Universal.

So you have no Napster and you have no MyMP3.com, and you quietly copy your own CDs to your hard drive. No one can complain about that, can they? But: "Unauthorized duplication is a violation of applicable laws," as it says on the packaging. If, say, the next version of Windows checked for unauthorized copies of CDs on your hard drive, what would you say when they hauled you into court? Fair use? Remember what the Hollywood lawyers say, according to Lessig: Buying a CD gives you a license to do certain things with it. Those rights may or may not include ripping it to your hard disk. The use that you thought was non-infringing becomes infringing when code enables them to check, just like the bots that look for pictures of Bart and Lisa on home pages.

Fair Use and the DMCA

The DMCA's anti-circumvention provisions make it a crime to distribute code that "circumvents" (cracks) any encryption technology designed to protect copyright material. Most famously, the MPAA used this provision to block distribution of DeCSS, software that cracks the DVD scrambling software. You can't play a DVD unless your machine knows how to decode the scrambled content. Since Linux machines aren't licensed to play DVDs, Linux users couldn't play DVDs. And Linux users hate it when they can't do something. The result was DeCSS, a program that let you play DVDs on machines that weren't licensed (that is, whose manufacturers hadn't paid MPAA a fee.) According to Lessig, CSS didn't prevent copying of discs, so DeCSS didn't result in increased piracy, just in the ability of Linux users to play DVDs.

So the question is raised: since copyright law allows for fair use, then isn't cracking the code that prevents the fair use -– the ability to play a legally purchased DVD on a computer of one's choosing -– protected? Shouldn't the courts allow distribution of this code under the fair use doctrine? Lessig's position is that "if copyright law must protect fair use… Then laws protecting code protecting copyright material should also leave room for fair use."

The courts are not impressed with this line of reasoning, however; in the original case, the court ruled that DMCA is law that regulates code, not copyright. That decision was upheld on appeal, the justices firmly rejecting arguments that DeCSS should be allowed on fair use or First Amendment grounds. The case could go to the Supreme Court. It should be clear by this point, however, that the DMCA stands, and that unlicensed use of copyright material, as well as attempts to circumvent encryption schemes on DVDs or any other media, are illegal and will be vigorously prosecuted. No one should expect the high court to overturn DMCA.

Perhaps a purer test of the DMCA's anticircumvention provisions is the federal case against Dmitri Sklyarov, the Russian programmer who wrote the "Advanced Ebook Processor," a program that allows users to disable the copy-protection software on Adobe's Ebook Reader. This is a direct violation of the non-circumvention clause of the law. After arresting Sklyarov and then requiring him to stay in northern California, the feds have dropped the charges against the programmer in exchange for his testimony against his employer, Moscow-based Elcomsoft. As a corporation, Elcomsoft faces only penalties, not jail time for its principals. The court case is expected to be tried in early summer of 2002.

What is Lost?

Lessig's dark vision is that the "commons of innovation" is coming to an end, replaced with a brave new world that looks suspiciously like the old one, with copyright protections expanded to the point of absurdity, fair use effectively done away with, and patents blocking the development of new ideas.

Napster is dead. You can't watch DVDs on a Linux machine. You can't listen to your own CDs from a server. You can pay the record labels to download music from their services, but you can't listen to the product you bought on a certain device capable of playing it. Your cable company can dictate how you can use the Internet, and it can limit uses like streaming video that compete with its own monopoly business. To all of the sad stories Lessig tells in The Future of Ideas, add the Bush Administration's battering down of privacy and civil liberties on the Internet and in the real world in the campaign against terrorism at home.

The "really good years" of the counterculture ended not with a whimper but with the bang of National Guard rifles at Kent State. While it seems absurd to compare the death of Napster to the death of the Ohio protesters, there is a sense that a clampdown has occurred. In the 1970s, it was the government that clamped down. In the 2000s (what do we call this decade?) it's Hollywood. That seems fitting.

But even though the counterculture was buried and the radicals got jobs on Madison Avenue, the impact of the 1960s continues to affect American art, culture, and politics 40 years later. Similarly, the great insights of the early Net, as well as the creative breakthroughs of the Napster era, will continue to affect the Internet and world culture for years to come. These ideas will continue to shake the world, but more quietly now.

The revolution will not be televised but it is being streamed in your choice of 56K or 300K streams, in either Real or Microsoft formats. Just read the user license agreement and click "I Agree."

Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.

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