Stealing the Law

Who is stealing from whom in the development of our copyright laws?

I want to start this column by fulfilling a promise I made last week to Jack Valenti, the outgoing president of the Motion Picture Association of America, when he came to speak to Crimson editors about copyright law and the internet. Here it goes: Downloading or copying music or movies to which you have no “fair use” claim (this is probably true of most of the music you download) is illegal. Any given offense infringes upon an exclusive right to a monopoly bestowed upon the copyright holder by Congress, and they can sue you for it.

Further, if you willfully infringe on that right by copying works valued at more than $1,000 in total over the course of 180 days, you’ve committed a felony according to Chapter 5, section 506 of the United States Copyright Code. It’s also pretty obviously stealing, at some level: Consider that the subway service is another monopoly bestowed by the government, this time upon the MBTA. Much as with music sharing, the marginal cost to the government of your not paying your fare is very nearly nothing and yet I think most reasonable people would agree that it’s wrong to take a free ride.

But the positive question of whether or not downloading music is illegal (or even whether it’s “stealing” in the semantic sense of the word) is not, I don’t think, the correct question to be asking. Rather we ought to be asking ourselves how the notions and the codification of copyright, originally laid out in the Constitution and subsequently modified dozens of times to include such specific provisions as how many feet of bar space an establishment must have before they pay royalties on the music they play over their loudspeaker, conform with our intuitive judgments of the purpose copyright is to serve.

What are these judgments? Historically, copyright law has concerned itself, appropriately, with copying: the creator or copyright holder of a work had the exclusive right to control whenever a copy of their work was made. This is just about perfect with books or VHS tapes—we want creators to be able to control the distribution of their work such that they receive proper attribution and compensation, and yet we want to ensure that the people who buy it have the right to read, lend, sell, annotate, discuss or even burn their copy as they desire. This has been referred to as the right of private performance, and for a long time it was looked upon as sacrosanct.

Then, along came computers. For the first time ever, to make a “private performance” of a work requires making a copy in some meaningful sense. Some of you (who are reading this column on your own glorified copy machine) can see right now how important and easy copying things is by hitting the refresh button on this page a few times, and for those of you following along on paper, I encourage you to try this at home later tonight (or you can just take my word for it). Every time you play a DVD on your computer or take music from a CD and put it on your iPod you are potentially infringing upon somebody’s exclusive right, even though these uses are only for your own private purposes.

Barring such activities is clearly not the intent of copyright law. No one ever wanted to tell you that you couldn’t read a book that was printed in China or watch a video tape at the full quality allowed by your television set. What should have happened as technology pushed the powers of copyright law outside of their intended boundaries was a careful evaluation of how to frame additions to the code that bring it up to speed without breaking its underlying principals.

Unfortunately, this sort of balanced assessment has not been the impetus for changes in copyright law over the past quarter century. Consider for example section 114 of the copyright code, which more or less exempts satellite radio networks predating Jan. 1, 1995 from the obligation to obtain permission from a songwriter to rebroadcast their music. There were to my knowledge exactly two such networks before that date, XM Radio and Sirius, and it is wholly unsurprising that these remain the only two that are successful today. If you’d like to enter into this potentially lucrative industry, I recommend you start soon—it’ll take you a while as you’ll need to make about 100,000 phone calls asking songwriters for consent before you’ll be competitive.

To be fair, logrolling and special interest politics are nothing new—just about every major field of controversial political thought from health care to gun control is rife with controversy about expensive dinner parties and well-concealed rider bills. And most experts suggest that the solution to these problems is to call for more effective campaign finance reform. Still, the incremental and largely specialized changes to the copyright code have left it warped and on the verge of breaking. To apply it in any practical sense requires the consultation of obscure and confusingly-worded exceptions designed only with the protection of very specific rights (say, that of a librarian to create a single copy of an academic paper for his patrons) in mind. While broad changes in the way efficacious political discourse occurs in our government may be in order, we must also find ways to avert the more immediate potential crisis of lost potential for creativity and social advancement.

Consider as a final instructive example a highly controversial portion of the 1998 Digital Millennium Copyright Act (DMCA), which added to the copyright code (Chapter 12, section 1201) protection against the “circumvention of a technical measure” put in place to control access to copyrighted works. It is perfectly legal and not very difficult to manufacture a set of master keys that will allow you to open just about any deadbolt lock ever built, and it is evident that once you’ve purchased your house, if you’d like to pick the locks on your doors in such a way, no one can bother you about it. The DMCA ensures that this is not the case with copyrighted digital works.

The most public controversy surrounding these protections has to do with a particular form of encryption called CSS which is put on DVDs to restrict the ways in which their owners can use them. In particular, it prevents the disks from being played at full quality on any player not licensed for the purpose. This means that I could go out and buy a legal copy of a feature film, pay all of the necessary royalties to the copyright holder and still be unable to use it in private performance as I desire.

In fact, there exist no licensed players for the Linux operating system, so while the three million Linux users can all play DVDs on their computer using a clever program called DeCSS (versions of which have been written that are small enough to fit neatly on the back of a business card), to do so is a violation of federal law. It’s equivalent to selling a book on the express (though not explicitly agreed upon) stipulation that a whole group of potential readers couldn’t break a seal put on chapter 10. There’s nothing in the process of buying a DVD that forces you to accept this agreement, but rather the federal government has now bestowed upon the recording studio the right to tell you how to use your copy of a movie they made.

I don’t mean to make some sort of strict constructionist argument that we can’t violate the “framer’s intent” in updating copyright law or that somehow its fundamental purpose is sacred or inalterable. At the same time, we cannot tolerate the surreptitious enactment of additions to that code that alter it in powerful but inextensible ways just so the old business models of the creative industries are not put at risk. We must instead recognize that sharing and free access to information are fundamental features of the technological world we have stumbled upon, and we must find methods, subject to this constraint, to protect the rights of artists and consumers alike.

Matthew A. Gline ’06 is a physics concentrator in Quincy House. His column appears on alternate Mondays.