Wherefore Thou Art #19
Virtual Barbed Wire Around Your Culture

Digital, wired communications have been a godsend to many of us. I couldnít do what I do here in Housatonic without my broadband connection and the internet. But thereís another side to this coin: the ease and speed the digital world has dramatically altered the relationship between owners of copyrighted works and the end-users of these works. Itís a relationship that always has and always will have problems around the edges, but now the edges have gotten a lot bigger.

Almost every type of tangible creative expression can now be easily copied into a digital formatóreduced to a string of xís and oís that can be burned onto a disk that you can put in your pocket. In 1990 Professor Paula Samuelson identified some things that make digital media different than what we had before:

  1. ease of copying (click, click)
  2. ease of transmission (the internet)
  3. plasticity of digital media (Photoshop, ProTools, Word, etc. If itís digital, you can change it)
  4. equivalence of works (if everything is digital, are they now all the same medium? Are songs, paintings and books now all thesame thing because they are all now nothing but code?
  5. compactness of works (all of the music in your prized record collection that occupied an entire wall can now fit into a gizmo the size of a deck of cards)
  6. ability to search and link (you can find anything instantly with a search engine, you tie everything together (even stuff thatís not yours) with hyperlinks)

The age-old dilemma of whether a John Lennon album gets indexed with the Lís or the Bís is now easily solved. You either cross-reference it, or you can make a copy and file it in both places! Ta Da!

All these things have created a veritable information utopia for Joe and Joanne Laptop, a new world that many of us revel in every day. But the very things that make our lives better also tend to make many copyright owners, from the lowliest poet to (especially) the large media conglomerates, extremely nervous.

It comes down to this: how are copyright owners supposed to make money selling copies of their works, when copies can be so easily, perfectly, and quickly duplicated, altered and passed on to others?

One thing the copyright owners have done was to get a law enacted, a huge, incomprehensible mass of goobledy-gook entitled The Digital Millennium Copyright Act of 1998, or the DMCA. This law, such as it is, is the result of hard-ball lobbying, international treaty manipulation, and some compromises among corporate stakeholders, and is largely a legislative fastball whizzed by a Congress that, to the extent it was paying attention, bought into the Chicken Little cries of Big Media that an unrestrained digital world would bring about the collapse of the film, music, print, and television industries.

Among the many controversial aspects of the DMCA is a section that deals with what is called ďanti-circumvention.Ē The law says that ď[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.Ē What that means is that if a copyright owner decides to put a little digital fence around a copyrighted work that restricts your access to the work, you could be in big trouble if you try to climb over the fence without the copyright ownerís permission. The law provides for both civil and criminal penalties, which means if you climb over somebodyís digital fence, you could both lose your house AND go to jail.

Maybe on the surface this looks reasonable. You shouldnít take whatís not yours, right? But consider this. We are talking here about copyrighted works, works of original creative expression. For as long as there has been copyright protection (which has only been for a couple hundred years) there has always been a doctrine of fair use. Fair use recognizes that there are a great many instances where people ought to be free to use copyrighted works without having to get the permission of the copyright owner and certainly without paying the copyright owner. Research, criticism, educational use, and news reporting are classic examples of fair uses.

Also, there has always been something called the first sale doctrine, which says that once a copy of a copyrighted work has been purchased, the buyer can pretty much do what he or she wants with the copy. The copy can be sold, given away, whatever, and you donít need the copyright ownerís permission. Donít like that new Usher CD? Give it to your dorky brother. Maybe heíll like it.

Then there are libraries. Repositories and free lenders of all sorts of things, including copyrighted works.

Add together fair use, the first sale doctrine, and libraries, and youíve got a good start at defining civil discourse and a free and democratic society.

What the anti-circumvention provisions of the DMCA do is allow for copyright holders to destroy fair use, eviscerate the first sale doctrine, and prevent the expansion of libraries into the digital realm. If itís now a crime to view copyrighted materials because the copyright owner has placed the work behind a digital fence, you canít exercise your fair use privilege. You need to negotiate with the copyright holder to get through the fence. And the copyright holder can put conditions on letting you through the fenceómaybe you can only look (or listen) once, or just for an hour, maybe you canít touch, and you canít take away a copy that you might decide to pass on to a friend or excerpt in the creation of a new work.

In the black hearts of corporate media boardrooms, thereís been a long-standing and deep-seeded loathing of fair use, first sale, and yes, of libraries. These things have never been good for shareholder value. And with the anti-circumvention provisions of the DMCA, Big Media got a big part of their wish list. Essentially, the DMCA gives copyright holders in the digital realm a whole lot more in the way of ownership rights than they ever had in the non-digital world, and these strengthened ownership rights are to the detriment of everybody else.

And if you think this is progress, maybe youíd better think again.

© 2004 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.