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"The Heavenly Jukebox," by Charles C. Mann (September 2000)
Recent coverage of the spread of "contraband" music on the Internet has missed some basic points. Chief among them: the fight against Internet piracy is being led by a peculiar and grasping business -- the recording industry -- that should not be allowed to set the rules.

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WEB-ONLY SIDEBAR | September 2000

The Baby and the Bathwater

An e-mail exchange with the international copyright expert P. Bernt Hugenholtz

P. Bernt Hugenholtz is the co-director of the Institute for Information Law at the University of Amsterdam and head of the Intellectual Property Task Force of the Legal Advisory Board of the European Commission. Since receiving his law degree at the University of Groningen, Hugenholtz has written numerous books, studies, and articles on a range of topics involving copyright and information technology, notably on the protection of computer software and databases, and copyright problems relating to the Internet and the emerging networked world. Although he is a strong advocate of copyright, Hugenholtz in recent years has warned that efforts to protect copyright on the Internet are going too far too fast. In an e-mail exchange, The Atlantic Monthly's Charles C. Mann asked him to describe what worried him.

You've described how the "fear and greed" of copyright holders and content users are interacting to push publishers to impose ever more restrictions on the freedom of readers and listeners and to push users to copy ever more material without paying for it. What consequences are you most worried about?

I'm not worried about rightsholders enforcing copyright against pirates or other unauthorized users, either online or offline. Taking down Web sites containing illegal MP3s or other pirated content is a perfectly legitimate thing to do. I'm not even worried about enjoining Napster or similar intermediaries from being instrumental in the mass-scale swapping of illegal content. In fact, the Napster injunction came as no surprise to me.

What does worry me is the ongoing tendency of copyright to proliferate, to become overprotective. In the old days of analog media (say, five years ago) the copyright monopoly was limited to acts of exploitation -- book publishing, public performance, broadcasting, etc. In the digital environment, because acts of usage necessarily involve some sort of digital copying, the monopoly has expanded to include every conceivable act of transmitting, viewing, receiving, or simply using a copyrighted work. In the old days, reading a book and listening to music were irrelevant acts (from a copyright perspective). In the digital environment, this has changed fundamentally -- and in so doing the balance between copyright and freedom of expression and information is undermined.

And there's more reason for concern. The potential of using "code" (information technology) and contracts as substitutes or add-ons to copyright threatens to further erode existing freedoms. In a nightmare scenario, conditions of use preprogrammed into information products will largely determine what end users may or may not do. Even if, for example, the law would recognize a right to use samples of a musical work for the purpose of quotation or criticism, the code/contract layer would effectively prevent such legitimate use. If this scenario becomes reality, not only will all forms of piracy be eradicated, but what little is left of freedom of expression will be as well. It is one of the great challenges of modern-day copyright law not to throw away the baby with the bathwater.

You're saying that because reading something online or playing a music or video file necessarily involves making copies on a computer's hard disk and in its RAM that suddenly laws about copyright come into play when you're simply reading or listening -- a situation that would have been unimaginable before. Similarly, you're arguing that the kind of click-on licenses customary in the online world have worrisome implications, because the licenses may, for instance, prohibit people from sharing or lending digital texts and recordings in the way that they now can share or lend books and compact discs. But what is the legal basis for such fears? In the United States, for instance, people have rights to "fair use" that are provided by federal law. Wouldn't those rights simply override the restrictions imposed by click-on licenses? Wouldn't I more or less automatically have the right to make the digital copies necessary to read an online book I lawfully purchased or borrowed?

The relationship between copyright exemptions (such as fair use) and contract law is a very difficult, and as yet largely unresolved, legal issue. The copyright laws do not tell us whether it is possible to "contract around" (i.e., override by license) the user freedoms the copyright laws provide.

Various legal doctrines may play a role. First, preemption: federal statutes may not be undermined by state law. Since copyright law in the U.S. is a federal prerogative, and contract law is largely a matter for the states, you could argue that federal copyright exemptions prevail, by definition, over the more restrictive terms of a state license. Second, fundamental rights or public interest considerations: one might argue that certain user freedoms reflect fundamental freedoms or other values of such general public interest that they may not be "contracted away." This has been expressly recognized in the otherwise rather "license-friendly" Uniform Computer Information Transactions Act (UCITA) [which is presently under consideration in many state legislatures in the U.S.]. Freedom of speech is an example of such a fundamental freedom. I think we would all agree that a license preventing users from reviewing or criticizing an information product would be invalid.

Still, there's nothing in the Copyright Act to indicate that exemptions are indeed mandatory, not merely default rules. The European directives on computer programs and databases are unique in that they do provide for a set of non-overridable user freedoms, such as the right to make back-up copies, to study and even reverse engineer a program, etc. From a user's perspective Belgium is paradise; here, due to a recent amendment that went largely unnoticed, all copyright limitations are declared mandatory.

I didn't know that. In this country the Digital Millennium Copyright Act (DMCA) prohibits people from going around "technological measures" that publishers take to protect their copyrights. Many free-speech activists believe that this will inhibit people's freedom -- they point to the current DeCSS litigation, in which some volunteer programmers tried to make software to play their lawfully acquired DVDs on their computers and were sued by the motion picture studios. (The plaintiffs use the Linux operating system, which doesn't have any DVD software, so they were trying to write their own.) Does the Belgian law mean that you simply can't prohibit certain user freedoms? What would that mean for the DMCA? Can Americans go to Belgium to ignore it?

I'm not advocating the Belgian solution as a model. In fact, I don't believe all exemptions should be made non-overridable. For example, under existing U.S. copyright law many bars and restaurants are exempted from paying royalties for music performed (over the radio) on their premises -- a typical example of an exemption which was lobbied into the Copyright Act by a powerful pressure group. What if a restaurant owner would voluntarily agree to pay royalties, say, as part of a larger licensing package that would involve other uses as well? I don't see why such an agreement would have to be invalid.

The point is: some exemptions are more important than others. Depending on the rationale of a particular exemption, it may or may not be overridable.

Also, making all copyright exemptions non-overridable wouldn't solve all our free-speech concerns. We would still be faced with the threat of "code" (technological measures) preventing users from performing acts of legitimate use, or invoking copyright exemptions in practice. The code versus exemptions debate is at the heart of the DMCA controversy.

A similar debate is currently heating up in Europe in the context of the forthcoming European Copyright Directive. According to the latest draft, which was adopted by the Member States in June but still awaits approval by the European Parliament, [European Union] member states may take certain pro-active measures if it turns out technological measures would prevent legitimate users from invoking copyright exemptions. What measures, the Directive doesn't tell us. Perhaps publishers will be compelled to deposit unencrypted copies of technologically protected works at national libraries or archives for public inspection. Maybe publishers will have to supply unencrypted copies on demand of legitimate users. We'll have to see how the member states will implement the directive in the years to come.

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