“Fair use” rights on the Internet(fighting for free culture)

Lee Tien

Electronic Frontier Foundation

www.eff.org

DragonCon 2002

Legal focus

• Copyright law, esp. “indirect infringement”

• Digital Millennium Copyright Act (DMCA)– Anti-circumvention acts– Anti-circumvention technology

• You can’t show others how to do it

• Legal basis for DRM . . . .

DRM policy issues

• Who controls technology and innovation?

• Who controls speech?

• Who controls culture?

Lessig’s refrain: free culture

• Creativity and innovation always build on the past

• The past always tries to control the creativity that builds on it

• Free societies enable the future by limiting this power over the past

• Ours is less and less a free society

This isn’t about wiping out CR!

• “free” as in free software, not free beer

• Artists must survive and thrive

• It’s about restoring balance to CR

• Consumer rights

• Technologists’ rights

• Public domain is a cultural commons

In 1790, culture was free

• Copyright only covered printing

• Didn’t cover derivative works

• CR lasted only 14 years!

• CR was very limited business regulation

“Fair use” misleading

• CR about copying

• We do lots with works that aren’t copying

• Reading isn’t “fair” use, it’s unregulated use

• Only some uses are even regulated by CR

• “Fair use”: unauthorized regulated uses

• Unregulated, regulated, and fair uses

• Miss the point if focus only on fair use

Really a fight for unregulated use

• But I’ll call both fair use• If “absolute” CR, these would be illegal• Playing a song — singing a song —filksinging• Copying news article for your files• Clipping a movie frame for a review• Reverse-engineering computer program• Cutting out cartoon and pasting it on office door

What are we doing about it?

• 2600 (DVD/DeCSS)

• Felten v RIAA; Xbox

• Sklyarov/ElcomSoft

• ReplayTV: consumer fair use

• MusicCity/Morpheus: P2P innovation

• BPDG: SSSCA/CBDTPA/broadcast flag

Background of culture control

• Patent protects ideas/inventions

• CR protects expression (not ideas or facts)

• DMCA protects “access” (digital locks)

• Pseudo-IP law– Trade secret really contractual– Trademark really unfair competition– “Trespass to chattels”

Content owners’ rhetoric

• IP = property

• All unconsented uses = theft

• If might reduce revenues = theft

• Like skipping commercials on TV

• Copyrighted works have never been like other property!

CR is a bargain

• Authors’ rights are means to an end

• Promote progress of science and arts

• Authors get fair return

• Consumers/public get unregulated, fair uses– We can talk about and use others’ ideas– Eventually expression enters public domain

• Public interest in anti-monopoly

Author v. consumer rights

• Copying, adaptation, distribution, public display/performance (many exceptions)

• No rights over private display/performance

• No rights over unregulated uses/facts/ideas

• “Limited” times

• “First-sale” for lawful copies

• Fair use

1928: Disney created Mickey

• Mickey Mouse in “Steamboat Willie”

• Parody of Buster Keaton’s “Steamboat Bill”

• Would Walt call this “theft” today?

• What about Grimm’s Fairy Tales?

• Disney empire built on others’ works

• Creativity, not “theft”

Massive expansion of CR

• 14 years in 1790 (renew for 14 if alive)

• 42 years in 1831

• 56 years in 1909

• Expanded 11 times since 1962

• Today: life of author + 70 years

• Plus: scope of CR much broader

Today’s insanity

• Documentary film on education in America

• Shot classroom with TV playing in back

• Film shows 2 seconds of Homer Simpson

• Calls Matt Groening (friend): no problem

• But lawyers said $25,000

• And we haven’t even gotten to the Internet

refrain

• Creativity and innovation always build on the past

• The past always tries to control the creativity that builds on it

• Free societies enable the future by limiting this power over the past

• Ours is less and less a free society

Why does EFF care?

• 3 big modern tech changes

• Everyone thinks about Internet transmission

• #2: w/computers, all copies, all the time

• Presumptively all you do on machine or network is regulated use (copy to read)

• We’re left arguing about tiny bit of fair use

• What about ordinary unregulated uses?

Tech change #3

• Electronic works need devices to play/read

• Control of use can be built into tech

• IP owners always knew this

• But not as long as tech makers independent

• Reverse-engineering = right to tinker

• Total control requires control of tinkering

EFF’s concern: culture control

• DRM upsets CR bargain

• All uses regulated by law + tech

• IP can censor (less use of DRMed works)– Chokepoint pressure (Scientology v Google)

• Harm to competition

• Harm to innovation

Betamax: last great CR case

• We usually think about direct infringement

• But also indirect– Contributory: knowledge + material contrib– Vicarious: control + financial benefit

• Betamax raised Q: what about devices?– Movie studios wanted to stop VCR because

could be used to infringe

1984 Supreme Court decision

• “time-shifting” = fair use• More important: can’t bar device for indirect infringement if– “capable of substantial non-infringing uses”

• Defines border between CR, innovation– Why we have browsers, PCs, CD-RW– Just because you own movies doesn’t mean you

get to control every tech that can play movies

Everything has changed

• Betamax about fair use but protected unregulated uses because tech makers free

• And CR owners didn’t attack users

• We were too complacent

• CR owners saw 200-year-old biz model of fee-per-copy disappearing in digital world

• Lobbied for barrage of new laws

Decade of new laws

• 1992 Audio Home Recording Act (SCMS)

• 1995 Digital Performance Right in Sound Recordings Act (new performance right)

• 1997 No Electronic Theft Act (crim CR)

• 1998 Copyright Term Extension Act

• 1998 DMCA

• 2002 SSSCA/CBDTPA/broadcast flag?

Rise of DRM

• Serves “copyright maximalism”

• All unconsented uses = theft

• Crypto, watermarks applied to digital works

• Devices must obey CR owners’ commands

• No tinkering

DRM upsets CR bargain

• Public supposed to be able to use works w/o owner permission

• But DRM builds digital locks/fences (TPM)

• And DMCA anti-circumvention rules

• Can’t break TPM even if law permits use– Like using DeCSS to play DVD on Linux

• Can’t disseminate tech for others

What you can’t do if DRM

• Play copy-protected CDs on computer

• Play DVDs on players they don’t control

• Skip commercials by fast-forwarding

• “Clip” from copy-protected works

• Make backups

• Even if law says you can, tech says you can’t

eBooks, Sklyarov, Elcomsoft• Adobe eBook Reader software = DRM• Middlemarch (public domain)

– copy 10 selections to clipboard every 10 days– print 10 pages every 10 days

• Aristotle’s Politics (PD)– Can’t copy– Can’t print– Can have it read aloud

Enter AEBPR

• Adobe eBook Reader is crippled PDF

• ElcomSoft software allows use of third-party PDF readers

• So you can transfer to other computer/PDA– Or read on unsupported OS like Linux– Or make backup

• Only worked on lawfully purchased eBooks

ReplayTV: Betamax again

• It’s a DVR like Tivo, allows digital recording of broadcast

• Also automatic commercial skipping

• Hollywood argues indirect infringement

• We represent 5 ReplayTV owners

• Asking court to say this is fair use

Innovation/competition

• Hollywood, RIAA have great market power– If your device can’t play their works, no market

• They agree to use crypto to lock their works

• DMCA says, can’t unlock w/o consent

• So all tech makers must get license (K)

• So Hollywood/RIAA can dictate design

• Even not related to infringement

DMCA keeps tech in line

• CR owners decide what features

• Stifles scientific speech (Felten etc.)

• Stifles reverse-engineering (BnetD)

• Subsidizes weak security (SDMI, HDCP)

• Legal perils if research security weaknesses

• Public won’t learn truth about security holes

EFF on P2P

• We see P2P as potentially awesome app for Internet

• More efficient bandwidth utilization

• More democratic Net communication

• More resistant mode of publishing (against censorship): FreeNet?

P2P & MusicCity

• Are P2P systems legally responsible for users’ infringements?

• Not pure music service -- platform for content publication of all types

• No control over or knowledge of user acts

• Truly decentralized -- MusicCity’s servers go down, users can still share files

Betamax again

• About controlling new technology

• Qualcomm responsible for what you send using Eudora?

• Imagine world if Hollywood had tech veto

• Artists’ compensation a real issue for which we have no answer

• But answer can’t be Hollywood veto power

Latest big battle: BPDG

• Making world safe for content owners

• Cripple tech to prevent infringement

• SSSCA/CBDTPA/broadcast flag (FCC)

• “police state in every computer”

• Analog hole: block A-D conversion

• P2P: Berman bill is digital vigilantism

• Valenti: war against terrorists (us)

refrain

• Creativity and innovation always build on the past

• The past always tries to control the creativity that builds on it

• Free societies enable the future by limiting this power over the past

• Ours is less and less a free society

We need your help

• Speech, innovation, culture at stake

• We’re fighting Hollywood and Washington

• Most people still don’t understand what’s happening

• How much have you given to the other side by buying CDs/DVDs or watching movies?

• Join EFF!