|
ew York Times
January 25, 2004
The Tyranny of Copyright?
By ROBERT S. BOYNTON
Last fall, a group of civic-minded students at Swarthmore College received a
sobering lesson in the future of political protest. They had come into
possession of some 15,000 e-mail messages and memos -- presumably leaked or
stolen -- from Diebold Election Systems, the largest maker of electronic voting
machines in the country. The memos featured Diebold employees' candid
discussion of flaws in the company's software and warnings that the computer
network was poorly protected from hackers. In light of the chaotic 2000
presidential election, the Swarthmore students decided that this information
shouldn't be kept from the public. Like aspiring Daniel Ellsbergs with their
would-be Pentagon Papers, they posted the files on the Internet, declaring the
act a form of electronic whistle-blowing.
Unfortunately for the students, their actions ran afoul of the 1998 Digital
Millennium Copyright Act (D.M.C.A.), one of several recent laws that regulate
intellectual property and are quietly reshaping the culture. Designed to
protect copyrighted material on the Web, the act makes it possible for an
Internet service provider to be liable for the material posted by its users --
an extraordinary burden that providers of phone service, by contrast, do not
share. Under the law, if an aggrieved party (Diebold, say) threatens to sue an
Internet service provider over the content of a subscriber's Web site, the
provider can avoid liability simply by removing the offending material. Since
the mere threat of a lawsuit is usually enough to scare most providers into
submission, the law effectively gives private parties veto power over much of
the information published online -- as the Swarthmore students would soon
learn.
Not long after the students posted the memos, Diebold sent letters to
Swarthmore charging the students with copyright infringement and demanding that
the material be removed from the students' Web page, which was hosted on the
college's server. Swarthmore complied. The question of whether the students
were within their rights to post the memos was essentially moot: thanks to the
Digital Millennium Copyright Act, their speech could be silenced without the
benefit of actual lawsuits, public hearings, judges or other niceties of due
process.
After persistent challenges by the students -- and a considerable amount of
negative publicity for Diebold -- in November the company agreed not to sue. To
the delight of the students' supporters, the memos are now back on their Web
site. But to proponents of free speech on the Internet, the story remains a
chilling one.
Siva Vaidhyanathan, a media scholar at New York University, calls anecdotes
like this ''copyright horror stories,'' and there have been a growing number of
them over the past few years. Once a dry and seemingly mechanical area of the
American legal system, intellectual property law can now be found at the center
of major disputes in the arts, sciences and -- as in the Diebold case --
politics. Recent cases have involved everything from attempts to force the Girl
Scouts to pay royalties for singing songs around campfires to the infringement
suit brought by the estate of Margaret Mitchell against the publishers of Alice
Randall's book ''The Wind Done Gone'' (which tells the story of Mitchell's
''Gone With the Wind'' from a slave's perspective) to corporations like Celera
Genomics filing for patents for human genes. The most publicized development
came in September, when the Recording Industry Association of America began
suing music downloaders for copyright infringement, reaching out-of-court
settlements for thousands of dollars with defendants as young as 12. And in
November, a group of independent film producers went to court to fight a ban,
imposed this year by the Motion Picture Association of America, on sending
DVD's to those who vote for annual film awards.
Not long ago, the Internet's ability to provide instant, inexpensive and
perfect copies of text, sound and images was heralded with the phrase
''information wants to be free.'' Yet the implications of this freedom have
frightened some creators -- particularly those in the recording, publishing and
movie industries -- who argue that the greater ease of copying and distribution
increases the need for more stringent intellectual property laws. The movie and
music industries have succeeded in lobbying lawmakers to allow them to tighten
their grips on their creations by lengthening copyright terms. The law has also
extended the scope of copyright protection, creating what critics have called a
''paracopyright,'' which prohibits not only duplicating protected material but
in some cases even gaining access to it in the first place. In addition to the
Digital Millennium Copyright Act, the most significant piece of new legislation
is the 1998 Copyright Term Extension Act, which added 20 years of protection to
past and present copyrighted works and was upheld by the Supreme Court a year
ago. In less than a decade, the much-ballyhooed liberating potential of the
Internet seems to have given way to something of an intellectual land grab,
presided over by legislators and lawyers for the media industries.
In response to these developments, a protest movement is forming, made up of
lawyers, scholars and activists who fear that bolstering copyright protection
in the name of foiling ''piracy'' will have disastrous consequences for society
-- hindering the ability to experiment and create and eroding our democratic
freedoms. This group of reformers, which Lawrence Lessig, a professor at
Stanford Law School, calls the ''free culture movement,'' might also be thought
of as the ''Copy Left'' (to borrow a term originally used by software
programmers to signal that their product bore fewer than the usual amount of
copyright restrictions). Lawyers and professors at the nation's top
universities and law schools, the members of the Copy Left aren't wild-eyed
radicals opposed to the use of copyright, though they do object fiercely to the
way copyright has been distorted by recent legislation and manipulated by
companies like Diebold. Nor do they share a coherent political ideology. What
they do share is a fear that the United States is becoming less free and
ultimately less creative. While the American copyright system was designed to
encourage innovation, it is now, they contend, being used to squelch it. They
see themselves as fighting for a traditional understanding of intellectual
property in the face of a radical effort to turn copyright law into a tool for
hoarding ideas. ''The notion that intellectual property rights should never
expire, and works never enter the public domain -- this is the truly fanatical
and unconstitutional position,'' says Jonathan Zittrain, a co-founder of the
Berkman Center
|
| |
| |
|
