“fair use” rights on the internet (fighting for free culture) lee tien electronic frontier...

“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!