1. Copyright Policies: Past, Present, and Future Tracy B. Mitrano Cornell University TBM3@cornell.edu Tracy B. Mitrano Cornell University TBM3@cornell.edu Steven L. Worona EDUCAUSE sworona@educause.edu Steven L. Worona EDUCAUSE sworona@educause.edu

2. 2 Agenda The printing press, English law, the American Constitution, and Mark Twain (Tracy) Advancing technology: From player pianos to the Web (Steve) Copyright law today vs copyright policy tomorrow (Tracy) Copyright’s top 5 myths (Steve) Discussion and Q&A (All) The printing press, English law, the American Constitution, and Mark Twain (Tracy) Advancing technology: From player pianos to the Web (Steve) Copyright law today vs copyright policy tomorrow (Tracy) Copyright’s top 5 myths (Steve) Discussion and Q&A (All)

3. 3 The Printing Press and the Book From monasteries to movable type Printing press (Western) 1436/7 Critical component of Protestant Reformation Rise of literacy and individual interpretation of the Bible (And if we believe Weber…Capitalism…) Query: now that it is invented, how – and who – is going to control it? Stationer’s Company 1557 Absolute monarchy of Tutor reign and monopoly control De facto “copyright law” and the foundation of “exclusive rights” – but neither “natural” nor property Publishers as the arm of the crown From monasteries to movable type Printing press (Western) 1436/7 Critical component of Protestant Reformation Rise of literacy and individual interpretation of the Bible (And if we believe Weber…Capitalism…) Query: now that it is invented, how – and who – is going to control it? Stationer’s Company 1557 Absolute monarchy of Tutor reign and monopoly control De facto “copyright law” and the foundation of “exclusive rights” – but neither “natural” nor property Publishers as the arm of the crown

4. 4 Anglo-American Copyright Law Statute of Anne 1709 For authors first, not publishers Following the political economic trends of modern individualism and capitalism Fourteen years of protection, renewable for another fourteen Stationer’s rights for 21 years to publish Limits introduced concept of “public domain” and thus: Aided democracy by providing information for informed, deliberative citizenry Balance interests of incentive for authors, rights for publishers and needs of public Statute of Anne 1709 For authors first, not publishers Following the political economic trends of modern individualism and capitalism Fourteen years of protection, renewable for another fourteen Stationer’s rights for 21 years to publish Limits introduced concept of “public domain” and thus: Aided democracy by providing information for informed, deliberative citizenry Balance interests of incentive for authors, rights for publishers and needs of public

5. 5 Anglo-American Copyright Law Constitutional Convention Washington: access to information required to maintain an informed citizenry as bulwark against tyranny (i.e. public domain) Jefferson: fear of monopolies caused him to winnow author’s/publishers protection (i.e. no exclusive rights, and very limited years) Madison: copyright not property, but policy, balancing incentive with learning and progress. Article I, section 8: Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Constitutional Convention Washington: access to information required to maintain an informed citizenry as bulwark against tyranny (i.e. public domain) Jefferson: fear of monopolies caused him to winnow author’s/publishers protection (i.e. no exclusive rights, and very limited years) Madison: copyright not property, but policy, balancing incentive with learning and progress. Article I, section 8: Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

6. 6 Copyright Law of 1790 Exclusive right From Stationers… Still with us… Fourteen years, renewable once From Statute of Anne Now for individual 70 years plus life of author Registration required Policy, not property Not now, except for damages But nota bene the scope: books, maps… Specific Not now, general: “original work in a tangible medium” Exclusive right From Stationers… Still with us… Fourteen years, renewable once From Statute of Anne Now for individual 70 years plus life of author Registration required Policy, not property Not now, except for damages But nota bene the scope: books, maps… Specific Not now, general: “original work in a tangible medium”

7. 7 Through thick and thin: Mark Twain “Thin” copyright protection goes with copyright poor and developing countries, like US in 19 th century, or Asia today “Thick” copyright protection goes with developed, or copyright rich and developed countries like Britain in 19 th century or US in 20 th and today. Mark Twain signaled the transition by advocating for greater protection (life plus 50 years) and legitimating claim by basing copyright on “property” rights N.B. Intellectual Property a term coined in 1967 “Thin” copyright protection goes with copyright poor and developing countries, like US in 19 th century, or Asia today “Thick” copyright protection goes with developed, or copyright rich and developed countries like Britain in 19 th century or US in 20 th and today. Mark Twain signaled the transition by advocating for greater protection (life plus 50 years) and legitimating claim by basing copyright on “property” rights N.B. Intellectual Property a term coined in 1967

8. 8 Advancing Technology

9. 9 “Technology is disruptive; Information Technology is really disruptive.” –Shirley Ann Jackson “Technology is disruptive; Information Technology is really disruptive.” –Shirley Ann Jackson

10. 10 Advancing Technology Player pianos Supreme Court: Not infringement (1908) Phonograph records Congress: Infringement + compulsory licensing (1909) Radio Courts plus new business model (1920’s) Broadcast TV over cable Supreme Court: Not infringement (1966, 1974) Congress: Infringement + compulsory licensing (1976) VCR’s 1974-1984, 5-4 Supreme Court decision DAT Unique resolution: Legally limit the technology (1992) Tivo Time-shift, store, play back, edit, … Player pianos Supreme Court: Not infringement (1908) Phonograph records Congress: Infringement + compulsory licensing (1909) Radio Courts plus new business model (1920’s) Broadcast TV over cable Supreme Court: Not infringement (1966, 1974) Congress: Infringement + compulsory licensing (1976) VCR’s 1974-1984, 5-4 Supreme Court decision DAT Unique resolution: Legally limit the technology (1992) Tivo Time-shift, store, play back, edit, …

11. 11 Advancing Technology Player pianos Supreme Court: Not infringement (1908) Phonograph records Congress: Infringement + compulsory licensing (1909) Radio Courts plus new business model (1920’s) Broadcast TV over cable Supreme Court: Not infringement (1966, 1974) Congress: Infringement + compulsory licensing (1976) VCR’s 1974-1984, 5-4 Supreme Court decision DAT Unique resolution: Legally limit the technology (1992) Tivo Time-shift, store, play back, edit, … Player pianos Supreme Court: Not infringement (1908) Phonograph records Congress: Infringement + compulsory licensing (1909) Radio Courts plus new business model (1920’s) Broadcast TV over cable Supreme Court: Not infringement (1966, 1974) Congress: Infringement + compulsory licensing (1976) VCR’s 1974-1984, 5-4 Supreme Court decision DAT Unique resolution: Legally limit the technology (1992) Tivo Time-shift, store, play back, edit, … “Any time you skip a commercial, you’re actually stealing the programming.” – Jamie Kelleher CEO, Turner Broadcasting “Any time you skip a commercial, you’re actually stealing the programming.” – Jamie Kelleher CEO, Turner Broadcasting

12. 12 The Internet and the Web “Framing” In limbo “Deep Linking” In limbo Altering fonts, colors, size, … Waiting to surface Blocking pop-ups Waiting to surface (“Any time you skip a pop-up, you’re stealing the content.”) P2P On the front pages Compare with Tivo “Framing” In limbo “Deep Linking” In limbo Altering fonts, colors, size, … Waiting to surface Blocking pop-ups Waiting to surface (“Any time you skip a pop-up, you’re stealing the content.”) P2P On the front pages Compare with Tivo

13. 13 Technology and Copyright: Lessons and Observations It’s not just P2P Lots of other interesting problems (still) floating around Technology – especially, but not exclusively the Internet – is giving consumers unprecedented power over content Collision between “my computer/television/wiring” and “my content” Solutions will (continue to) be multi-dimensional and content/technology-specific Interpretation of existing laws Creation of new laws Voluntary agreements; new business models Not all intellectual property will be (can be; has been) treated the same It’s not just P2P Lots of other interesting problems (still) floating around Technology – especially, but not exclusively the Internet – is giving consumers unprecedented power over content Collision between “my computer/television/wiring” and “my content” Solutions will (continue to) be multi-dimensional and content/technology-specific Interpretation of existing laws Creation of new laws Voluntary agreements; new business models Not all intellectual property will be (can be; has been) treated the same

14. 14 1976 Law + P.C. + Networking = Conflict Scope Populist concept: original work tangible medium, but very controlling in the hands of commercial interests. Since nobody owns the Internet, i.e. its protocols, battle over control of it revolves around ownership and control of the material transmitted on it. Terms Copyright Term Extension Act of 1998 Eldred v. Ashcroft, 2003 “Perpetual copyright on the installment plan?” Scope Populist concept: original work tangible medium, but very controlling in the hands of commercial interests. Since nobody owns the Internet, i.e. its protocols, battle over control of it revolves around ownership and control of the material transmitted on it. Terms Copyright Term Extension Act of 1998 Eldred v. Ashcroft, 2003 “Perpetual copyright on the installment plan?”

15. 15 Add DMCA and Wow! Notice and Take Down Subpoena power: RIAA v. Verizon Right to read Right to privacy Due Process http://www.cdt.org/copyright/ Anti-Circumvention DeCSS 2000 Sklyarov case Felten “Unintended Consequences” http://www.eff.org/IP/DRM/DMCA/20031003_ unintended_cons.php Notice and Take Down Subpoena power: RIAA v. Verizon Right to read Right to privacy Due Process http://www.cdt.org/copyright/ Anti-Circumvention DeCSS 2000 Sklyarov case Felten “Unintended Consequences” http://www.eff.org/IP/DRM/DMCA/20031003_ unintended_cons.php

16. 16 Current Struggles of Copyright? Lessig on scope and term Populist: Broad protection for non-published limited (5 year) for published The Creative Commons http://creativecommons.org/ Samuelson (law) on anti-circumvention Papers: http://www.sims.berkeley.edu/~pam/papers.html Felten (research) on anti-circumvention Composite http://www.eff.org/IP/DMCA/Felten_v_RIAA/ Lessig on scope and term Populist: Broad protection for non-published limited (5 year) for published The Creative Commons http://creativecommons.org/ Samuelson (law) on anti-circumvention Papers: http://www.sims.berkeley.edu/~pam/papers.html Felten (research) on anti-circumvention Composite http://www.eff.org/IP/DMCA/Felten_v_RIAA/

17. 17 Copyright’s Top 5 Myths

18. 18 Copyright’s Top 5 Myths 5. Copyright infringement is the same as theft It’s both more and less 5. Copyright infringement is the same as theft It’s both more and less

19. 19 Copyright’s Top 5 Myths 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown

20. 20 Copyright’s Top 5 Myths 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1

21. 21 Copyright’s Top 5 Myths 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1 2. Without full control of their works, authors won’t publish See above 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1 2. Without full control of their works, authors won’t publish See above

22. 22 Copyright’s Top 5 Myths 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1 2. Without full control of their works, authors won’t publish See above 1. “You can’t compete with free” 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1 2. Without full control of their works, authors won’t publish See above 1. “You can’t compete with free”

23. 23 Copyright’s Top 5 Myths 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1 2. Without full control of their works, authors won’t publish See above 1. “You can’t compete with free” 2002 bottled water sales: US $7.8B; World $35B 5. Copyright infringement is the same as theft It’s both more and less 4. Technology must give way to copyright Just the reverse has happened, as we’ve shown 3. Creators of intellectual property have the absolute right to control its use Lots of exceptions, starting with Article 1 2. Without full control of their works, authors won’t publish See above 1. “You can’t compete with free” 2002 bottled water sales: US $7.8B; World $35B

24. 24 Future of Copyright Nothing widely-sweeping is going to change about the circumference of copyright law in the United States unless and until a critical mass of the general public begin to understand the relationship between copyright law and democracy. And the only way to understand that relationship is to know something of its history, particularly its meaning to the founding fathers and their vision of the United States as not only a place of vibrant, competitive creativity but of an informed, educated citizenry forever battling the hydra of tyranny.

25. 25 Discussion