1. COPYRIGHT WARS COME TO XML STANDARDS Pamela Samuelson, UC Berkeley XML 2002 Conference December 10, 2002

2. Dec. 10, 2002XML 20022 OVERVIEW Copyright has a history of balanced rules Digital technology has upset the old balance Reaction of copyright industries: we need more legal rights, more controls over uses Several “copyright wars” were set off by this Standard-setting to establish rules to govern “code as code” for DRM technologies is a new front of copyright wars; a way to set policy for the future –OASIS Rights Language TC as one example of this

3. Dec. 10, 2002XML 20023 COPYRIGHT CLAUSE US Constitution: Congress is empowered to enact legislation –To promote the progress of science (& useful arts) –By granting exclusive rights for limited times –To authors (and inventors) –In their (respective) writings (and discoveries) Economic rationale: give rights to induce creation Rights are means of achieving larger public good (public access to wide array of innovations)

4. Dec. 10, 2002XML 20024 EXPANSION OVER TIME 1790 Act: authors of maps charts & books had exclusive rights to print, reprint, & vend their works for 14 years Subject matter expanded: paintings, photographs, sound recordings, movies, software Broader exclusive rights: reproduction in copies; public performance/display/distribution Longer term: life + 70 years; 95 years from 1 st publication for corporate-authored works Longer & stronger isn’t inevitably good; constitutional purpose may be impeded by overly strong/long rights

5. Dec. 10, 2002XML 20025 MANY LIMITATIONS Fair uses OK: Sony Betamax case (private non- commercial copying presumed fair use); Galoob v. Nintendo (game enhancer program OK because it allowed fair uses) “First sale” rights: copyright owner is only entitled to control the 1 st sale of a copy to public Special rules for library and archival copies, classroom uses, disabled users, fixing software bugs, many others Copyright law hasn’t traditionally regulated private uses Print and analog technologies didn’t enable use controls

6. Dec. 10, 2002XML 20026 DIGITAL CRISIS Computer & networking technologies changed the ease and cost of copying and distribution of digital works Digital copies are “perfect,” not degraded as multiple generations of analog copies are Risk of widespread infringement if digital works available Unclear what new business models would succeed Users have taken things into their own hands (e.g., use of Napster as the content industry’s worst nightmare) Digital rights management (DRM) technologies provide unprecedented means of control over uses

7. Dec. 10, 2002XML 20027 COPYRIGHT “WARS” Debate over 1995 White Paper on NII & IP Debate about nature of fair use Peer-to-peer file-sharing litigation Hollings bill v. Lofgren/Boucher bills Eldred v. Ashcroft challenge to Copyright Term Extension Act UCITA licenses

8. Dec. 10, 2002XML 20028 1995 WHITE PAPER Every access to and use of copyrighted works in digital form requires making of temporary copies in RAM of computer (e.g., read, listen, view) Implicates copyright’s reproduction right Fair use and other limitations are no longer appropriate because digital technology enables new licensing models No more 1 st sale rights because sharing your copy of digital content requires copying (also, digital information typically “licensed” so no sale)

9. Dec. 10, 2002XML 20029 MAXIMALIST THEORY Clinton Administration tried to get international treaty to mandate these rules as international norms Under RAM theory, copyright gives rights-holders absolute rights over all access to and uses of digital information WP: OK to use DRM to override copyright privileges Clinton Administration pushed for DMCA anti- circumvention rules to protect DRM technology And that’s not all: Copyright owners want to control development of digital technology (Hollings bill) & rearchitect Internet to make it safe for DRM content

10. Dec. 10, 2002XML 200210 MINIMALIST THEORY RAM copy theory is neither proper interpretation of existing law nor good public policy Fair use, first sale, other exceptions are still viable and necessary to achieve constitutional purposes Users have (or should have) rights to circumvent technical measures to make fair uses Technologies with substantial noninfringing uses should be free from copyright owner controls Open architecture of the Internet should be preserved

11. Dec. 10, 2002XML 200211 FAIR USE DEBATE Courts have sometimes spoken of fair use as constitutionally mandated –Necessary to promote progress of science –Necessary for compatibility with 1 st Amend. –Once courts say X is fair use, people can do it Statutorily, fair use is an affirmative defense to copyright infringement –Publishers argue that it isn’t a “right,” so OK to override by license or DRM –No obligation to enable fair uses

12. Dec. 10, 2002XML 200212 P2P FILE-SHARING A&M Records/MGM: –User copying & distribution of copyrighted sound recordings via P2P network is infringement –Supplying P2P technology is contributory infringement Napster/Grokster: –Substantial non-infringing uses of these P2P file sharing technologies (including fair uses) –Grokster has different architecture from Napster, unable to monitor users

13. Dec. 10, 2002XML 200213 THE WAR AGAINST P2P Content industry: “piracy, piracy, piracy” Key Congressmen: DOJ should prosecute file sharers and developers of P2P systems Berman bill: give copyright owners immunity for vigilante attacks on file sharer’s computers ISPs should monitor users or disclose identity of file-sharers in response to subpoena More DRM deployments (copy-protected CDs) Hollings bill: mandate DRM (turn computers into secure content appliances)

14. Dec. 10, 2002XML 200214 HOLLINGS BILL (S. 2048) Consumer Broadband & Digital Television Promotion Act Makers of digital media devices, copyright owners, & consumer groups would have 12 mo. to reach agreement on standard security measures to be installed in devices FCC to issue rule to require installation in all devices If no agreement, FCC will choose security standard anyway & mandate it in digital media devices Illegal to make or provide digital media device w/o SSM Also illegal to remove/alter SSM Criminal as well as civil penalties (drawn from DMCA) Hope to induce IT industry to adopt “voluntary” standard

15. Dec. 10, 2002XML 200215 OPPONENTS’ VIEWS Would prevent many beneficial uses of IT Would add expense to IT systems Would undermine system performance Would retard innovation & investment in IT Would impede scientific research May make systems more vulnerable to hacking (one virus might take down all systems) Likely to mean no Linux-based enterprise systems (if DRM can’t be implemented royalty-free) The government & content industry shouldn’t dictate how the IT industry builds its products

16. Dec. 10, 2002XML 200216 “MINI-HOLLINGS” BILLS? Hollings bill has no immediate chance of passage –But it is what entertainment industry really wants Likely to be a series of “mini-Hollings” bills –Broadcast flag likely to be the first of many –2 “precedents”: AHRA for DAT; DMCA for VCRs –Death by 1000 cuts: once tech mandates for several devices, logical to mandate generally Will rearchitecture of the Internet be next so content cannot be transmitted unless copyright clearance assured?

17. Dec. 10, 2002XML 200217 “PUBLIC CHOICE” PROBLEM Copyright legislation most directly affects a small group of highly organized, well-financed firms Huge benefits to them if longer & stronger protection; generous campaign contributors 100 year history of deference to copyright industry in writing copyright legislation Costs to public are diffuse & invisible; collective action problem inhibits effective organization Likely to lead to imbalanced legislative actions such as CTEA, DMCA, Hollings bill (best laws $$$ can buy)

18. Dec. 10, 2002XML 200218 ELDRED v. ASHCROFT CTEA added 20 years to existing copyright terms Thwarted plans of Eldred to publish works from the 1920’s and 1930’s on the Internet Eldred: CTEA is pure “rent-seeking”; no benefit to public; impedes, rather than promotes, science; public domain is not a matter of legislative grace Ashcroft: industry witnesses told Congress older works would be preserved and distributed if extra term; partial harmonization with EU; Congress had rational basis for enacting CTEA, so OK

19. Dec. 10, 2002XML 200219 EFFORTS TO REBALANCE Digitalconsumer.org “bill of rights” Lofgren/Honda bill to reform DMCA and preserve fair use/first sale Boucher/Doolittle bill to regulate copy- protected CDs and reform the DMCA What Supreme Court does in Eldred may have significant spillover effects for other challenges to copyright rules (e.g., DMCA)

20. Dec. 10, 2002XML 200220 CONSUMER BILL OF RIGHTS Digitalconsumer.org has articulated “bill of rights” (go to their website & sign up) –Right to “time-shift” –Right to “space-shift” –Right to make backup/archival copies –Right to use on platform of your choice –Right to transform format –Right to use technology to accomplish these rights HJR 16 affirms these as “sense of Congress”

21. Dec. 10, 2002XML 200221 HR 5522 (Lofgren-Honda bill) Fair use applies to analog or digital transmissions Right to make backup copies, display copies Mass-market licenses can’t override user rights Allow first sale rights for digital copies Reform of DMCA: OK to circumvent to make fair use, tools necessary to enable this

22. Dec. 10, 2002XML 200222 HR 5544 (Boucher/Doolittle bill) Require adequate labeling of copy-protected CDs (warning: may not play on device of your choice or allow space-shifting onto your hard drive) Reforms to DMCA: –OK to circumvent if no infringement occurs –OK to make tool to enable fair and other significant non-infringing uses –OK to circumvent and make tools for scientific research (not just for encryption research)

23. Dec. 10, 2002XML 200223 UCITA LICENSES UCITA (Uniform Computer Information Transactions Act) enacted in MD & VA Very controversial, mainly on consumer protection grounds Also controversial as to copyright limitations: seems to presume that state law can override federal fair use and first sale rights Essentially allows licensors to write own IPRs Likely to be big push for adoptions this year

24. Dec. 10, 2002XML 200224 PUBLISHER AIMS FOR DRM Publishers of digital content want to control all access to and uses of their content (White Paper endorsed as law) DRM enables more fine-grained control than other technical measures (e.g., copy-protection) Need for DRM rights expression language to enable fine- grained controls DRM is better than legal rights because it’s self-enforcing DRM is also better because it’s not subject to fair use, first sale, backup copying, etc. Consumers don’t have “rights,” only expectations

25. Dec. 10, 2002XML 200225 OASIS RLTC Goal: define an industry standard for a digital rights language –that supports a wide variety of business models –that has an architecture that provides flexibility to address needs of diverse communities needing an RL Initial participants: Microsoft, Content Guard, IBM, HP, CommerceOne, Verisign

26. Dec. 10, 2002XML 200226 XrML Content Guard has proposed its patented XrML as standard; willing to license on RAND basis (although terms not disclosed) “r” stands for “rights,” but is XrML about expressing rights or permissions? Is the underlying assumption that publisher/licensors have rights, and users don’t? Even if “permissions” is more accurate, is it acceptable to continue to call it “rights” because others (e.g., publishers) do? (power of metaphors)

27. Dec. 10, 2002XML 200227 OTHER QUESTIONS Should XrML provide semantics to express user rights? Which user rights are expressible in machine-readable language? Can a RL, such as XrML, serve the interests of diverse communities if it doesn’t allow user rights to be expressed? Who represents the public interest in standard setting processes such as this? –Some nonprofits joined RLTC, including Society for Biblical Literature, Electronic Frontier Foundation, Samuelson Clinic

28. Dec. 10, 2002XML 200228 ONE LIMIT OF XrML First sale rights: copyright owner is entitled to control only the 1 st sale of a copy to the public (why bookstores & libraries can operate; why it’s OK to lend a book to others or resell it) Some argue no 1 st sale rights in digital works But surely 1 st sale rights can be implemented with DRM as long as RL allows this concept to be expressed; XrML did not allow this Brian LaMacchia agreed this was a limitation in XrML; ongoing discussion about how to express

29. Dec. 10, 2002XML 200229 WHAT ABOUT FAIR USE? Very broad concept, encompasses wide range of uses (time-shifting, parody, news, criticism) Not very predictable because fact-intensive, often takes litigation to figure out if use is fair Flexibility has been one of its virtues, but this makes fair use computationally difficult to implement (why technologists just want to ignore it) Users didn’t have to ask permission, just did it But perhaps some fair uses can be expressed in RL (e.g., backup copy, format-shifting)

30. Dec. 10, 2002XML 200230 PATENT ISSUES RF v. RAND –Some TC members insist that their requirements for a RL includes RF license terms –Other TC members insist that RF license is out of scope, cannot be stated as a requirement RAND terms: What exactly are they? When will terms be revealed? As of when are they nondiscriminatory? Is discrimination always bad? Potential conflicts between DRM patents of Content Guard/MS vs. Intertrust/Sony/Phillips

31. Dec. 10, 2002XML 200231 PRIVATE v. PUBLIC ORDER Licenses and DRM enable “private ordering” –Virtues may include flexibility, new business models enabled, better protection of digital content –But public order values, such as fair use and privacy, may be casualties of private ordering –Is a struggle to articulate user rights worthwhile if licensors won’t use the RL to express them? “Public choice” problems can also exist in standard-setting organizations But possible for standard-setting organizations to take public order values into account

32. Dec. 10, 2002XML 200232 CONCLUSION Next year, you may have a chance to vote on proposal to make XrML an OASIS standard Consider whether it’s balanced RL, accommodating user rights as well as licensor’s Market can provide check on private ordering, assuming competition exists –Hollings bill would partly eliminate competitive check Law (e.g., consumer protection rules) may be called upon to regulate DRM if public values are not accommodated in private ordering process