Copywrong - inequities of the Digital Millennium Copyright Act

Reason, July, 2001 by Mike Godwin

Why the Digital Millennium Copyright Act hurts the public interest

here's a war going on over the state of copyright law in this country, but it's a war whose battles are largely being fought covertly. On the occasions when the conflicts are made public, they have not been recognized for what they signify. What has gone mostly unseen and unremarked upon is the effort by industries who benefit from copyright law to shift the balance of the law forever in their favor, and away from the public interest that, according to Article I of the U.S. Constitution, is supposed to be the beneficiary of copyrights. (The Constitution expressly says that copyright and patent laws are designed "to promote the Progress of Science and useful Arts.")

In Digital Copyright, Wayne State University law professor Jessica Litman has set out to chronicle that war, and her book is as refreshing in its passion and polemical nature as most law-review articles on the subject are mind-numbingly tedious. Try to talk to any normal American about how this country's copyright law has gone off the rails, and you'll likely witness a new speed record for how quickly his eyes glaze over. That's why, when I want to communicate the horror of modern copyright law, I use the example of horror writer Stephen King, who (at least in theory) is a potential victim of the current state of the law.

Last year, King decided to experiment with online distribution of his fiction. His first experiment involved a novella called Riding the Bullet, which Simon & Schuster distributed in formats that could be read only on Intel-based PCs running the Windows operating system. This troubled King a bit because he (like me) is a devoted Macintosh user. King told reporters at the time that as a dedicated and long-term Mac user he was "surprised and a little unhappy at how hard it is for Mac users to access the story." Even in its Wintel versions, there were limits on users' access. Someone reading it through Glassbooks' or Netlibrary's proprietary e-book technology--as required by the official downloadable versions-was prevented from copying any of the text or from printing it out. Simon & Schuster explained that it disabled the reader software's printing and copying functions to prevent piracy.

This odd state of affairs-a book offered in electronic format that cannot be easily read on the author's own computer--gives rise, when looked at in the context of current copyright law, to an interesting thought experiment. Suppose a Stephen King fan purchased a copy of the Wintel-based downloadable story and asked a friend to reverse-engineer a way of reading the story on his Macintosh computer. That bit of inventiveness might create a liability for the friend under the Digital Millennium Copyright Act. Or suppose that a King fan offered King himself a software tool that might enable the author to sidestep the e-book's encryption and extract the story for easy readability on the author's own PowerBook. That too is a violation of the DMCA, according to the reasoning of recent court decisions construing it.

One of Litman's purposes in Digital Copyrightis to communicate precisely how the DMCA, with its draconian provisions and apparently unanticipated consequences, came to pass. Another purpose is to spell out the process by which copyright law is crafted in this country. (It turns out that Congress, by its own choice, tends to be only peripherally involved in drafting the law.) And still another is to explain the hugely deleterious public consequences of the shift in copyright law-a shift of which the DMCA is only one part.

The guts of that shift have to do, Litman explains, with a longstanding disagreement among copyright theorists as to what the underlying rights of copyright are and ought to be. According to one view, copyright interests are the product of a kind of bargain between the government and creators-a bargain that Congress, pursuant to the "copyright clause" of Article I of the U.S. Constitution, has the right to shape. Under that bargain, Litman writes, "Authors are given enough control to enable them to exploit their creations, while not so much that consumers and later authors are unable to benefit from the protected works."

ut exactly what rights remain in the creators' control-or, as is most often the case, the publishers' control-is a matter of some controversy. The constitutional language itself is no unambiguous guide-it simply grants Congress 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." But what does "exclusive Right" mean? And what does "limited Times" mean? Litman spells out the controversy: "Some people insist that copyright owners are entitled to just enough control

to provide an economic incentive for their creation, since the broad purpose of copyright is to promote knowledge by encouraging authors to create and disseminate their works. Others argue that the only uses of a work that are properly excluded from the copyright owner's control are the ones that have no significant economic value."