[DMCA-Activists] Zittrain: Call Off the Copyright War

[Seth Johnson]

(Link from Free Online Scholarship Blog)

> http://www.boston.com/dailyglobe2/328/oped/Calling_off_the_copyright_war+.shtml

THINKING BIG

Calling off the copyright war

In battle of property vs. free speech, no one wins

By Jonathan Zittrain, 11/24/2002

I grew up watching the Pittsburgh Steelers play football,
which means I also watched Steelers fans swinging bright
yellow bath towels over their heads to cheer the team on. A
Pittsburgh sportscaster named Myron Cope came up with the
idea: He called it the Terrible Towel. 

A plain yellow towel cost $4. Eight dollars bought you a
yellow towel with ''Terrible Towel'' stenciled on it. If an
entrepreneur sought to buy plain yellow towels, write
''Terrible Towel'' on them, and sell them in front of the
stadium at a bargain price of $6, he'd soon get a credible
cease and desist letter from my father, who represents both
Cope and the local school for exceptional children to whom
Cope has assigned the towel's profits, a practice that
continues today.

Why is this? Myron Cope controls the right to produce and
sell yellow towels that say ''Terrible'' because he holds a
trademark. Without trademark protection, someone else's
knock-off Terrible Towel might be confused with Cope's, and
people could think they were getting Terrible Towel quality
when in fact the pretender might be inferior. 

Exactly what this means when a Terrible Towel's quality
merely depends on it being yellow and labeled Terrible is
not entirely clear - no one actually dries off with these
things - but even nonlawyers can see some fairness in the
claim that what Myron Cope invents, Myron Cope should be
able to profit from. If he couldn't turn his intellectual
spark into bankable property, Cope might have simply stuck
to sportscasting, and Steelers fans would be stuck waving
large foam ''we're #1'' index fingers like everyone else -
and, of course, perhaps those wouldn't have been invented
either.

Nobody writes for free 

The logic of providing incentives for creative work through
markets is intuitive and longstanding. As Samuel Johnson put
it: ''No [one] but a blockhead ever wrote, except for
money.'' The American systems of trademark, patent, and
copyright establish the legal fictions that turn ideas into
property, so that the mercenary-minded among us will start
churning out ideas - the more popular, the more profitable.

The systems demarcating what it means to ''own''
intellectual fruits consist of hundreds of pages of
intricate yet often vague rules, exceptions, and exceptions
to exceptions. The rules used to matter only to publishers,
writers, and others involved in the industries of
professional creation. The political battles fought over the
boundaries were ignored by the public, lumped with other
industry-specific money conflicts like those over obscure
corporate tax breaks, automobile fleet emissions limits, or
mohair subsidies.

For example, a few years ago restaurateurs went head-to-head
with the American Society of Composers, Authors, and
Publishers over whether the latter could collect money from
the former when the radio was played for customers while
they ate. The result was the Fairness in Music Licensing Act
of 1998, which says that any bar or restaurant of not more
than 3,750 square feet, not including the parking lot so
long as the parking lot is used exclusively for parking
purposes, may use no more than six speakers, four in any one
room, to play the radio without owing anyone money. Other
details establish how large a TV set may be in a bar, or the
channel to which it may be tuned - ABC is OK, HBO is not.

Suing the Girl Scouts 

At the time, copyright holders saw this law as a stinging
defeat because it eliminated some aspects of a monopoly
whose logic knows few limits. Indeed, once one embraces
turning ideas into saleable items, there is no easy end
point. One can claim that a songwriter should be paid when
her song is broadcast over the radio, and again when the
radio is played in a restaurant - and again when the song is
sung by a listener to a group of friends.

It was this reasoning that inspired ASCAP to send thousands
of letters to summer camps across the country, demanding
hundreds of dollars in annual royalties from, among others,
Girl Scouts, presumably for songs sung around the campfire.
An ASCAP official explained, ''They buy twine and glue for
their crafts... they can pay for the music, too.'' He was
right as a legal matter - indeed, it is against the law to
sing ''Happy Birthday'' in public without paying a royalty -
and disastrously wrong as a practical one. 

The restaurant owners pounced on the overreaching, and with
the help of newspaper reports of Girl Scouts learning the
Macarena in stony silence, they won passage of the
music-in-restaurants law. This, of course, did nothing to
change the status of money owed for campfire songs, for
which a chastened ASCAP now charges the Girl Scouts a
symbolic $1 per year. They wisely receded on attempting to
collect a full profit, while making it clear that the profit
remains legally theirs to collect.

ASCAP's foray represents an early clash between the law of
intellectual property as understood among sophisticated
corporate intermediaries and the reality of intellectual
property as experienced by the public. That clash is now in
full swing thanks to fast networks and cheap computers: The
public has found ways to freely copy intellectual property
on a collectively massive scale, and if it continues
publishers see a mortal threat to their businesses.

Profits versus public access 

Publishers have fought back through tougher intellectual
property laws, including attempts to deputize network
providers as content police. They further propose a sweeping
long-term strategy of altering the very way that computers
and networks function, so that the hardware will simply
refuse to make a copy of something marked ''leave me
alone.''

Now that the public's tastes and the publishers' profits
appear in direct conflict, the publishers also have joined a
cultural war, trying to ensure that the prevailing model for
the new Internet territory is grounded in the complex legal
rules previously reserved for corporations, rather than the
informal sense of sharing that has prevailed for
individuals. The key is to extend the property label for
intangible things like songs and plays as far as possible,
reinforcing the idea that any unauthorized use is stealing. 

That's an often-overlooked reason why passing laws to extend
the duration of copyrights is so important to publishers. If
the term of copyright were closer to the 14 to 28 years the
framers of the Constitution originally intended, people
would become all too used to the idea that the restrictions
on using ideas were truly temporary, there only long enough
to convince non-blockheads to write in the first instance.

Understanding how to defuse the war means respecting the
fundamentals that are driving each side. Two now-opposing
principles are embraced by our history and culture. One is
crystallized by Calvin Coolidge: ''The business of America
is business.'' The other is captured by Thomas Jefferson:
''He who receives an idea from me, receives instruction
himself without lessening mine; as he who lights his taper
at mine, receives light without darkening me.''

Now that the Internet has blended the previously separate
zones of ideas as property and ideas as free, it's time to
engage in the much-overdue labor of integrating the
legalistic rules with the practical if inconsistent
exceptions to intellectual property. The goal should be
something that fits both profit models and common sense,
recognizing knowledge as something both of valid commercial
value and something that people in a free society should be
able to share in many instances without getting permission
or owing money.

Happy Birthday blues 

If publishers can realize that ideas aren't merely
commodities like rolled steel or bushels of grain - or
yellow towels - the public will ultimately be willing to
embrace reasonable boundaries on profit-killing behavior.
Few would sneak into a movie if the turnstile were
momentarily unstaffed, but almost everyone except
entertainment industry lawyers finds it laughable that CBS
would sue Fox because its copycat television show, Boot
Camp, is said to infringe Survivor's copyright.

Most important is not to lose the new opportunities raised
by the Internet, in which individuals can publish - usually
for fun rather than profit. For example, you can read up on
Myron's story of the Terrible Towel at www.geocities.com/
TheTropics/Shores/2713/towel.html, and you can find lots of
programs online that will compel your computer to play
''Happy Birthday'' for you. Both are likely technically
illegal - and yet the world is a better place for their
existence.

Indeed, you can see quotations from Samuel Johnson at
www.samueljohnson.com/action.html. He died in 1784, and thus
even the latest copyright term extensions have failed to
keep his work locked up. Similar selections of quotations
from more recent, and thus still copyrighted, authors and
personalities would be possible but for a legalistic
''permissions thicket'' through which copyright holders must
be sought out simply to allow the quoting of a sentence or
two. Bringing the law into line with broad-based social
expectations will make remaining restrictions worthy of
respect and adherence.

It is precisely at this moment of uncertainty - when
publishers worry that their entire storehouses of text,
music, and video will be plundered, and individuals worry
that attempting to copy and paste a favorite song snippet
can result in a lawsuit or blocked Internet access - that
compromise ought to be found, and seemingly opposing
imperatives can turn out to be mutually reinforcing. 

Time for compromise 

In the early '80s the movie industry fought the very
existence of the VCR. (''The VCR is to the movie industry
what the Boston Strangler was to a woman alone,'' said Jack
Valenti, head of the Motion Picture Association of America.)
In 1984 the Supreme Court, by one vote, found VCRs not to be
illegal tools of copyright infringement, and even Valenti
now agrees that it has been a boon to profits through
rentals - even though consumers can tape shows, watch them
again and again, and even swap them with friends.

Let the Byzantine rules of copyright be curiosities, like
the Terrible Towel - rather than an imposition of
impenetrable and arbitrary do's and don'ts that increasingly
shackle and alienate an otherwise sympathetic public. As the
publishers gird for a battle in which they are at risk of
overreaching, the public must pay attention - and make it
clear, without begrudging rightful profits to artists and
publishers, that it's a bad idea to tighten control over
ideas and their expressions.

Freedom of trade must not trump freedom of mind.

Jonathan Zittrain is an assistant professor of law at
Harvard Law School, and a director of its Berkman Center for
Internet and Society.