Transcript MP3, DIGITAL MUSIC, & THE LAW

A NEW POLITICS OF
INTELLECTUAL PROPERTY
Pamela Samuelson
University of California at Berkeley
MP3 2000 Summit, June 21, 2000
June 21, 2000
MP3 2000 Summit
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OVERVIEW
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The “old” politics of intellectual property
The legacy of that politics
The current politics of intellectual property
Illustrating the need for a new politics of
intellectual property through 4 examples
• What such a politics might do and why you
should care
June 21, 2000
MP3 2000 Summit
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THE “OLD” POLITICS OF IP
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Copyright lawmaking has mainly focused on
resolving intra-industry conflicts:
Authors v. commissioners of a work (§201(b))
Authors/publishers v. sound recorders (§115)
Broadcast TV v. cable TV (§111)
Broadcast TV/cable TV v. satellite (§119)
Publishers v. libraries/archives (§108)
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MORE ON “OLD” POLITICS
• Intra-industry conflicts were resolved by
Congress saying “go behind closed doors,
work out a compromise, and we’ll enact it”
• One consequence of this is that copyright
law has become complex & unreadable
• This didn’t matter much as long as affected
industries understood what it meant
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MP3 2000 Summit
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LEGACY OF “OLD” POLITICS
• “Old” politics invisible to ordinary folks because
regulated public & commercial activities, not
private noncommercial ones; individual users
typically unaffected by decisions
• Industry groups built good relations with Congress
and with Copyright Office
• No one else was really in the game (except
libraries on occasion & they don’t make campaign
contributions) so the industry got used to being the
only (significant) lobbying group on copyright
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CURRENT POLITICS OF IP
• As IP has become more important to U.S.
economy, Congress has been increasingly
receptive to copyright industry concerns
• “Piracy” is an easy plea to Congress
• More and more things characterized as
“piracy” (e.g., any unauthorized copy)
• High protectionist agenda easier to sell
when lots of “piracy” said to be going on
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MP3 2000 Summit
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POLITICS OF WHITE PAPER
• Clinton Administration beholden to copyright
industries because of campaign support
• Stronger copyright rules = what the industry
wanted in return
• Chief IP official was former copyright industry
lobbyist with history of high protectionist
positions
• Internet is the wild, wild west; new rules needed to
tame it and persuade copyright industries it would
be safe to set up business there
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COPYRIGHT GRAB IN WHITE
PAPER ON NII & IP
• Copyright owners have rights to control all
temporary (RAM) + permanent copies in digital
networked environment (e.g., every access, use)
• No more fair use/first sale in digital environment
• Online service providers should be strictly liable
for user infringement
• Need for new laws to protect rights management
information & outlaw circumvention technologies
June 21, 2000
MP3 2000 Summit
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POLITICS OF DMCA
• Telcos/ISPs lobbied hard for “safe harbors” for
transmission, caching, storing, and searching
• Computer industries (sans Microsoft) lobbied hard
for interoperability/testing exceptions to anticircumvention rules
• Universities/other nonprofits got few concessions
(but benefited from safe harbors)
• Copyright industries largely got what they wanted
legislatively through intensive lobbying
June 21, 2000
MP3 2000 Summit
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WHY IS A NEW POLITICS
NEEDED?
• High protectionists have gotten far more than they
need (e.g., 1201), and they will seek more
• Copyright law now affects everybody, so “old”
and current politics no longer acceptable
• Industry capture of the legislative and executive
branches is likely to produce imbalanced policy
• Copyright works BECAUSE of balance (fair use)
• Only way to restore balance is by new politics
• That means the rest of us need to grasp what’s at
stake and act to protect our interests in IP rules
June 21, 2000
MP3 2000 Summit
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BOYLE’S ANALOGY
• In the 1950’s, no concept of the “environment”
• Logging and mining companies thought that they
had a lock on legislative issues affecting them
• Took time for hunters, birdwatchers to recognize
common interest in preservation of nature
• They invented the concept of the environment, &
then organized & lobbied to preserve it
• Able to explain that acts of loggers and miners had
negative externalities for environment
• An “information ecology” needs to be invented
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WHO MIGHT BE ALLIED?
• New digital media companies/Internet portal
companies
• Authors/artists (they need public domain/fair use)
• Telecommunications companies
• Equipment manufacturers/software “players”
• Computing professionals (e.g., ACM, IEEE)
• Universities/libraries/other nonprofits
• Consumer groups
• Economists
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MP3 2000 Summit
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4 ISSUES A NEW POLITICS
MIGHT FOCUS ON
1- Imagine an RIAA proposal to legislate SDMI as
trusted system
2- Imagine copyright industry proposal to prosecute
individual infringers under state law
3- Imagine proposal to prevent major labels from
using privacy-invading, price discriminationenhancing digital rights management systems
4- Imagine proposal for a Commission on the Status
of the Individual Author/Artist
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MP3 2000 Summit
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PRECENDENTS: MANDATED
TRUSTED SYSTEMS
• #1 Precursor: Audio Home Recording Act
– Mandated SCMS chip in consumer digital
audio tape systems
– Legislative deal: consumers can make personal
use copies; “tax” on tapes and machines to pay
royalties to copyright owners
• #2 Precursor: obscure DMCA requirement
that VCRs have anti-copying system built in
June 21, 2000
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PRIVATE LEGISLATIVE
INITIATIVES
• DVD consortium as to movies
– can’t make DVD players without patent license
– can’t get this license unless agree to install
encrypted access control technology
• SDMI as to sound recordings
– goal is set standards for technical protections to
be built into digital music players
– once set, would RIAA take to Congress?
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WHY WORRY ABOUT
PRIVATE LEGISLATION?
• Usurping role of legislature
• Loss of (relatively) open forum in which all
affected stakeholders have an opportunity to
persuade rulemakers of their position
• Typically the result of cartel behavior
• Reaches results that would not prevail in the
market but for private legislative act
• Industry capture of legislature may enable private
legislation to become public law
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PROPOSED MANDATE
OF SDMI
• Why? Major labels want the law to reinforce their
preferred business model
• Not what users want (users want MP3 players)
• Not what equipment manufacturers want
• If don’t have cartel or law, technical protections
might be competed away (as happened with copyprotected software some years ago)
• Unless a new politics effectively represents proMP3 position, RIAA could win in Congress
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MP3 2000 Summit
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NEW STATE PROSECUTIONS
• Right now, federal courts have exclusive
jurisdiction in copyright cases
• Criminal copyright provisions require
– willful infringement for commercial purposes
– or willful infringement of $1000 of works
• Johnny Q. Public who makes a few illegal copies
is not at risk because US Attorney can’t be
bothered with minor cases, even if infringement is
detected (which it’s generally not)
• Congressional resolution unlikely to change this
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MP3 2000 Summit
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WHY STATE PROSECUTION?
• Major copyright lobbyists might argue that
– piracy is rampant among the public,
– piracy is insufficiently deterred by existing criminal
enforcement system,
– state court enforcement would lead to more respect for
IP, reduce piracy; teach kids a lesson (like prosecution
for shoplifting)
• Alternatively, RIAA might want to set up its own
private enforcement system and seek to get
legislative endorsement of this
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WHY QUESTION STATE
ENFORCEMENT?
• Complicated federalism issues
• Constitutional grant to Congress, in part, to avoid
non-uniform decisions in states
• Maybe this isn’t desirable social policy (e.g., the
line between fair use and infringement often
unclear)
• Are we going to put all infringers in jail?
• Are we willing to turn the U.S. into a copyright
police state?
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NEW POLITICS MIGHT SEEK
PRIVACY PROTECTION
• Technically protected works can monitor what you
read or view & how long (e.g., DivX system)
• Useful to make profiles for marketing purposes (if
you liked X, you may like Y)
• Also useful for price discrimination
• Revenues from selling user profiles to other
publishers
• Should individuals have a right to read/listen
anonymously or to hack TPS to preserve privacy?
• Should Congress pass law to protect user privacy?
June 21, 2000
MP3 2000 Summit
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COMMISSION ON ARTISTS
• Artists/authors in danger of being roadkill on
information superhighway
• Users want all content for no cost
• Publishers/labels want all rights, no
responsibilities to share
• Media concentration limits artist choice
• Digital Dilemma report recommended a
Commission on the Status of Artist
• Could propose measures to help artists
June 21, 2000
MP3 2000 Summit
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CONCLUDING THOUGHTS
• Copyright is a critically important information
policy
• Copyright policy has been balanced until recently
• Copyright is not just about sustaining a market for
commercial products
• Copyright is also about critical commentary, free
speech and free press, democratic discourse,
knowledge creation, and innovation which often
require some reuse of others’ works—which is
why limits on copyright are so important
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CONCLUDING THOUGHTS
• Politics of intellectual property now are very
biased in one direction and copyright industries
are the sole beneficiaries of lopsided copyright
• MP3 battle is an important struggle in the war
over what the new status quo for digital
information will be
• Let’s work together to form a politics of IP for an
information society we’d actually want to live in
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MP3 2000 Summit
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