None of this is new. People have always made up new rules for favorite games. People have always told new stories with their favorite characters, including playing Star Trek in the backyard. People have always tinkered with their physical stuff. But tech often takes small latent problems and makes them big and real in the law.
Relevance of personal stories: tech has created opportunities for deep and profound relationships and experiences.
Jessica Litman’s Digital Copyright (link to PDF) demonstrates the stakeholder politics of copyright law. Look at DMCA to see how deals were cut. Despite small involvement of NGOs, vast numbers at the table and the power was on behalf of content industry lobbies, and that’s the law we have today. In 1998, copyright didn’t matter to ordinary people nearly as much, but now, as Clay Shirky says, here comes everybody. We can all use and manipulate these technologies. The law hasn’t changed; thickets of contracts and business models built around old versions of the §106 rights. Law is built on the idea that copying is hard, distribution is hard, and creating derivative works is hard; none of that is true any more and never will be again. These are features, not bugs, in our technologies.
Licensing as a threat: you could formerly take the pieces of Monopoly and make up your own game; now licensing tries to take that freedom away. Copyright owners think they’re being magnanimous in allowing uses that before would have not gone challenged but are now visible.
Anticircumvention: another addition to the arsenal; everything is banned unless it is allowed in a teeny exception, but none of the statutory exceptions have been useful to anyone. And 1201 means that even if you’re making fair use, your acts can be lawful if you needed to circumvent to make that fair use. Triennial rulemaking: another exemption that allows teeny holes that have to be renewed every 3 years, but not available for tools. Among other things: Sony released a PS that could do a lot of things, then changed its mind and decided to lock it down; 1201 can be used against those who try to keep its functionality. 15 years of unintended consequences.
512: good for intermediaries, not as good for individuals given the ability to take down speech immediately, without due process—a prior restraint on speech. For national security, you have to go to court; for copyright, you send a notice to a private party and it goes down. Content industry isn’t satisfied w/that—wants intermediaries to implement censorship/6 strikes.
Tech is still winning. There’s more innovation now than ever before; more music being made and shared than ever before. Believes same will be true for video etc. People are making their way through the thicket of law—or ignoring it—and continuing to be creative.
EFF: digital civil liberties group. Mission: make sure constitutional rights stay intact when you go online; protect fair use and other rights.
Will we let contract rewrite copyright law from what Congress passed (as bad as that was)? SOPA/PIPA aren’t going away. We need to create space for open wireless (no need for password)—better than smartphones, connected everywhere. This is within our grasp; the problems are contractual and legal, not technical.
Q: you sound optimistic; isn’t the past a very pessimistic story? Lessig gave up until Congress is reformed. And now we hear arguments that we have to change our law to satisfy international requirements. Likes fighting the good fight, but what’s the reason for optimism? What’s the tactic that works?
A: Congress’s brokenness affects all of us, including in internet regulation. Optimism: SOPA/PIPA—we’d been told this was a done deal, back when it was called COICA. We were able to rally enough support to turn things around. Little victories before, but that was the most high profile, resulting in a sense in DC that they ought to listen a little more to us. Also, if you look around, we may not be winning the law, but we’re winning the tech. People are making fanvids, modding their games, using their 3D printers. Wants to fight for the legality of creativity, but that’s been unleashed. So what’s winning? If winning is more music now than when Napster was introduced, we’re winning. TPMs on CDs have been dropped. We’re a small player, but people are getting access. My job is to make that better and safer.
Q: does EFF have a position on counterfeiting as a $600 billion industry?
A: doesn’t have a position on the numbers. We have expertise on digital technologies, not fake purses offline. Traditional counterfeiting is as outside our scope as physical trespass is, though we care about “digital trespass” claims.
A: TM’s been on our radar as something we need to start paying attention to; we’re now involved in a couple of cancellations at the PTO. TM is better and worse than copyright. Noncommercial = clearer for TM. But there isn’t a safe harbor for intermediaries, so with gamers and Urban Homesteader cases, Reddit and Facebook took pages down.
Q: why is “more stuff” winning?
A: in copyright, the Constitution says we have a statutory monopoly to incentivize creation. If government’s going to get involved and create monopolies, we shouldn’t discriminate. (I always invoke Sturgeon’s Law: 90% of everything is crap, and the corollary is that you don’t get the good stuff without the bad because it’s impossible to pick winners in advance through broad legal rights. We remember Shakespeare, but he came out of a whole culture of playwrights who are mostly, and likely justly, forgotten.)
Q: SOPA 2?
A: Not clear what’s coming. Register of Copyrights suggested that we need a new copyright law. There is a lot of concern on the part of some people that she’s planted the seeds of something that would be SOPA v.2. The key is not to allow censorship of the internet based on IP claims. If you’re accused of harassment by phone, the phone company isn’t empowered to deny you phone service. The role of the tech creator is not to be the police.
Q: Copyright small claims court?
A: Not sure. Worries about claims of infringement—enforcement cost is high, and that governs copyright owner overreach; makes sure they go after things that are really hurting them (or sometimes that are annoying them). We don’t have moral rights in the US. A small claims court could end up overenforcing copyright. In any event, a precondition would have to be to get rid of statutory damages, requiring proof of damage, and also to get rid of injunctive relief. Might be willing to make that trade.