Thursday, September 17, 2015

AU, Copyright Advocacy and Fair Use Education 1995-2015

This event celebrates significant anniversaries of two initiatives that were launched at AUWCL - the 20th anniversary of the founding of the Digital Future Coalition, the first broad-based civil society coalition that formed to address copyright policy issues; and the 10th anniversary of the best practices in fair use, through which a series of creative communities have transformed their approach to this vital copyright doctrine.  These two initiatives represent very different models of engagement in the process of developing balanced copyright laws that provide for significant levels of access to information. 
Introduction – Prof. Peter Jaszi – American University Washington College of Law
Michael Carroll: Not just interested in keeping critical distance as academics, but working on having ideas put into practice.  Jaszi: it’s amazing what you can accomplish when you don’t care about who gets the credit; Jaszi demonstrates this.
Jaszi: 20 years of work; praise and self-criticism.  Take IP public interest advocacy not just as practices to be described but as objects of inquiry—how can we generalize about their effects and values?
Accomplishments: Access to medicine; Creative Commons US’s home is in the program; internationalization.  Hybridizing being serious students of law and activists.  20 years ago there were few if any organizations that were regularly and systematically giving voice to this set of concerns.  Today there are more, and more threats; richer and more diverse advocacy environment.
Summer 1994: Green Paper on the internet.  Not a good document from his perspective.  Precursor to the White Paper, issued fall 1995, Department of Commerce task force.  Goal: making internet safe for commercial content, because until then content providers will refuse to be forces in the development of this new medium.  “Put cars on the information superhighway.”  Result: suggestions for new prohibitions against circumvention of technological protection measures; changes to make ISPs more fully responsible for behavior of users of their services; attempt at reframing issues by characterizing fair use as a “tax” on information owners.  White Paper took very seriously the notion that the best way to bring peace to this unruly environment was to start with teaching young children about the values of IP.  Wonderful passage about how even in first and second grade, children can be helped to understand that IP is no different from a ball or a pencil.  (Of course, in the early grades, you’re supposed to share those with people who need or want them, so that didn’t even work on its own merits.)
Result: Digital Future Coalition.
Panel: The Digital Future Coalition
Seth D. Greenstein – Constantine Cannon: Rule derived from history: Any new technology relating to copyrighted works will be opposed by copyright owners. Eventually this will lead to some legislative action addressing the perceived problems.  Almost as soon as Congress adopts this law, it will be obsolete and inapplicable to the next technology.  1975: Kastenmeier says that the law isn’t intended to deal with taping off the radio.  Then Sony introduces the Betamax.  Movie companies wanted consumers to watch in theaters/on broadcast TV, had no interest in having consumers own their own copies.  Ultimate result: robust and profitable sales and rental market, despite studios’ opposition.  CD transition; digital tape recording formats.  DAT law/AHRA: rough justice in royalties to pay for home taping. Also had a crude bilateral TPM, the serial copy management system.  When you made an audiotape, flags indicated whether it was a copy or original; if copy and copyright asserted, could not make copy of copy. Could make unlimited first-generation copies from original. Required cooperation: DAT had to respond to codes on CDs.  Not acceptable to computer industry, so there are loopholes/exemptions for computer industry; they argued persuasively as a tech matter it was impossible for them to track and implement SCMS in a computer environment with so many different bits/kinds of content.  Undaunted, Home Recording Rights Coalition was interested in digital video, wanted to avoid next Betamax case; Sony was cognizant of the fact that only one vote of SCt saved them from bankruptcy given statutory damages.  Negotiated Video Home Recording Act, following a similar pattern.  Spent years in negotiation with studios; but computer industry would not do it.  AHRA problems were several orders of magnitude worse, computer industry said. But something other than bilateral system, where content protected itself by scrambling/encryption, might be acceptable.
Thus, went to Congress and got it to ask the industry to talk among themselves.  Working group started to work on the details of CSS, the Content Scrambling System.  Legislative support for it needed b/c every tech can be circumvented.  (Needed?)  That’s how we got eventually to the Digital Future Coalition b/c every jurisdiction has a library/librarian that can raise consciousness of problems at the grassroots.
Prue Adler – Association of Research Libraries: Libraries as canaries in coal mines.  DFC had libraries, education associations, tech innovators, computer companies, more.  A consumer-facing organization, the first of its kind to come together around major copyright reform/international copyright.  Ultimately led to a more moderate DMCA than originally proposed.  Attempt to give protection to facts: USPTO claimed that international developments justified database legislation.  Early on, it was lonely for the ARL/National Academies/Info Tech Ass’n opposing database legislation.  Once DMCA was signed into law, focus shifted to database legislation and many DFC members joined the coalition against it, which was very helpful.  Strong sense of how to work together.  Coalition included Bloomberg, Eagle Forum, startups; proponents included Nat’l Ass’n Realtors, NYSE, Reed Elsevier.  We’ve been proven right many times over: database industry in US is thriving versus its status in Europe with its database legislation.  House-passed legislation included DMCA, database legislation, and boat hull protections.  Urban legend: Hatch told member that he could only have one.
20 years of pushing back at high protectionists on any front; making new coalitions; meeting smart partners.
Ed Black – Computer and Communications Industry Association
Revolving door from government to content copyright-maximalist industries.  For our businesses, this isn’t always our #1 priority, but it’s theirs, so we’re always running uphill against entrenched players.  Interoperability, fair use, secondary liability, and balance—issues then, issues now.  Protect our open, innovative economy and its comparative advantage versus other countries.  European office: very active right now. 
Jonathan Band – policybandwidth: Nothing new under the sun.  Different coloration, but same issues.  What is a little different was the creation of private/public partnership—alliance between industry and user groups.  Worked on legislation and amicus briefs, where courts tend to give a little more weight to public interest groups; working together accomplishes a lot but in Congress it’s the commercial interests that have the influence in terms of what’s acheivable with our coalition—reflected in the DMCA.  1201 could have been worse: no rulemaking proceeding at all.  But the exceptions helpful to commercial interests are better than the exceptions for nonprofits—the utility is directly proportional to lobbying which is directly proportional to commercial interests.
It’s no accident that the most innovative companies are in the US and not Europe: part fair use, part regulatory environment, part culture, part absence of database legislation.  Could have been much worse!  Search engine could not function if it could not gather facts.  Remember that database legislation passed the House; it was touch and go.
Prof. Brandon Butler – American University Washington College of Law: works with students to make this awful DMCA 1201 machinery work in his IP clinic.  (though it could have been worse!).  DMCA process helps them encounter really important concepts that otherwise they might not.  Something about how laws are made and interpreted—reading the statute alone doesn’t make it obvious what you need to show to get an exemption, or how hard it will be. Have to look at history; past iterations of rulemaking, successful and unsuccessful arguments.  Burdens are important—teaches them how the burden of going through the whole rulemaking affects different people differently. 
There are social justice aspects of an IP clinic, and the 1201 proceeding is a way to show how the burdens matter to who gets to show up and who wins.  Heavy burden of proving clients’ hardship; have to do a lot of investigation, and can’t give up just b/c the first try doesn’t work.  Learn about how to interact w/clients.  You’re doing this 8 hours a week (oh, if only!), but this may not be the client’s top priority, so you have to work with them.  Learn about coalitions—mostly clinics, a few nonprofits like PK, EFF, OTW—sharing information and discussing strategies.  We couldn’t get a video expert to talk about technical details, but OTW’s expert was able to help w/her genius.  Above all students learn that there is a public interest in IP separate from the interests of the rights holder.  Notion of balance, not just owners and thieves, hits them really hard when they’re working with teachers etc.
Black: At one point, only anticircumvention was not resolved in the DMCA.  We needed reverse engineering and cybersecurity exceptions at least.  Senators Hatch & Leahy wanted to get the bill passed; we walked in w/20-30 representatives from every major constituency involved.  Asked us: what do we have to do to get this done?  Everyone pointed at us and said: you guys have to give up, you’re holding up the train. We held out and negotiated for exceptions; this was significant in showing how many powerful interests had been arrayed to get this bill in its form as we had it.  Private sector commercial interests against library.  Then look at SOPA/PIPA: 8 million emails; 4 million calls to Congress. The difference was internet users who understood that they had something at stake; would have loved to have them 20 years ago. They’re not automatic/easily mobilized but they are an important factor in setting our goals.  We have an ally out there and we have to speak to them, making sure our arguments resonate with their concerns, and we have an opportunity at least to avoid deterioration and maybe to make things better.
Jaszi: Lenz case. Although it wouldn’t have happened in the way it happened without the telcos, who were primary movers on ISP liability carveouts/safe harbors, the DFC also made a meaningful contribution to §512.  Nice to see the design vindicated.  But something else: the EFF took the case and stuck with it as long as it takes/will take.  In the early days of DFC, big job was to call possible organizations as recruits & convince them that they really had a stake and ought to join.  EFF was that time almost exclusively focused on privacy and some other internet regulatory issues; hadn’t taken IP on board.
Matt Schruers, Computer & Communication Industry Association: Messes as lawyer employment guarantees. But in civil justice campaigns, early victories may be seeds for later failures—seeds of complacency. Maybe winning earlier would have been bad for us; losing allowed a rally and long-term activism.  (Eh, in the long run we’re all dead.  I’m a bird in the hand type of person.)
Greenstein: MPAA had an easy time explaining what they wanted from the DMCA: stop piracy in China.  We had a harder time explaining what fair use was for.
Jaszi: at the time, staff didn’t know what to do with email. There’s been growth on both sides.
Butler: The DFC did save the internet; it could have been a big shopping mall, and it’s not. And it’s the living embodiment of fair use.  “Don’t kill the internet” is our quick explanation of what we want.

Mike Madison, U Pitt: Reminded of dependence on volunteerism and agency of individual people.  In the long run, ideas and concepts and trends matter, but in the short run, individuals seizing the opportunity and running with it makes an enormous difference. Worth celebrating but also people who are still teaching the next generation should put that into the lessons they teach.  It’s not just power and structure and history: it’s you. 
Adler: learning how to do bridging work is also important—students making connections w/other organizations.
Butler: students also learned that if they didn’t show up, it wouldn’t get done.  If you’re not at the table, you’re on the menu.
Adler: it’s not just ©.  ARL/ALA work on FCC on accessible e-readers.  Important intersections where clinics can help. 

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