1. “Fair use” rights on the Internet (fighting for free culture) Lee Tien Electronic Frontier Foundation www.eff.org DragonCon 2002

2. Legal focus Copyright law, esp. “indirect infringement” Digital Millennium Copyright Act (DMCA) –Anti-circumvention acts –Anti-circumvention technology You can’t show others how to do it Legal basis for DRM....

3. DRM policy issues Who controls technology and innovation? Who controls speech? Who controls culture?

4. Lessig’s refrain: free culture Creativity and innovation always build on the past The past always tries to control the creativity that builds on it Free societies enable the future by limiting this power over the past Ours is less and less a free society

5. This isn’t about wiping out CR! “free” as in free software, not free beer Artists must survive and thrive It’s about restoring balance to CR Consumer rights Technologists’ rights Public domain is a cultural commons

6. In 1790, culture was free Copyright only covered printing Didn’t cover derivative works CR lasted only 14 years! CR was very limited business regulation

7. “Fair use” misleading CR about copying We do lots with works that aren’t copying Reading isn’t “fair” use, it’s unregulated use Only some uses are even regulated by CR “Fair use”: unauthorized regulated uses Unregulated, regulated, and fair uses Miss the point if focus only on fair use

8. Really a fight for unregulated use But I’ll call both fair use If “absolute” CR, these would be illegal Playing a song — singing a song —filksinging Copying news article for your files Clipping a movie frame for a review Reverse-engineering computer program Cutting out cartoon and pasting it on office door

9. What are we doing about it? 2600 (DVD/DeCSS) Felten v RIAA; Xbox Sklyarov/ElcomSoft ReplayTV: consumer fair use MusicCity/Morpheus: P2P innovation BPDG: SSSCA/CBDTPA/broadcast flag

10. Background of culture control Patent protects ideas/inventions CR protects expression (not ideas or facts) DMCA protects “access” (digital locks) Pseudo-IP law –Trade secret really contractual –Trademark really unfair competition –“Trespass to chattels”

11. Content owners’ rhetoric IP = property All unconsented uses = theft If might reduce revenues = theft Like skipping commercials on TV Copyrighted works have never been like other property!

12. CR is a bargain Authors’ rights are means to an end Promote progress of science and arts Authors get fair return Consumers/public get unregulated, fair uses –We can talk about and use others’ ideas –Eventually expression enters public domain Public interest in anti-monopoly

13. Author v. consumer rights Copying, adaptation, distribution, public display/performance (many exceptions) No rights over private display/performance No rights over unregulated uses/facts/ideas “Limited” times “First-sale” for lawful copies Fair use

14. 1928: Disney created Mickey Mickey Mouse in “Steamboat Willie” Parody of Buster Keaton’s “Steamboat Bill” Would Walt call this “theft” today? What about Grimm’s Fairy Tales? Disney empire built on others’ works Creativity, not “theft”

15. Massive expansion of CR 14 years in 1790 (renew for 14 if alive) 42 years in 1831 56 years in 1909 Expanded 11 times since 1962 Today: life of author + 70 years Plus: scope of CR much broader

16. Today’s insanity Documentary film on education in America Shot classroom with TV playing in back Film shows 2 seconds of Homer Simpson Calls Matt Groening (friend): no problem But lawyers said $25,000 And we haven’t even gotten to the Internet

17. refrain Creativity and innovation always build on the past The past always tries to control the creativity that builds on it Free societies enable the future by limiting this power over the past Ours is less and less a free society

18. Why does EFF care? 3 big modern tech changes Everyone thinks about Internet transmission #2: w/computers, all copies, all the time Presumptively all you do on machine or network is regulated use (copy to read) We’re left arguing about tiny bit of fair use What about ordinary unregulated uses?

19. Tech change #3 Electronic works need devices to play/read Control of use can be built into tech IP owners always knew this But not as long as tech makers independent Reverse-engineering = right to tinker Total control requires control of tinkering

20. EFF’s concern: culture control DRM upsets CR bargain All uses regulated by law + tech IP can censor (less use of DRMed works) –Chokepoint pressure (Scientology v Google) Harm to competition Harm to innovation

21. Betamax: last great CR case We usually think about direct infringement But also indirect –Contributory: knowledge + material contrib –Vicarious: control + financial benefit Betamax raised Q: what about devices? –Movie studios wanted to stop VCR because could be used to infringe

22. 1984 Supreme Court decision “time-shifting” = fair use More important: can’t bar device for indirect infringement if –“capable of substantial non-infringing uses” Defines border between CR, innovation –Why we have browsers, PCs, CD-RW –Just because you own movies doesn’t mean you get to control every tech that can play movies

23. Everything has changed Betamax about fair use but protected unregulated uses because tech makers free And CR owners didn’t attack users We were too complacent CR owners saw 200-year-old biz model of fee-per-copy disappearing in digital world Lobbied for barrage of new laws

24. Decade of new laws 1992 Audio Home Recording Act (SCMS) 1995 Digital Performance Right in Sound Recordings Act (new performance right) 1997 No Electronic Theft Act (crim CR) 1998 Copyright Term Extension Act 1998 DMCA 2002 SSSCA/CBDTPA/broadcast flag?

25. Rise of DRM Serves “copyright maximalism” All unconsented uses = theft Crypto, watermarks applied to digital works Devices must obey CR owners’ commands No tinkering

26. DRM upsets CR bargain Public supposed to be able to use works w/o owner permission But DRM builds digital locks/fences (TPM) And DMCA anti-circumvention rules Can’t break TPM even if law permits use –Like using DeCSS to play DVD on Linux Can’t disseminate tech for others

27. What you can’t do if DRM Play copy-protected CDs on computer Play DVDs on players they don’t control Skip commercials by fast-forwarding “Clip” from copy-protected works Make backups Even if law says you can, tech says you can’t

28. eBooks, Sklyarov, Elcomsoft Adobe eBook Reader software = DRM Middlemarch (public domain) –copy 10 selections to clipboard every 10 days –print 10 pages every 10 days Aristotle’s Politics (PD) –Can’t copy –Can’t print –Can have it read aloud

29. Enter AEBPR Adobe eBook Reader is crippled PDF ElcomSoft software allows use of third- party PDF readers So you can transfer to other computer/PDA –Or read on unsupported OS like Linux –Or make backup Only worked on lawfully purchased eBooks

30. ReplayTV: Betamax again It’s a DVR like Tivo, allows digital recording of broadcast Also automatic commercial skipping Hollywood argues indirect infringement We represent 5 ReplayTV owners Asking court to say this is fair use

31. Innovation/competition Hollywood, RIAA have great market power –If your device can’t play their works, no market They agree to use crypto to lock their works DMCA says, can’t unlock w/o consent So all tech makers must get license (K) So Hollywood/RIAA can dictate design Even not related to infringement

32. DMCA keeps tech in line CR owners decide what features Stifles scientific speech (Felten etc.) Stifles reverse-engineering (BnetD) Subsidizes weak security (SDMI, HDCP) Legal perils if research security weaknesses Public won’t learn truth about security holes

33. EFF on P2P We see P2P as potentially awesome app for Internet More efficient bandwidth utilization More democratic Net communication More resistant mode of publishing (against censorship): FreeNet?

34. P2P & MusicCity Are P2P systems legally responsible for users’ infringements? Not pure music service -- platform for content publication of all types No control over or knowledge of user acts Truly decentralized -- MusicCity’s servers go down, users can still share files

35. Betamax again About controlling new technology Qualcomm responsible for what you send using Eudora? Imagine world if Hollywood had tech veto Artists’ compensation a real issue for which we have no answer But answer can’t be Hollywood veto power

36. Latest big battle: BPDG Making world safe for content owners Cripple tech to prevent infringement SSSCA/CBDTPA/broadcast flag (FCC) “police state in every computer” Analog hole: block A-D conversion P2P: Berman bill is digital vigilantism Valenti: war against terrorists (us)

37. refrain Creativity and innovation always build on the past The past always tries to control the creativity that builds on it Free societies enable the future by limiting this power over the past Ours is less and less a free society

38. We need your help Speech, innovation, culture at stake We’re fighting Hollywood and Washington Most people still don’t understand what’s happening How much have you given to the other side by buying CDs/DVDs or watching movies? Join EFF!