Section 107, and thus shifts the balance_The Public Domain: Enclosing the Commons of the Mind

wrong, and perhaps a crime, even if the wire blocked a public

road. Under most circumstances, making wire cutters was also now

against the law.

The ranchers--whose digital equivalents are communications

companies and hardware manufacturers--chafed under these new

rules. The most powerful groups managed to get special

dispensations. Internet service providers, for example, got a

qualified immunity from copyright infringement that occurs over

their networks. But ordinary citizens, librarians, and civil

libertarians also complained, and they were not as well

represented in the legislature. It is true that the new rules

may help to prevent illicit copying, but they also strike a blow

against the exercise of fair use rights--rights that are

important both to free speech and competition. Even if the

content companies were absolutely right about the threats from

digital piracy, this consequence should make us pause. But

critics of the DMCA say that there is little evidence that the

content companies are right. They quote some of the empirical

studies I mentioned in the last chapter, particularly the ones

that show no net negative effect from unauthorized music

downloading on CD sales. They claim--and they are on strong

ground here--that even if there are some losses from the new

copying technologies, there are also benefits. Like the farmers,

the critics would argue, the content companies take the benefits

of the new technology for granted, but wish the law to step in

to ameliorate the harms it also creates. And like the farmers,

they are not yet satisfied. Their new proposals go even

further--scarily further. Thus runs the critics' argument.

The critics of the DMCA conjure up a world in which it will be

illegal to lend each other books or songs, where it will be

impossible for us to copy even small fragments of digital work

for criticism or parody, where encryption research will be

severely "chilled," and where large quantities of the public

domain will be enclosed together with the copyrighted content

that the DMCA is supposed to protect. (The Electronic Frontier

Foundation's "Unintended Consequences" studies give concrete

examples.)2 They think the DMCA undoes the balance at the heart

of copyright law, that it can be used to entrench existing

businesses and their business methods, that it threatens speech,

competition, privacy, and innovation itself. In short, they

think the DMCA is the worst intellectual property law Congress

has ever passed and view the adoption of similar laws around the

world with a reaction little short of horror.

Those who supported the DMCA disagree, of course, and do so

honestly. They see rampant piracy as a reality and the threat to

fair use as some kind of academic hypothetical rarely

encountered in reality. What's more, many of them do not think

fair use is that important economically or culturally. If

markets work well, users could be made to pay for the rights

that fair use gives--but only if they wanted them. One could buy

expensive digital books which one was allowed to share, quote,

or copy for classroom use, and cheaper ones which one had to

keep to oneself. Remember that for many of the people who

supported the DMCA, fair use is something of a "loophole";

certainly not an affirmative right of the public or a reserved

limitation on the original property grant from the state.

(Remember the Sony Axiom from Chapter 4?) They find the analogy

of fair use to a public road ludicrous. This film, or book, or

song, is mine; anything you do with it, or to it, you do at my

sufferance. (Remember the Jefferson Warning from Chapter 2?)

How has the DMCA worked in reality? Which group's attitudes were

vindicated? Two case studies may help us to answer these

questions.

Infectious Speech: The DMCA

and Freedom of Expression

Jon Johansen, a 16-year-old Norwegian, was the unwitting

catalyst for one of the most important cases interpreting the

DMCA. He and two anonymous helpers wrote a program called DeCSS.

Depending on whom you listen to, DeCSS is described either as a

way of allowing people who use Linux or other open source

operating systems to play DVDs on their computers, or as a tool

for piracy that threatened the entire movie industry and

violated the DMCA.

A little background is in order. When you play a commercial DVD,

your actions are partly controlled by a simple encryption scheme

called CSS, or the Content Scramble System. The DVD Copy Control

Association licenses the keys to this encryption system to the

manufacturers of DVD players. Without a key, most DVDs could not

be played. The manufacturer then embeds this key in its hardware

design in such a way that it is easy for your player to decode

and play the movie but hard, at least for a person of average

technical competence, to copy the decoded "stream."

Because the DVD Copy Control Association will only license keys

to manufacturers whose DVD players conform exactly to their

specifications, the CSS scheme can also be used to control

viewers in other ways. For example, DVD players are required to

have one of six "region codes," depending on where in the world

they are sold. Region 1 is the United States and Canada. Region

2 is Japan, Europe, South Africa, the Middle East,

and--bizarrely--Greenland. Region 3 is South Korea, Taiwan, and

Hong Kong; and so on. The CSS scheme can be used to restrict a

movie to a player with the appropriate region code. If you try

to play a movie coded for region 6 (China) in a DVD player from

region 1, it will not play. This allows filmmakers to distribute

different versions of films to different regions at different

times based on sequential release in cinemas, or simply to

distribute DVDs with different prices to different regions

without worrying about whether the cheaper DVDs will "leak" into

the more lucrative markets. CSS and the hardware scheme that

unlocks it can also be used to prevent you from fast-forwarding

through the commercials at the beginning of the movie if the

notice. The machine will not do it. In fact, it is deliberately

built so that it cannot do it.

What we have here is a digital fence that is partly used to

prevent copying. Movie studios are understandably worried about

the worldwide circulation of perfect digital copies of their

movies. CSS was supposed to help to prevent that, or at least

make it much harder. But because almost all movies are encrypted

with CSS and access to the keys comes with conditions, CSS also

allows a more fine-grained control over consumers. Manufacturers

are not allowed to make players which can view movies from all

region codes or skip portions of the DVD that the owners do not

want you to skip. The licensing body puts it this way on its Web

site: "Q. Under the terms of the CSS licensing agreement, is it

legal for a licensed manufacturer to produce and sell a product

which allows a user to disable any CSS protections? A. No. Such

products are not allowed under the terms of the CSS license.

They are illegal."3 A technology introduced to protect

intellectual property rights allows control in ways that those

rights alone do not.

Before the DMCA, the movie companies could have done exactly

this. They could have wrapped their movies in a digital fence.

The consumer electronics companies that wanted to could license

a key and be allowed to use a trademark that indicated that they

were approved by the DVD Copy Control Association. But what if a

manufacturer of DVD players felt that American consumers wanted

to be able to play their Japanese anime movies without buying

another DVD player to do so? Or what if they thought people were

antsy and did not want to watch the FBI notice before every

film? The manufacturer could have tried to "reverse engineer"

the CSS system, to figure out how it worked. If they succeeded,

they could make a player that was free of the restrictions that

the CSS licensing authority imposed.

Of course there were some legal limitations even before the

DMCA. Our hypothetical manufacturer could not break into the

safe where the CSS code was being held or bribe an employee to

provide it. (That would be a trespass or a violation of trade

secret law.) It could not violate copyright laws over the

various types of software that controlled DVD players. It could

not use the trademarks of any of the entities involved,

including any seal of approval granted by the DVD Copy Control

Association. But it could--at least in the United States--try to

reverse engineer the product so as to make a competing product

with features that the customers liked more. It would be no more

illegal than a company making a cheaper generic razor cartridge

that fits my expensive Gillette Mach 3 razor, a generic printer

cartridge to replace the expensive one in my Lexmark printer,

or, for that matter, a generic remote control for my garage door

opener. In each case, of course, the original manufacturer would

prefer that I use their products rather than the unlicensed

ones. They can design their product to make it hard to use a

generic replacement or even tell me that my warranty will be

void if I use one. But they cannot say that the unlicensed

product is illegal. We are back in option one of the Farmers'

Tale, before the legislature acted. The farmers can put up their

wire, and even use it to block passage that would be otherwise

legal, but it is not a crime to figure out a way through the

fence unless the fence cutter is also a trespasser. The DMCA,

however, might have changed all of that.

Let us return to Mr. Johansen, the 16-year-old Norwegian. He and

his two anonymous collaborators claimed that they were affected

by another limitation imposed by the CSS licensing body. At that

time, there was no way to play DVDs on a computer running Linux,

or any other free or open source operating system. (I will talk

more about free and open source software later.) Let's say you

buy a laptop. A Sony Vaio running Windows, for example. It has a

slot in the side for DVDs to slide in and software that comes

along with it which allows the DVD reader to decode and play the

disk. The people who wrote the software have been licensed by

the DVD Copy Control Association and provided with a CSS key.

But at the time Mr. Johansen set out to create DeCSS, the

licensing body had not licensed keys to any free or open source

software developers. Say Mr. Johansen buys the Sony Vaio, but

with the Linux operating system on it instead of Windows. The

computer is the same. The little slot is still there. Writing an

open source program to control the DVD player is trivial. But

without the CSS key, there is no way for the player to decode

and play the movie. (The licensing authority later did license

an open source player, perhaps because they realized its

unavailability gave Mr. Johansen a strong defense, perhaps

because they feared an antitrust suit, or perhaps because they

just got around to it.)

Mr. Johansen and his supporters claimed strenuously that DeCSS

was not in fact an aid to illicit copying. In fact, they argued

that CSS was not really designed to protect DVDs against illicit

copying. Commercial DVD "pirates" do not need to crack the CSS

encryption. Quite the contrary: they produce exact copies of the

DVD, CSS encryption and all, and the buyer's player dutifully

decodes it and plays it. Mr. Johansen claimed that his goals

were very different from those of the pirates.

The motivation was being able to play DVDs the way we want

to. I don't like being forced to use a specific operating system

or a specific player to watch movies (or listen to music). Nor

do I like being forced to watch commercials. When your DVD

player tells you "This operation is not allowed" when you try to

skip commercials, it becomes pretty clear that DRM really stands

for Digital Restrictions Management.4

In Mr. Johansen's view, CSS was simply an attempt to control

consumers, an attempt which should be a valid target for legal

reverse engineering. He has a point. There were indeed other

ways to copy DVDs which did not require DeCSS and which gave you

files of more manageable size. CSS was indeed more than a simple

anticopying device. The entire scheme--the keys, the licenses,

the hardware requirements--was designed to give movie studios

greater control over their movies in a number of ways, some of

them unrelated to copying. On the other hand, he overstated the

point. One function of CSS was indeed to make it harder for the

average person playing a DVD on a computer to copy the file from

the DVD to her hard disk and give it to a friend. It is very

easy for the average 14-year-old to take a commercial music CD,

change the songs into smaller files in the MP3 format, and share

them with a friend. It is not as easy to do the same thing to a

DVD--not impossible, just harder--and CSS is one of the reasons

why.

Mr. Johansen's program, DeCSS, was quickly made available

worldwide. Mirror sites provided copies of the program and lists

of such locations were easy to find using standard search tools.

One such list was provided by the online site run by a magazine

called 2600: The Hacker Quarterly. The magazine features

everything from pictures of pay phones from around the world to

tips on how to hack into computer or telephone systems. Its

publisher is one Eric Corley, who goes by the name Emmanuel

Goldstein--the resistance leader in George Orwell's 1984.

In 1999, Universal City Studios brought suit against a number of

individuals for distributing DeCSS. The case was called

Universal City Studios v. Reimerdes et al. Corley was among the

defendants. The suit prominently included a claim that the

defendants were violating the DMCA. It was in this case that the

DMCA received its first major legal challenge.

Depending on the characterization of the facts, the case seems

to be about very different things. It could seem a classic First

Amendment fight. ("Plucky magazine publisher told copyright law

forbids him from linking to other sites on the Internet!") Or it

could seem the very essence of illegal activity. ("Shadowy site

which unashamedly caters to computer 'hackers' tries to spread

access to the burglar's tools of cyberspace!")

Of course, most lawsuits involve conflicts over facts. Much of

what lawyers do is put the same facts into different conceptual

boxes. But here, merely describing what Corley does, what

hackers are, or what 2600 magazine is all about involves one in

a profound culture clash. The best way to capture the clash may

be to quote from an early entry about Corley in Wikipedia, the

remarkable online encyclopedia.

The encyclopedia first quotes the description of 2600 magazine

from Judge Lewis A. Kaplan, the federal district court judge who

decided the Reimerdes case.

"2600: The Hacker Quarterly has included articles on such

topics as how to steal an Internet domain name, how to write

more secure ASP code, access other people's e-mail, secure your

Linux box, intercept cellular phone calls, how to put Linux on

an Xbox, how to remove spyware, and break into the computer

systems at Costco stores and Federal Express. One issue contains

a guide to the federal criminal justice system for readers

charged with computer hacking. In addition, 2600 operates a web

site located at 2600.com (http://www.2600.com), which is managed

primarily by Mr. Corley and has been in existence since 1995."

The Wikipedia article then continues as follows:

While the judge's tone is clearly disapproving, others would

point out that bookstores, movies and television channels are

filled with material on how to commit murder . . . and that

without the efforts of the hacker community, however

illintentioned, computer insecurity would be even more of a

problem than it already is.5

In fact, Judge Kaplan was not entirely disapproving. He mentions

articles in 2600 that cover laudable or innocuous tasks, as well

as others about tasks that most readers would find objectionable

and rightly think to be illegal. But the anonymous volunteer who

wrote this version of Corley's Wikipedia entry clearly saw the

issue differently. Wikipedia does not portray the hacker

community as universally benevolent ("however ill-intentioned"),

but that community is also seen as providing a useful service

rather than merely a set of how-to guides for would-be digital

burglars.

To most people, pointing out vulnerabilities in computer

security systems seemed, at least in 1999, like telling the

world that your neighbor has forgotten to lock his door and all

his possessions are there for the taking. But to the online

community, it is by no means so clear. From the perspective of

those who are knowledgeable in the field, there is a moral

continuum. There is clearly legitimate computer security and

cryptography research, which includes attempts to break into

computer systems to test their defenses--that is how one finds

out they are secure, after all. Then there are "hackers." This

term could be used to describe those who merely like to program.

Richard Stallman, for example, the originator of the free

software movement, describes himself thus. But the term could

also be used for those who are interested in security or

interoperability--making two systems work together. That was Mr.

Johansen's declared goal, after all. But some self-described

hackers go further. They believe that exploring and disclosing

the weaknesses of supposedly secure systems is intellectually

fulfilling, practically important, and protected by the First

Amendment. They disclaim both moral and legal responsibility for

the consequences of their disclosures. (Or at least the negative

consequences; they frequently take credit for the positive

consequences, such as improved security.) Finally, there are

"crackers," whose interest in gaining entry to computer systems

is malicious or for financial gain. At what point on this

continuum does the activity become legally, or morally,

unacceptable? As the Reimerdes trial went on, it became clear

that the answer the DMCA gave might not be the same as the one

given even by undeniably legitimate computer scientists.

A large number of legal arguments were involved in the Reimerdes

case, but for our purposes here the most important ones dealt

with the relationship between copyright and the First Amendment.

What is that relationship?

In one obvious sense copyright actually aids free speech. By

providing an incentive to create works, copyright "add[s] the

fuel of interest to the fire of genius,"6 and thus helps to

create the system of decentralized creative production and

distribution I described in Chapter 1. But copyright also

restrains speech. At its base, it allows an individual to call

upon the state to prevent someone from speaking or expressing

themselves in a particular way. This may involve a simple

refusal to let the speaker use some text, picture, verse, or

story in their message, or it may involve a refusal to let them

transform it in some way.

Neither copyright law nor the American Constitution is blind to

these dangers. Copyright has a number of built-in safeguards.

The most important of these is that copyright only covers

"original expression"--both the ideas and facts in this book can

be used by anyone without my permission. Thus, goes the theory,

the speaker's freedom of expression is never truly restrained.

The only thing I am barred from is using your words, your exact

plot, your photograph, your music--not your facts, your ideas,

your genre, the events you describe.

That is not always enough, of course. Sometimes the problem is

that the speaker cannot paraphrase around the restraints posed

by copyright. He needs to use the particular text or image in

question to convey his message. The ideas, the facts, or a mere

paraphrase of the expression would not be enough. In cases like

that copyright's answer is "fair use." A politician could not

prevent journalists who disagree with him from quoting his

autobiography in discussing his life. If an African-American

author wishes to tell the story of Gone With the Wind from the

slaves' perspective, she may do so in the face of the copyright

holders' attempts to stop her. Even fair use, though, may not

cover every concern about free expression. Before World War II,

Alan Cranston--later a U.S. Senator--wanted to convince American

readers that the version of Hitler's Mein Kampf published in the

United States was distorted. He believed it to be slanted toward

American sensibilities, downplaying both anti-Semitism and

German expansionism. His solution? To publish his own English

translation, taken direct and uncut from the German edition. He

wanted to prove, with Hitler's own words, that the United States

had a dangerously distorted version of the German leader. But

this is the kind of thing copyright law forbids and it is not

clear that fair use allows. (In the end he did it anyway.)7

For the moment though, it is enough to realize that copyright

law is not immune from the First Amendment or from free speech

concerns more generally. If we do not notice that most of the

time, it is because the internal limitations of copyright--fair

use, the idea-expression distinction, and so on--generally take

care of the First Amendment issue, not because the issue was

never there.

So what First Amendment issues did the DMCA present? Most

obviously, the DMCA gave a new right to copyright owners. By

using a few simple technological measures, they could distribute

a work in a particular format and yet, because of their new

intellectual property right, they could make illegal an

otherwise lawful process of gaining access for the purposes of

making fair use. Of course, the First Amendment allows me to

make fair use factually impossible. I can do that without

raising any constitutional issues by hiding my manuscript and

never letting you see it or just by using unbreakable encryption

on my digital products. It allows me to use existing

conventional property rights to make fair use illegal. If I own

the only copy of the book and it is inside my house, it would be

trespass for you to enter. No First Amendment problem there. But

in passing the DMCA, Congress had created a new intellectual

property right inside copyright law itself, a law aimed directly

at expression, that made it illegal to get access for the

purpose of making fair use even when you legally bought the

physical book, or the physical DVD, and now wish to quote it or

parody it. Even that is not the problem. It is that Congress

cannot grant the exclusive rights of copyright without

simultaneously accompanying them by the limitations of fair

use.8 Regardless of what physical constraints and tangible

property rights might do to limit my ability to make fair uses,

Congress had now, by law, allowed a copyright owner to

distribute a particular work with the exclusive rights but

without some of those limitations.

Imagine that Congress had passed the following law instead of

the DMCA: "Any copyright owner can make it illegal to make a

fair use of a copyrighted work by putting a red dot on their

books, records, and films before selling them. It shall be a

crime to circumvent the red dot even if, but for the dot, the

use would have been fair." That would be clearly

unconstitutional. It gives copyright owners a new intellectual

property right to "turn off fair use" in copyrighted works

distributed to the mass market. Is the DMCA not the same thing?

This was the issue in Reimerdes. True, if I cut through the

digital fence on a DVD in order to excerpt a small portion in a

critical documentary, I would not be violating your copyright,

but I would be violating the anticircumvention provisions. And

DeCSS seemed to be a tool for doing what the DMCA forbids. By

providing links to it, Mr. Corley and 2600 were "trafficking" in

a technology that allows others to circumvent a technological

protection measure. DeCSS could, of course, be used for purposes

that did not violate copyright--to make the DVD play on a

computer running Linux, for example. It enabled various

noninfringing fair uses. It could also be used to aid illicit

copying. But the alleged violation of the DMCA had nothing to do

with that. The alleged violation of the DMCA was making the

digital wire cutters available in the first place. So one First

Amendment problem with the DMCA can be stated quite simply. It

appeared to make it illegal to exercise at least some of the

limitations and exceptions copyright law needs in order to pass

First Amendment scrutiny. Or did it just make it very, very

difficult to exercise those rights legally? I could, after all,

make a videotape of the DVD playing on my television, and use

that grainy, blurry image in my documentary criticizing the

filmmaker. The DMCA would not be violated, though my movie might

be painful to watch.

The other possible First Amendment problem with the DMCA was

that in regulating programs such as DeCSS, the DMCA was actually

regulating "speech." The first challenge to the DMCA was that,

by making tools like DeCSS illegal, the DMCA took away a

constitutionally necessary escape hatch to copyright, thus

making copyright law as a whole violate the First Amendment's

guarantee of freedom of speech. The second challenge was

different. The problem was that the program itself was speech

and the DMCA was regulating it illicitly.

The reasoning went like this. A computer program is a form of

expression and communication. The source code can even be read

by human beings. True, it is an abstract form of

communication--like musical notation and mathematical algorithms.

But those are clearly protected by the First Amendment. Congress

could not make Schoenberg's twelve-tone scale illegal or punish

mathematicians for physics equations that seemed to support a

theory of the universe's origin other than the creationism that

is currently so popular. True, the source code is a description

of a method of doing something, and the code can, if run on a

computer, produce a result--but one could argue that those

attributes do not affect the First Amendment's protection.

Neither a recipe for hash brownies nor a player piano roll for

the Nazi "Horst Wessel" song could constitutionally be

prohibited, even though actually to make the hash brownies would

be illegal, and even though the piano roll is functional (it

"makes" the player piano play the tune). True, most people

cannot read computer code, but speech does not need to be common

or accessible to be protected. In fact, the courts have even

held that the choice to communicate in a particular language is

constitutionally protected in some settings.

On the other hand, software code is undeniably functional. Lots

of functional articles can be said to have some expressive

content--a gun, an airbag, a crash helmet, a set of burglar's

tools, a computer virus. And many actions have expressive

content: a terrorist bombing, for example. Surely these could be

regulated by Congress? To the defendants, DeCSS looked like a

physics equation, a musical score, or a recipe. To the movie

studios, DeCSS had all the First Amendment significance of a

crowbar, lock pick, or, for that matter, a car bombing. The same

argument was repeated over the hyperlinks that Corley and others

provided to sites which carried the DeCSS program. Speech or

function? To the defendants, forbidding 2600 to link to these

sites was like preventing the Washington Post from describing

the availability of drugs on certain blocks of 16th Street. To

the movie companies, the hyperlinks were the equivalent of

loading potential buyers into a van, taking them down there, and

giving them enough money to make the purchase.

Which of the two First Amendment arguments is more convincing?

That the DMCA is a congressionally created off-switch for fair

use? Or that software code is speech and the DMCA restricts it?

Like a lot of scholars, before Reimerdes went to trial, I

thought that the first argument was by far the more powerful. I

still do. I thought the odds of the court buying the "code is

speech" argument were low. About that I was wrong, though it

turned out not to matter.

A number of the reports noted that after some initial

skepticism, Judge Kaplan had been impressed by the defendants'

expert witnesses, particularly those who had testified that code

was speech. When the ruling came out, this impression was

confirmed. Judge Kaplan agreed that code was a form of speech or

expression. But celebration was premature. Having done so, he

disagreed with the defendants' claim that it could not be

regulated.

Computer code is expressive. To that extent, it is a matter

of First Amendment concern. But computer code is not purely

expressive any more than the assassination of a political figure

is purely a political statement. Code causes computers to

perform desired functions. Its expressive element no more

immunizes its functional aspects from regulation than the

expressive motives of an assassin immunize the assassin's

action. In an era in which the transmission of computer viruses--

which, like DeCSS, are simply computer code and thus to some

degree expressive-- can disable systems upon which the nation

depends and in which other computer code also is capable of

inflicting other harm, society must be able to regulate the use

and dissemination of code in appropriate circumstances. The

Constitution, after all, is a framework for building a just and

democratic society. It is not a suicide pact.9

Judge Kaplan is right in saying that there cannot be a bright-

line rule immunizing computer code from regulation merely

because it has expressive elements. The First Amendment does not

protect computer viruses. But the defendants were not arguing

that computer code was constitutionally inviolable, only that

any law that regulated it had to be subject to First Amendment

scrutiny. After all, the government makes the description of how

to make a nuclear weapon classified information. That is clearly

"speech," but its regulation is also constitutional. The First

Amendment is not, and never was, an absolute guarantee of

freedom of speech. Instead, the question is whether the law is

within the realm of "the freedom of speech" guarantee, which in

turn depends on what kind of a law it is. Where does it fit in

the "levels of scrutiny" that courts have constructed to

discriminate between types of legislation affecting speech? Is

the DMCA a "content-based" regulation, such as a law forbidding

labor picketing but allowing other kinds of demonstrations?

Content-based regulations are given the highest and most

demanding level of scrutiny. Alternatively, is it a "content-

neutral" regulation, such as a law that forbids talking--about

any subject--in a library? To Judge Kaplan, the answer was clear,

and grounds for sarcasm.

The reason that Congress enacted the anti-trafficking

provision of the DMCA had nothing to do with suppressing

particular ideas of computer programmers and everything to do

with functionality--with preventing people from circumventing

technological access control measures--just as laws prohibiting

the possession of burglar tools have nothing to do with

preventing people from expressing themselves by accumulating

what to them may be attractive assortments of implements and

everything to do with preventing burglaries.

I agree, though it is worth noting that the burglar tool analogy

is a disputed one. Johansen claimed DeCSS was more like a

screwdriver--something with both licit and illicit uses.

So the DMCA was content-neutral regulation. That means it still

has to pass a fairly daunting legal threshold. It will only be

upheld if "it furthers an important or substantial governmental

interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is no greater

than is essential to the furtherance of that interest."10 Judge

Kaplan felt that the DMCA satisfied that standard. I am not so

sure. Yes, the governmental interest in protecting copyright

holders' rights is important. And yes, I must disagree with some

of my friends in the civil liberties world and say that the

government's interest is unrelated to the suppression of free

expression. But is "the incidental restriction of First

Amendment freedoms no greater than is essential to the

furtherance of that interest"? In other words, could the DMCA

have achieved its goals without imposing as great a limitation

on the expression of people like Mr. Johansen and Mr. Corley?

Congress could have passed many laws less restrictive than the

DMCA. It could have only penalized the use of programs such as

DeCSS for an illicit purpose. If it wished to reach those who

create the tools as well as use them, it could have required

proof that the creator intended them to be used for illegal

purposes. Just as we look at the government's intention in

creating the law, we could make the intent of the software

writer critical for the purposes of assessing whether or not his

actions are illegal. If I write a novel detailing a clever way

to kill someone and you use it to carry out a real murder, the

First Amendment does not allow the state to punish me. If I

write a manual on how to be a hit man and sell it to you, it

may. First Amendment law is generally skeptical of statutes that

impose "strict liability" without a requirement of intent. But

Judge Kaplan believed that the DMCA made the motives of Mr.

Johansen irrelevant, except insofar as they were relevant to the

narrowly tailored exceptions of the DMCA, such as encryption

research. In other words, even if Mr. Johansen made DeCSS so

that he and his friends could watch DVDs they purchased legally

on computers running Linux, they could still be liable for

breaking the DMCA.

The DMCA's breadth goes further than its treatment of intent.

The statute could have only made it illegal to provide a program

yourself. But Judge Kaplan interpreted it to prohibit even

linking to a site where the program is to be found. No

requirement of intent. No requirement that you actually supply

the infringing program. That is a pretty broad interpretation

and one which he admits restricts expression. How could he

conclude that restrictions this broad were "no greater than

essential"? From his rhetoric, the answer is clear. Judge Kaplan

believes the story of the Internet Threat I discussed in Chapter

4. He sees DeCSS as a poison. In fact, he thinks it is worse

than a poison because it may spread to infect others. It is a

disease, a virus. The DMCA is the stern and harsh quarantine

required to control it--a digital public health measure. His

reasoning is worth quoting at length.

There was a time when copyright infringement could be dealt

with quite adequately by focusing on the infringing act. . . .

The copyright holder . . . usually was able to trace the copies

up the chain of distribution, find and prosecute the infringer,

and shut off the infringement at the source. In principle, the

digital world is very different. Once a decryption program like

DeCSS is written, it quickly can be sent all over the world.

Every recipient is capable not only of decrypting and perfectly

copying plaintiffs' copyrighted DVDs, but also of retransmitting

perfect copies of DeCSS and thus enabling every recipient to do

the same. . . . The process potentially is exponential rather

than linear. Indeed, the difference is illustrated by comparison

of two epidemiological models describing the spread of different

kinds of disease. In a common source epidemic, as where members

of a population contract a non-contagious disease from a

poisoned well, the disease spreads only by exposure to the

common source. If one eliminates the source, or closes the

contaminated well, the epidemic is stopped. In a propagated

outbreak epidemic, on the other hand, the disease spreads from

person to person. Hence, finding the initial source of infection

accomplishes little, as the disease continues to spread even if

the initial source is eliminated.11

This is a very good point, and one that the critics of the DMCA

sometimes gloss over too quickly. The structure of digital

replication is indeed different from the old centralized model

of copying and distribution. Instead of tracing all illicit

copies back to a single infringing printing press, we face the

fear that the machinery of piracy can be copied just as fast as

the copies it allows us to make.

It is here that the defendants lose the battle of the metaphors.

Yes, code is speech, it conveys information. But viruses are

codes and they convey information too. Judge Kaplan explicitly

invokes this comparison several times. Biological viruses are

tools for the replication of genetic information. They subvert

their hosts' cellular programming to make copies of themselves,

just as a computer virus hijacks an infected computer and causes

it to send out more copies of the virus. True, DeCSS requires

human intervention to download the program and use it. Yet from

Judge Kaplan's language it is evident that he sees the program

not as an act of expression but as a virus spreading like

wildfire. Seen this way, the individual "choices" to download or

redistribute are simply the program's method of spreading

itself, like the irritation produced by the cold virus that

encourages sneezes and coughs, thereby transmitting the illness

to others. Just as in an epidemic, the harshest measures are

called for. There is no poisoned well here, no pirate with a

printing press we can shut down. Anyone is potentially an

infringer. Individuals cannot be presumed to be healthy. We

cannot give their immune systems, or their motives, the benefit

of the doubt. Instead we must see them as potential carriers.

The healthy must be quarantined as well as the sick. Facing such

a danger, Judge Kaplan agrees that Congress needed to be

draconian. We cannot wait for illegal copying. We must strike

preemptively at the technology that might enable it. There is no

place for inquiries into "intent" here; no way that we can

restrict liability to those who actually provide the program.

Thus, though "code is speech" and the DMCA does incidentally

restrict expression, Judge Kaplan concludes that its restraints

are no greater than is necessary.

There are three questions here. The first is whether Congress

was right. The second is whether, in the context of the movie

industry, we can see evidence of the evil it needed to combat.

The third question is very different: whether the DMCA is

constitutional. In my opinion, the answer to questions one and

two is no, for the reasons outlined in Chapter 4's analysis of

the Internet Threat. Yes, cheaper copying can increase the rate

of illicit copying, but it also lowers advertising costs and

offers new business models--Netflix, downloads on demand, viral

distribution of trailers, and so on. The technology helps as

well as hurts. It does not help the movie industry as much as it

might help the music industry, which can more easily distribute

its products over the Internet. But the Internet also does not

pose as much danger to movies as it does to music. The movie

industry's doomsaying aside, there is no exact movie equivalent

of Napster and there is unlikely to be one in the near future.12

This is not just because movies are longer and harder to

download than songs. It is because most people only watch a film

once. Most people do not want a library of two thousand films to

play again and again. Music is a repeated experience good in a

way that movies simply are not, and that social fact profoundly

affects the likelihood of downloading as opposed to rental. The

transient song on a radio or an Internet stream is not an

adequate substitute for possessing the song

permanently--something which costs a lot more. Apart from kids'

movies, which can be used to induce catatonia in one's progeny

time and again, and a few classic favorites, most people do not

want to own movies. Watching the film on television or renting

it for a night is perfectly satisfactory. Both of these involve

little hassle or cost. The content industries are fond of saying

"you cannot compete with free." But this is simply not true.

Cheap and easily acquired goods of certified quality compete

very well with free goods of uncertain quality whose acquisition

involves some difficulty. This is one of the main reasons the

movie companies were wrong in the Sony case.

Thus while Judge Kaplan's discussion of the looming digital

Black Death is nicely apocalyptic, it does not seem very

accurate. How many of your friends download movies illicitly

over the Internet, let alone movies that were ripped from DVDs?

Yes, it can be done. But the actual descriptions of the process

in the Reimerdes case smack more of bathos than terror.

Although the process is computationally intensive,

plaintiffs' expert decrypted a store-bought copy of Sleepless in

Seattle in 20 to 45 minutes. . . . The decryption of a CSS-

protected DVD is only the beginning of the tale, as the

decrypted file is very large. . . . One solution to this

problem, however, is DivX, a compression utility available on

the Internet that is promoted as a means of compressing

decrypted motion picture files to manageable size. . . . While

the compressed sound and graphic files then must be

synchronized, a tedious process that took plaintiffs' expert

between 10 and 20 hours, the task is entirely feasible. . . . At

trial, defendants repeated, as if it were a mantra, the refrain

that plaintiffs, as they stipulated, have no direct evidence of

a specific occasion on which any person decrypted a copyrighted

motion picture with DeCSS and transmitted it over the Internet.

But that is unpersuasive. Plaintiffs' expert expended very

little effort to find someone in an IRC chat room who exchanged

a compressed, decrypted copy of The Matrix, one of plaintiffs'

copyrighted motion pictures, for a copy of Sleepless in Seattle.

While the simultaneous electronic exchange of the two movies

took approximately six hours, the computers required little

operator attention during the interim.

So the epidemic threat that hangs over the movie industry

consists of the danger that someone will spend fifteen minutes

decrypting and ten to twenty hours tediously synchronizing a

movie that is then available for a speedy six-hour download?

Admittedly, someone only needs to do the synchronizing once.

There are newer tools that make the task easier. And we could

improve the download time. But even so, would you bother? Faced

with the colossal expense and hassle of renting the same movie

at Blockbuster for $3, some consumers might prefer this process,

I suppose. But I would not sell my shares in movie studios quite

yet. In fact, the real threat to movie studios is the large-

scale criminal distribution of illicitly copied DVDs--copied bit

for bit from the original. The distributors of those do not need

to use programs like DeCSS. A more distant threat comes from

legal recordings from television made on TiVo's and

ReplayTVs--where consumers' actions are legal and CSS is not an

issue. So far as we can tell, there is no measurable effect of

illicit digital downloads on sales or rentals of DVDs. We could

go through the process Judge Kaplan describes, I suppose, just

as when the VCR was invented we could have taped movies from

television and swapped them with our friends. But as the movie

studios discovered after the Sony case, most of us would rather

just rent the movie. Because something is possible does not mean

it will happen.

So in my view, Congress generally overestimated the threat posed

by the digital world and underestimated the benefits. In

addition, the movie industry is a weak place to make the case

for the necessity of the DMCA. Fine, but that is not the legal

issue here. The constitutionality of the DMCA does not turn on

whether the DMCA was a good idea. That is not the court's

decision to make. The question is not even whether the

particular industry involved is, in reality, facing much of a

threat from digital downloading. The law, after all, exists for

all digital works, not just the ones at issue here. The question

is whether the restriction on speech imposed by the DMCA was "no

greater than is essential." And that is a harder question.

I still disagree with Judge Kaplan. A more narrowly tailored

statute could have accomplished the DMCA's legitimate goals

without impinging as greatly on expression. I think that the

rhetoric of the Internet Threat blinded Judge Kaplan to some

important issues and led him to overestimate the danger and thus

the severity of the measures necessary to combat it. Thus, even

under the "code is speech" part of the analysis, I think the

DMCA fails First Amendment scrutiny. But if we are confining

ourselves to the expression inherent in the software itself, I

acknowledge that it is a close call.

Sadly, Judge Kaplan spent much less time on the other First

Amendment argument against the DMCA--that it is unconstitutional

because it gives copyright holders a new intellectual property

entitlement, created by Congress under the Copyright Clause, a

legal power to deprive users of a constitutionally required

limitation on copyright's exclusive rights. In my view, he also

framed the argument wrongly when he did discuss it. To be fair,

these problems can partly be traced to the fact that the

defendants spent most of their energy on the argument that code

was expression, paying less attention to everything else. As

Judge Kaplan explained it, the claim was that the DMCA might

have the effect of restricting an alleged fair use right of

access to copyrighted material. Predictably enough, he responded

that there was no such right of access. Copyright holders could

always lock up the book or restrict entrance to the gallery. In

any event, while fair use of DVDs might be curtailed, he argued

that most movies are also available on videotape. Even if the

film were only available on DVD, the prospective fair user could

write down the words and quote them, or record the sound from

the screen. Finally, Judge Kaplan pointed out that even if the

DMCA might allow a significant erosion of fair use to develop

over time, such a problem was not present here. Those making

First Amendment claims are sometimes allowed by courts to show

that, even if the law as it applied to them were constitutional,

it would restrict the First Amendment rights of others. Judge

Kaplan declined to apply that doctrine here. In effect, he said

"come back when there is a problem."

On appeal, the case was decided by a panel led by Judge Jon

Newman. Here the fair use argument received more attention but

the result was the same: "Come back when there is a problem."

Significantly, both courts pointed out another concern. The DMCA

could effectively make copyright perpetual because even though

the copyright term would expire, the legally protected

encryption would continue, and tools such as DeCSS, which would

have allowed access to the public domain work, would be

illegal.13 This is a major issue because it appears to violate

both the First Amendment and the Copyright Clause's requirement

of a limited time. The defendants did not spend adequate time on

this argument, however, and the courts again left it for later

consideration.

The court of appeals saw the defendants' argument in just the

same way as Judge Kaplan had seen it: a claim that there was a

fair use right of actual access to the finest version of every

work in every medium, on which the DMCA put a practical

limitation. Such a claim was easy to dismiss. There was no such

right of guaranteed practical access. Copyright owners could

restrict the practical ability to exercise fair use in many ways

without the Constitution being involved. In addition, in a world

where copyrighted content is frequently available in both analog

and digital form, the actual effects of the DMCA might be

trivial and were, in any event, constitutionally acceptable.

Judge Newman repeated Judge Kaplan's point that one could always

make fair use of the work in a way the DMCA did not reach, such

as by videotaping a picture of the screen.

The fact that the resulting copy will not be as perfect or

as manipulable as a digital copy obtained by having direct

access to the DVD movie in its digital form, provides no basis

for a claim of unconstitutional limitation of fair use. A film

critic making fair use of a movie by quoting selected lines of

dialogue has no constitutionally valid claim that the review (in

print or on television) would be technologically superior if the

reviewer had not been prevented from using a movie camera in the

theater, nor has an art student a valid constitutional claim to

fair use of a painting by photographing it in a museum. Fair use

has never been held to be a guarantee of access to copyrighted

material in order to copy it by the fair user's preferred

technique or in the format of the original.

Once the issue is framed this way, the case has been lost. I

would argue that there are three baseline errors here: a focus

on "affirmative rights of access" as opposed to limits on

Congress's power in handing out exclusive rights over expression

without their constitutionally necessary limitations, a focus on

practical effects of the provisions rather than on formal

constitutional limitations on the copyright system over all

classes of works, and a confusion between intellectual property

rights and physical property rights that goes to the heart of

the Jefferson Warning discussed in Chapter 2. The question is

not whether users have a constitutionally protected right of

practical access to a preferred version of a work. The question

is whether it violates the First Amendment for Congress to give

to copyright holders an intellectual property right to exempt

their copyrighted works in some formats from fair use and other

provisions that are necessary for copyright law in general to be

constitutional.

Remember my earlier example. What if Congress amended Section

1201 to say "Any copyright owner can make it illegal to make a

fair use of a copyrighted work by putting a red dot on their

books, records, and films before selling them. It shall be a

crime to circumvent the red dot even if, but for the dot, the

use would have been fair"? This statute, I think, is clearly

unconstitutional. It would be no answer to say that some owners

will not use the red dot, and even for those that do, there will

be older, dotless versions still available. It is irrelevant

that I might be able to copy down the crucial lines of the book

over your shoulder while you read it and thus claim that I,

personally, had not circumvented the dot. The

unconstitutionality of the statute does not turn on whether the

dots might fall off because of bad adhesive, or whether there

are many secondhand bookstores in the area, in which undotted

volumes can be found. Even if the red dot rule were only to be

applied to hardback books, or graphic novels, or cassette tapes,

it would still be unconstitutional. Nor do we have to wait until

the entire marketplace is dominated by red-dotted products

before considering the issue. It is no answer to say that even

before the red dot rule, copyright holders could always have

hidden their works, or locked them in safes, or even negotiated

individual contracts with the purchasers that have the effect of

limiting fair use. That way of framing it just misunderstands

the issue on a fundamental level. The claim is not about the

happenstance of practical access or the way that a copyright

holder can use physical control of an object or existing

tangible property rights to undercut fair use.

The point is that Congress violates the First Amendment when,

with respect to any work, it gives me an intellectual property

right to prohibit copying and distribution of an expressive work

sold in the marketplace and an additional legal power to opt out

of the limitations contained in Section 107 over that work. The

bundle of rights conveyed by the DMCA does exactly that. It is

not the DMCA alone that we must analyze. The question is whether

Congress can give the exclusive rights contained in Section 106

of the Copyright Act over a particular class of works (say

digital works), if it also gives a new right to prohibit

citizens from gaining access to those works for the purposes of

making a fair use. If Judge Kaplan and Judge Newman are correct,

then the DMCA gives an entirely new intellectual property right

(technically, a legal power) to the copyright holders to do

exactly that. To put it the other way around, the DMCA subtracts

from the citizen's bundle of entitlements under federal

privilege) to gain access to a work legally in his possession

for the purpose of making a fair use. It is that rule change

that is unconstitutional, I would argue, and the way Judge

Kaplan and Judge Newman frame that issue makes them miss the

point.

Framing is important. The confusions that I have talked about in

this book all make an appearance. It starts with the whole

controversy being framed by the Internet Threat story line from

Chapter 4. Because Judge Kaplan is convinced that every citizen

is now a potential infringer, a potentially infectious virus

carrier, he is ill disposed to listen to claims about fair use.

Civil liberties claims do not do very well in epidemics. It is

only right for him to defer to Congress's perception of the

problem and the solution, of course. But he buys so deeply into

the magnitude of the threat, the extent of the potential piracy

pandemic, that it is very hard for him to take seriously the

idea that even here there is a legitimate constitutional fair

use claim.

The Sony Axiom from Chapter 4 is also ignored, or at least

undervalued. As I pointed out there, without a robust set of

exceptions and limitations on copyright, the idea that cheaper

copying requires greater control will inexorably drive us toward

the position that the technologies of cheaper reproduction must

be put under the governance of copyright holders. The DMCA

continues that logic; its drafters concluded that the right to

get access to digital works for purposes of making a fair use

must be taken from the bundle of rights possessed by citizens,

while the right to enjoin both access and the technologies of

access is added to those of copyright holders. Never mind the

correctness of such a conclusion as a matter of policy. Are

there constitutional limitations on Congress taking such an

action? Kaplan and Newman in effect tell us, "not yet."

More important than the perception of the threat is the

understanding of what intellectual property is all about. In

Chapter 2, Jefferson warned us that intellectual property rights

are not like physical property rights. In analyzing the DMCA,

where do we turn for analogies? To physical property, violence,

and theft. The cases analyzing the DMCA are full of analogies to

trespass, to breaking and entering, to burglars' tools, and to

safecrackers. Private property carries a lot of baggage with it,

but we know it well--it is the place we naturally turn for

insight. Even I, in order to point out some of the difficulties

with those analogies, had to turn to farmers and barbed wire and

public rights-of-way along highways. There is nothing wrong with

analogies. They help us understand things that are new by

comparing them to things we think we understand better.

Analogies are only bad when they ignore the key difference

between the two things being analyzed. That is what happens

here.

Jefferson reminded us that intellectual property rights are

clearly artifacts of state creation, monopolies whose internal

limitations in scope, duration, and so on are just as important

as the rights themselves. Jefferson doubts whether even property

rights over land can be understood as natural and

absolute--copyrights and patents, which cover subject matter that

can be infinitely reproduced without diminishing its substance,

clearly cannot. They frequently involve a claim to control

purchasers' behavior with respect to some aspect of an artifact

after it has been sold to them in the marketplace, making

simpleminded analogies to "breaking and entering"

inappropriate--the extent of the property in question is

precisely the issue in dispute. (When Johansen was tried in

Norway under the national computer crime law, the court

laconically observed that he had bought the DVDs, and one cannot

break into one's own property--effectively turning the analogy on

its head.) Jefferson starts from the baseline that monopoly is

the exception and freedom is the rule--any limitations on that

freedom have to be justified. That is why he always discusses

the right and the limitations on the right as an inseparable

pair. One cannot discuss them in isolation.

Kaplan and Newman are fine, thoughtful judges. They do not

altogether ignore those points. But look how the analysis is set

up. At several points in the discussion, there seems to be the

assumption that copyright owners have entitlements to total

control as of right and that fair use is a mere lucky loophole

which, because it can be negated by the happenstance of whether

one can get physical access, can hardly have major First

Amendment status. They keep pointing out that physical control

and tangible property rights frequently allow copyright holders

to make fair use impracticable. "And so what?" Jefferson might

have responded. This is a classic non sequitur. The question is

whether the Congress has the power to add a new right of access-

denial to the intellectual property monopoly it is constructing,

undermining--as to some works and some fair uses--the balance that

the law sets up. The citizen is not pleading for a new right of

access, trumping all physical restraint and tangible property

rights. The citizen is claiming that Congress has no power to

give exclusive rights to restrain copying of digital content

while simultaneously taking away the citizen's existing right to

get access to that content for the purposes of fair use--at least

in those cases where access is physically possible and violates

no other property right, real or intellectual.

The Constitution does not require the United States to break

into President Nixon's desk to get me his tapes, buy me a tape

recorder, or give me a right to 18.5 minutes on the broadcast

airwaves to play them. But if I can get access to the tapes

legally, it does forbid the government from giving President

Nixon the power to put a red dot on those tapes and thus claim

an intellectual property right to stop me playing them on TV or

digitizing them to make the sounds clearer. The restraints

imposed by physical happenstance and tangible property rights

are different from those imposed by copyright--a congressionally

created monopoly over expression. We cannot assume because one

is constitutionally acceptable that the others are too.

Jefferson understood that, and his analysis can help us even in

a constitutional conflict over a technology he could hardly have

dreamt of. (Though perhaps with Jefferson, this is a bad bet.)

The same point comes up in a different way when the court

disconnects the fair use discussion from the exclusive rights

discussion. The question is not "Do I have a constitutionally

protected right of physical access to a preferred version of a

movie, so as to make my task easy?" That gets the court caught

up in questions of when a majority of movies will only be

available on DVD, or how poor a substitute the analog version

would be, or how many fair uses will require actually cutting a

digital fence. But all of these inquiries miss the point. The

question is "Can Congress hand out the exclusive rights of

rights with the suite of limitations that the court has

repeatedly said "saves" copyright from violating the First

Amendment?" The proportion of digital works to the total number

of works produced in other formats is irrelevant. As to these

works, the rule is unconstitutional. But what about the number

or proportion of types of fair uses affected? That is more

relevant but still not dispositive in the way Kaplan and Newman

imagined. True, not every trivial statutory modification of fair

use makes copyright unconstitutional. But this is not a trivial

modification: over an entire class of works, copyright owners

are given a legal power to deprive users of their privilege to

gain otherwise lawful access for the purposes of fair use. If

you give the digital filmmaker the exclusive rights of copyright

but forbid the film professor from going through the otherwise

lawful process of parodying or quoting, that rule is

unconstitutional, no matter how many other fair uses are

unaffected. If the copyright law were amended to forbid

journalists playing, on a Friday, excerpts of legally acquired

red-dotted tapes made by presidents whose last name begins with

N, it would still be unconstitutional.

The legal implementation of this conclusion would be simple. It

would be unconstitutional to punish an individual for gaining

access in order to make a fair use. However, if they cut down

the digital fence to make illicit copies, both the cutting and

the copying would be illegal. But what about the prohibition of

trafficking in digital wire cutters, technologies such as DeCSS?

There the constitutional question is harder. I would argue that

the First Amendment requires an interpretation of the

antitrafficking provisions that comes closer to the ruling in

the Sony case. If Mr. Johansen did indeed make DeCSS to play

DVDs on his Linux computer, and if that were indeed a

substantial noninfringing use, then it cannot be illegal for him

to develop the technology. But I accept that this is a harder

line to draw constitutionally. About my first conclusion,

though, I think the argument is both strong and clear.

Ironically, there is some support for my claim and it comes from

an even higher, if not uniformly more thoughtful, set of judges

than Newman and Kaplan. In the depressing case of Eldred v.

Ashcroft, the Supreme Court upheld retrospective copyright term

extensions against a variety of constitutional challenges. (Full

disclosure: I assisted in the preparation of an amicus curiae

brief in the case.) One of those challenges was based on the

First Amendment. The fairly reasonable claim was that Congress

could not retroactively lock up an entire twenty-year swathe of

culture that had already been produced. Such a law would be all

restraint of expression, performance, republication, adaption,

and so on, with no incentive benefits. The Court was

unconvinced. But it did say:

To the extent such assertions raise First Amendment

concerns, copyright's built-in free speech safeguards are

generally adequate to address them. We recognize that the D.C.

Circuit spoke too broadly when it declared copyrights

"categorically immune from challenges under the First

Amendment." . . . But when, as in this case, Congress has not

altered the traditional contours of copyright protection,

further First Amendment scrutiny is unnecessary.14

The DMCA, of course, does exactly this. As to digital works it

alters the "traditional contours of copyright protection" in a

way that affects "copyright's built-in free speech safeguards."

That is what the Farmers' Tale was all about. Perhaps one day,

in a case not involving a Norwegian teenager, a hacker magazine

run by a long-haired editor with an Orwellian nom de plume, and

an obscure technology that is accused of posing apocalyptic

threats to the American film industry, that point will come out

more clearly.

But the issue of speech regulation is only half of the story.

Intellectual property rights over digital technologies affect

not only speech, but the framework of competition and markets as

well, as the next example makes clear.

The Apple of Forbidden Knowledge:

The DMCA and Competition

You could tell it was a bizarre feud by the statement Apple

issued, one strangely at odds with the Californian Zen-chic the

company normally projects. "We are stunned that RealNetworks has

adopted the tactics and ethics of a hacker to break into the

iPod, and we are investigating the implications of their actions

under the DMCA and other laws."15

What vile thing had RealNetworks done? They had developed a

program called Harmony that would allow iPod owners to buy songs

from Real's Music Store and play them on their own iPods. That's

it. So why all the outrage? It turns out that like the story of

DeCSS, this little controversy has a lot to teach us about the

landscape of intellectual property disputes, about the mental

topography of the high-tech economy. But where the DeCSS case

was a war of metaphors around the boundaries of freedom of

expression, the iPod story is about ways in which intellectual

property marks the limits of competition.

Apple iPods can be used to store all kinds of material, from

word processing documents to MP3 files. If you want to use these

popular digital music players to download copy-protected music,

though, you have only one source: Apple's iTunes service, which

offers songs at 99 cents a pop in the United States, 79 pence in

the United Kingdom. If you try to download copy-protected

material from any other service, the iPod will refuse to play

it. Or at least, that had been the case until Real managed to

make their Harmony service compatible.

Real's actions meant that consumers had two sources of copy-

protected music for their iPods. Presumably all the virtues of

competition, including improved variety and lowered prices,

would follow. The iPod owners would be happy. But Apple was not.

The first lesson of the story is how strangely people use the

metaphors of tangible property in new-economy disputes. How

exactly had Real "broken into" the iPod? It had not broken into

my iPod, which is after all my iPod. If I want to use Real's

service to download music to my own device, where's the breaking

and entering?

What Real had done was make the iPod "interoperable" with

another format. If Boyle's word processing program can convert

Microsoft Word files into Boyle's format, allowing Word users to

switch programs, am I "breaking into Word"? Well, Microsoft

might think so, but most of us do not. So leaving aside the

legal claim for a moment, where is the ethical foul?

Apple was saying (and apparently believed) that Real had broken

into something different from my iPod or your iPod. They had

broken into the idea of an iPod. (I imagine a small, platonic

white rectangle, presumably imbued with the spirit of Steve

Jobs.) Their true sin was trying to understand the iPod so that

they could make it do things that Apple did not want it to do.

As an ethical matter, does figuring out how things work, in

order to compete with the original manufacturer, count as

breaking and entering? In the strange netherworld between

hardware and software, device and product, the answer is often a

morally heartfelt "yes!" I would stress "morally heartfelt." It

is true manufacturers want to make lots of money and would

rather not have competitors. Bob Young of Red Hat claims "every

business person wakes up in the morning and says 'how can I

become a monopolist?' " Beyond that, though, innovators actually

come to believe that they have the moral right to control the

uses of their goods after they are sold. This isn't your iPod,

it's Apple's iPod.

Yet even if they believe this, we don't have to agree. In the

material world, when a razor manufacturer claims that a generic

razor blade maker is "stealing my customers" by making

compatible blades, we simply laugh. The "hacking" there consists

of looking at the razor and manufacturing a blade that will fit.

To say this is somehow immoral seems laughable. Is the

conclusion changed when the information about compatibility is

inscribed in binary code and silicon circuits, rather than the

molded plastic of a razor cartridge? What if ensuring the "fit"

between the two products is not a matter of making sure the new

blades snugly connect to the razor but of making sure the

software embedded in my generic product sends the right code to

the original product in order to be recognized? Our moral

intuitions are a little less confident here. All kinds of bad

policy can flourish in that area of moral uncertainty.

100

This leads us to the law. Surely Apple's suggestion that the

DMCA might prohibit what Real had done is as baseless as their

moral argument? In the United States, the answer is "probably,"

at least if the courts continue in the direction they are

currently taking, but it is a closer call than you would think.

Internationally, the answer is even less certain. That is where

the iPod war provides its second new-economy lesson. Think for a

moment about the way that the law shapes the business choices in

this dispute.

101

In a competitive market, Apple would choose whether to make the

iPod an open platform, able to work with everyone's music

service, or to try to keep it closed, hoping to extract more

money by using consumers' loyalty to the hardware to drive them

to the tied music service. If they attempted to keep it closed,

competitors would try to make compatible products, acting like

the manufacturers of generic razor blades or printer cartridges.

102

The war would be fought out on the hardware (and software)

level, with the manufacturer of the platform constantly seeking

to make the competing products incompatible, to bad-mouth their

quality, and to use fear, uncertainty, and doubt to stop

consumers from switching. (Apple's actual words were: "When we

update our iPod software from time to time, it is highly likely

that Real's Harmony technology will cease to work with current

and future iPods.") Meanwhile the competitors would race to

untangle the knots as fast as the platform manufacturer could

tie them. If the consumers got irritated enough they could give

up their sunk costs and switch to another product altogether.

103

All of this seems fine, even if it represents the kind of

socially wasteful arms race that led critics of capitalism to

prophesy its inevitable doom. Competition is good and

competition will often require interoperability. But what do we

mean by competition? Is it competition if I assassinate your

employees or poison the food in your restaurant? If I trespass

on your land in order to sell a competing product? If I break

into your safe to steal your trade secrets, use my monopoly

position in the market to impose resale price agreements, or

violate your patent? It is the law that draws the line between

competition and theft, between virtuous competitive imitation

and illicit "piracy."

104

Sometimes we need to give innovators property rights that allow

them to prevent second-comers from free riding on their efforts.

We have to do so because it is necessary to encourage future

innovation. On the other hand, sometimes we not only allow the

second-comer to free ride, we positively encourage it, believing

that this is an integral part of competition and that there are

adequate incentives to encourage innovation without the state

stepping in. Intellectual property policy, indeed a large part

of the policy behind all property rights, is about drawing the

line between the two situations. Too far in one direction and

innovation suffers because potential investors realize good

ideas will immediately be copied. Too far in the other direction

and monopolies hurt both competition and future innovation.

105

Imagine you are the first person to invest in getting the public

to eat burritos for breakfast, or to place a petrol station at a

certain crossroads, or to clip papers together with a folded bit

of wire. In each case we give you some property rights. The

fast-food vendor may own a trademarked phrase or jingle that the

public learns to associate with his product. Since the patent

office issued a patent for the sealed and crimped "peanut butter

and jelly" sandwich I described at the beginning of the book,

even a patent is not out of the question if your disgusting

concoction is sufficiently novel and nonobvious. But we should

not allow you to have a patent over all burritos, or burritos

for breakfast, still less over the idea of fast food. As for the

paper clip maker, there might be a trademark over the particular

paper clip, but the idea of folding wire to secure paper stays

in the public domain. The owner of the petrol station gets

physical ownership of the land, but cannot stop a second-comer

from setting up shop across the road, even if the first-comer's

labor, capital, and effort proved that the location is a good

one. We positively encourage follow-on imitation in those cases.

106

Now how about the case in point? What does Apple get in the way

of property rights? Think back to my description of the

intellectual property system in Chapter 1. They can get patents

over those aspects of the iPod--both hardware and software--that

are sufficiently innovative. Patents are what we use to protect

inventions. They also get a copyright over the various pieces of

software involved. That protects them only against someone who

copies their code, not someone who writes new software to do the

same thing. Copyrights are what we use to protect original

expression. They get rights under trademark law over the name

and perhaps parts of the design of the product--maybe the

distinctive look of the iPod--though that is a bit more complex.

All of these rights, plus being the first to break into the

market in a big way, the brilliance of the design, and the tight

integration between the hardware and the service, produce a

formidable competitive advantage. The iPod is a very good

product.

107

Now if a competitor infringes any of Apple's rights, for example

by making a literal copy of the code, using their trademark in a

way the law does not allow, or infringing on one of their

patents, then Apple can shut them down and extract hefty

damages. Quite right, too. But should they be able to prevent

someone from making an interoperable product, provided they do

not violate any of these existing rights in the process? Laws

like the DMCA make that question more complicated.

108

Nowadays, there is software in many, many more products than you

would imagine. Your watch, your phone, your printer, your

thermostat, your garage door opener, your refrigerator, your

microwave, your television--the odds are that if you bought them

in the last ten years, they have some software component. In the

1970s the courts and Congress had concluded that software could

be copyrighted as original expression, like a song or a novel,

as well as being patented when it was novel, nonobvious, and

useful. Frequently, different aspects of the same program will

be covered by copyright and by patent. But software is a machine

made of words, the machine of the digital age. That fact already

causes some problems for our competition policy. Will the

exceptions and limitations designed to deal with a copyright

over a novel work adequately when they are applied to Microsoft

Windows? That issue was already unclear. With the DMCA, we have

added another crucial problem. Where there is copyrighted

software there can be digital fences around it. If the copyright

owner can forbid people to cut these fences to gain access to

the software, then it can effectively enlarge its monopoly,

capture tied services, and prohibit generic competition.

109

It was just this line of thought that led some other companies

to do more than merely make threatening noises about the DMCA.

Lexmark makes printers. But it also makes lots of money off the

replacement ink or toner cartridges for those printers. In some

cases, in fact, that is where printer companies make the

majority of their profits. As a result, they are not exactly

keen on generic replacements. Chamberlain makes garage door

opener systems. But they also sell replacements for the

controllers--the little devices that you use to trigger the door.

Lawyers from both of those firms looked at the DMCA and saw a

chance to do something most companies would love to do; to make

generic competition illegal. Lexmark designed their printer

program so that it would not accept a toner cartridge unless it

received the correct "checksum" or validation number. So far,

this looks no different from the razor manufacturer trying to

make it difficult to manufacture a compatible replacement blade.

Generic competitors now had to embed chips in their printer

cartridges which would produce the correct code, otherwise they

would not work in Lexmark printers.

110

Static Control Components is a North Carolina company that

manufactures chips whose main function is to send the correct

code to the printer program. With this chip implanted in them,

generic cartridges would work in Lexmark printers. Lexmark's

response could have been to change their program, rendering the

chip obsolete, just as Apple could change the iTunes software to

lock out Real Music's Rhapsody. Doing so would have been quite

within their rights. Indeed it is a standard part of the

interoperability wars. Instead, Lexmark sued Static Controls,

claiming, among other things, a violation of the DMCA.16 Like

Apple in the press release I quoted earlier, Lexmark clearly saw

this as a kind of digital breaking and entering. This was their

printer, their printer program, their market for replacement

cartridges. Static was just helping a bunch of cheats camouflage

their generic cartridges as authentic Lexmark cartridges.

Translated into the legal language of the DMCA the claim is a

little different, but still recognizable. Static was

"trafficking" in a device that allowed the "circumvention of a

technical protection measure" used to prevent "access to a

copyrighted work"--namely the computer program inside the

printer. That is behavior that the DMCA forbids.

111

The garage door company, Chamberlain--who also claimed to be

concerned about the security of their garage doors--made a

similar argument. In order to get the garage door to open, the

generic replacement opener had to provide the right code to the

program in the actual motor system. That program is copyrighted.

The code controls "access" to it. Suddenly, the manufacturers of

generic printer cartridges and garage door openers start to look

rather like Jon Johansen.

112

Surely the courts did not accept this argument? Bizarrely

enough, some of them did--at least at first. But perhaps it was

not so bizarre. The DMCA was indeed a radical new law. It did

shift the boundaries of power between intellectual property

owners and others. And intellectual property rights are always

about restraining competition, defining what is legitimate and

what is not--that is what they do. There was a respectable

argument that these devices did in fact violate the DMCA. In

fact, it was respectable enough to convince a federal judge. The

district court judge in the Lexmark case concluded that Lexmark

was likely to win on both the DMCA claim and on a more

traditional copyright claim and issued an injunction against

Static Control. In Skylink, the case involving garage door

openers, by contrast, the district court held that the universal

garage door opener did not violate the DMCA. Both cases were

appealed and both appeals courts sided with the generic

manufacturers, saying that the DMCA did not prohibit this kind

of access--merely making a computer program work the way it was

supposed to.

113

The U.S. Court of Appeals for the Federal Circuit (CAFC) heard

the Skylink appeal. In a remarkably far-reaching decision, the

court effectively took many of the positions that Mr. Corley's

lawyers had argued for in the DeCSS case, but they did so not to

protect speech, but to protect competition. In fact, they

implied that taking Chamberlain's side in the case would

silently overrule the antitrust statutes. They also interpreted

the new right created by the DMCA so as to add an implicit

limitation. In their construction, merely gaining access is not

illegal; only gaining access for the purpose of violating the

court had been willing to accept that the new access right

allows a copyright holder to prohibit "fair uses as well as

foul." When Chamberlain made the same argument as to their

garage door opener program, the CAFC was incredulous.

114

Such an entitlement [as the one Chamberlain claims] would go

far beyond the idea that the DMCA allows copyright owner to

prohibit "fair uses . . . as well as foul." Reimerdes, 111 F.

Supp. 2d at 304. Chamberlain's proposed construction would allow

absence of any feared foul use. It would, therefore, allow any

technological measures, to repeal the fair use doctrine with

respect to an individual copyrighted work--or even selected

copies of that copyrighted work.17

115

There are multiple ironies here. The CAFC rarely meets an

intellectual property right it does not like. It has presided

over a twenty-year expansion of American patent law that many

scholars find indefensible. But when (for dubious jurisdictional

reasons) it sorties beyond its traditional ambit of patent law,

it is stunned by the potential expansiveness of the DMCA. Then

there is the comparison with the Reimerdes case. How interesting

that the First Amendment and concerns about free expression have

comparatively little bite when applied to the DMCA, but

antitrust and concerns about competition require that we curtail

it. After all, the heart of Mr. Johansen's argument was that he

had to write the DeCSS program in order to play his own DVDs on

his own computer--to get access to his own DVDs, just as the

purchaser of a replacement garage door control is getting access

to the program that operates his own garage door. Indeed, Mr.

Johansen's criticism of CSS was that it allowed the movie

companies, "through a combination of contractual terms and

technological measures, to repeal the fair use doctrine with

respect to an individual copyrighted work." Mr. Corley echoed

those claims.

116

Of course, the situations are not identical. The key limitation

in Skylink is that the court saw no threat of "foul use." The

Reimerdes court could see little else. On the other hand, the

rulings are not easily reconciled. The Skylink court cannot

imagine that Congress would want to give the copyright holder a

new "property" right to prevent access unconnected to any

underlying copyright violation.

117

As we have seen, Congress chose to create new causes of

action for circumvention and for trafficking in circumvention

devices. Congress did not choose to create new property rights.

. . . Were we to interpret Congress's words in a way that

eliminated all balance and granted copyright owners carte

blanche authority to preclude all use, Congressional intent

would remain unrealized.

118

Yet, arguably, that is exactly what the Reimerdes decision does,

precisely because it focuses on enabling access alone, not

access for the purpose of violating one of the rights of the

just in cutting the wire or making a wire cutter. The Skylink

court focused on whether the person cutting the wire was going

to trespass once the cutting was done. In effect, the two courts

disagree on which of the options offered to the legislature in

the Farmers' Tale was actually enacted by Congress. Which court

is correct? The Skylink decision strikes me as sensible. It also

makes the statute constitutionally much more

defensible--something that the Skylink court does not consider.

But in the process, it has to rewrite the DMCA substantially.

One should not presume that it will be this interpretation that

will triumph.

119

SUMMING UP: EXAGGERATIONS,

HALF-TRUTHS, AND BIPOLAR DISORDERS

IN TECHNOLOGY POLICY

120

Let me return to the question with which I began the chapter.

For many critics of contemporary intellectual property law, the

DMCA is the very embodiment of all that is wrong. (I still

cherish a friend's account of British protesters outside the

American Embassy in London singing "D-M-C-A" to the tune of the

Village People's "YMCA" and holding up signs calling for the

law's repeal--to the great confusion of the diplomatic

personnel.) The critics conjure up a digital apocalypse--a world

of perfect control achieved through legally backed digital

fences, in which both speech and competition suffer, and where

citizens lose privacy, the privilege of fair use, and the right

to criticize popular culture rather than simply consume it. In

their view, the legal disaster is only exacerbated by bumbling

judges who do not understand the technology and who are easily

fooled by the doom-laden rhetoric of the content companies. The

DMCA's supporters, on the other hand, think criticisms of the

DMCA are overblown, that the dark tales of digital control are

either paranoid delusions or tendentious exaggerations, and that

far from being excessive, the DMCA's provisions are not

sufficient to control an epidemic of illicit copying. More

draconian intervention is needed. As for fair use, as I pointed

out before, many of the DMCA's supporters do not think fair use

is that important economically or culturally speaking. At best

it is a "loophole" that copyright owners should have the right

to close; certainly not an affirmative right of the public or a

reserved limitation on the original property grant from the

state.

121

Who is right? Obviously, I disagree profoundly with the DMCA's

supporters. I wrote this book partly to explain--using Jefferson

and Macaulay and the Sony case--what was wrong with their logic.

It would be both convenient and predictable for me to claim that

the DMCA is the intellectual property incarnation of the

Antichrist. But it would not be true. In fact, I would not even

put the DMCA in the top three of bad intellectual property

initiatives worldwide. And many of the fears conjured up about

it are indeed overblown.

122

Of course, the critics have a point. The DMCA is a very badly

drafted law. As I have tried to show here, its key provisions

were probably unnecessary and are, in my view, unconstitutional.

If coupled with a number of other legal "innovations" favored by

the content industry, the DMCA could play a very destructive

role. In general, in fact, the Farmers' Tale is fairly accurate

in describing both the origins of and the threats posed by the

DMCA. Yet the single largest of those threats--the idea that the

DMCA could be used to fence off large portions of the public

domain and to make the fair use provisions of the Copyright Act

essentially irrelevant--is still largely a threat rather than a

reality. In some cases, fair use rights are curtailed. But for

most citizens and for the majority of media, the DMCA has had

relatively little effect. Digital rights management (DRM)

certainly exists; indeed it is all around us. You can see that

every time you try to play a DVD bought in another part of the

world, open an Adobe eBook, or copy a song you have downloaded

from iTunes. But so far, the world of legally backed digital

rights management has not brought about the worst of the

dystopian consequences that some people, including me, feared

might result.

123

In many cases, citizens simply reject digital rights management.

They will not buy products that use it. Attempts to introduce it

into music CDs, for example, have been a resounding failure. In

other cases, DRM has not been used in ways that the critics

feared. There are genuine scandals, of course--cryptography

research has been chilled, the DMCA has been turned to

anticompetitive ends, and so on. It is also troubling to see

federal judges issuing injunctions not only against banned

material but also against those who link to the banned material.

Somehow the blithe reassurance that this is consistent with the

First Amendment fails to comfort one. But many of the evils

prophesied for the DMCA remain as just that: prophecies.

124

There are also entries on the positive side of the ledger. The

"safe-harbors" that the DMCA gave Internet service providers and

search services have been a vital and positive force in the

development of the Internet. It may even be true that in some

cases, such as iTunes, the DMCA did what its backers claimed it

would--encourage new provision of digital content by reassuring

the record companies that they could put their music online

surrounded by legally backed digital rights management.

(Notably, however, the trend is now going the other way.

Companies are coming to realize that many consumers prefer, and

will pay more for, unprotected MP3 files.)

125

Of course, depending on your view of the music industry, that

might seem like a mixed blessing. One might also wonder if the

same consumer benefits might have been produced with a much less

restrictive law. But with the exception of a few important

areas--such as cryptography research, where its effects are

reported to be severe--I would have to say that the criticisms

focus too much on the DMCA, to the exclusion of the rest of the

intellectual property landscape. Yes, the DMCA offers enormous

potential for abuse, particularly in conjunction with some other

developments in intellectual property that I will discuss later,

but much of the abuse has not yet happened. Yet even if it never

did happen, the DMCA has important lessons to teach us.

126

In this section I have tried to show how legal

rules--particularly intellectual property rules--define the

boundaries of legitimate competition. We used to assume that

this was principally the function of patent and trademark law,

less so of copyright. Of course, copyright would affect

competition in publishing and in the TV and movie industries,

but it hardly seemed central to competition policy in general.

But once courts and legislatures accepted that software is

copyrightable, that assessment changed. The levers and cogs of

the machines of the modern economy are forged out of ones and

zeros instead of steel and brass. In that situation, copyright

is central to the competition policy of a high-tech economy.

127

As the Apple case shows, our moral intuitions about competition

are going to be cloudier in the world of digital content and

cyberspace. The same is true of the law. Even in the material

world it can be hard to draw the line between the legitimate and

ruthless pursuit of commercial advantage and various forms of

unfair competition, antitrust violations, and so on. But in the

immaterial world, the boundaries are even harder to draw. Is

this the digital equivalent of trespass or legitimate passage on

a public road that runs through your property? As I pointed out

earlier, the constant analogies to physical property are likely

to conceal as much as they reveal. Is this virtuous competitive

imitation or illicit copying? We have strong, and by no means

coherent, moral and legal intuitions about the answers to such

questions. And our legal structure often gives us the raw

material to make a very good case for both sides of the

argument.

128

Into this already troubled situation, with a set of rules

designed for original expression in novels and poems being

applied to machines made of computer code, we add the DMCA and

its new rights of uncertain extent. Copyright had a well-

developed set of exceptions to deal with anticompetitive

behavior. Where the existing exceptions did not function, courts

tended to turn to fair use as the universal method for patching

the system up--the duct tape of the copyright system. Without an

evolving idea of fair use, copyright would overshoot its bounds

as it was applied to new technologies and new economic

conditions. Indeed that was the point of the Sony Axiom. The

DMCA threw this system into disarray, into a war of competing

metaphors.

129

The Skylink court sees monopolists being handed carte blanche to

abolish the restraints on their monopolies. Competition policy

demands that we construe the DMCA narrowly. The Reimerdes court

sees a virus masquerading as speech, a digital pandemic that

must be stopped at all costs by a draconian program of

electronic public health. Each proceeds to construe the statute

around the reality they have created. It is by no means certain

which metaphor will win the day, still less which resolution

will triumph in other countries that have passed versions of the

DMCA. International attitudes toward speech, competition, and

the necessary exceptions in a copyright system vary widely. Yet

backed by the story of the Internet Threat, the content

companies are already saying that we need to go further both

nationally and internationally--introducing more technology

mandates, requiring computers to have hardware that will only

play approved copyrighted versions, allowing content companies

to hack into private computers in search of material they think

is theirs, and so on. Remember the suggestion from the beginning

of the chapter, that all cars be assumed to be getaway vehicles

for the felonious filchers of vegetables, and thus that they

should be fitted with radio beacons, have the size of their

cargo space reduced, and so on? The Farmers' Tale continues to

evolve.

Chapter 6: I Got a Mashup

So far, I have talked about the root ideas of intellectual

property. I have talked about its history, about the way it

influences and is influenced by technology. I have talked about

its effects on free speech and on competition. Until now,

however, I have not described the way that it actually affects

culture. This chapter aims to rectify the omission, looking at

the way copyright law handles one specific form of cultural

creation--music. It turns out that some of the problems

identified in Chapters 4 and 5 are not simply the result of a

mismatch between old law and new technology, or the difficulties

posed in applying copyright to software, to machines made of

words. The same issues appear at the heart of a much older

cultural tradition.

This is the story of a song and of that song's history. But it

is also a story about property and race and art, about the way

the last hundred years, about the lines it draws, the boundaries

it sets, and the art it forbids.

Music is hard for copyright law to handle. If one had to

represent the image of creativity around which copyright law and

patent law, respectively, are built, patent law's model of

creativity would be a pyramid and copyright law's a fountain, or

even an explosion.

In patent law, the assumption is that technological development

converges. Two engineers from two different countries tend to

produce similar ways of catching mice or harnessing the power of

steam. There are a limited number of good ways of accomplishing

a technical task. In addition, technological progress is assumed

to be incremental. Each development builds on the ones behind

it. Based on this image, patent law makes a series of decisions

about what gets covered by property rights, for how long, how to

handle "subsequent improvements," and so on. Patent rights last

for a short time, not only to lower costs to consumers, but

because we want to build on the technology inventors have

created as soon as possible, without getting their permission.

Even during the patent term, subsequent "improvers" get their

own rights and can bargain with the original patent holder to

share the profits.

texts, with creative expression. Here the assumption is

(generally) that there are infinite possibilities, that two

writers will not converge on the same words, and that the next

generation of storytellers does not need to take the actual

"stuff" that copyright covers in order to make the next play or

novel. (It may be because of this image that so few policy

makers seem to worry that copyright now lasts for a very long

time.) Subsequent "improvements" of copyrighted material are

called derivative works, and without the rights holder's

permission, they are illegal. Again, the assumption seems to be

that you can just write your own book. Do not claim you need to

build on mine.

Of course, each of these pictures is a caricature. The reality

is more complex. Copyright can make this assumption more easily

because it does not cover ideas or facts--just their expression.

"Boy meets girl, falls in love, girl dies" is not supposed to be

owned. The novel Love Story is. It is assumed that I do not need

Erich Segal's copyrighted expression to write my own love story.

Even if literary creativity does converge around standard

genres, plots, and archetypes, it is assumed that those are in

the public domain, leaving future creators free to build their

own work without using material that is subject to copyright. We

could debate the truth of that matter for literature: the

expansion of copyright's ambit to cover plotlines and characters

makes it more questionable. Certainly many recognized forms of

creativity, such as the pastiche, the collage, the literary

biography, and the parody need extensive access to prior

copyrighted work. But regardless of how well we think the image

of individual creativity fits literature, it fits very poorly in

music where so much creativity is recognizably more collective

and additive, and where much of the raw material used by

subsequent creators is potentially covered by copyright.

So how does the accretive process of musical creativity fare in

the modern law and culture of copyright? How would the great

musical traditions of the twentieth century--jazz, soul, blues,

rock--have developed under today's copyright regime? Would they

have developed at all? How does the law apply to the new

musicians, remixers, and samplers who offer their work on the

Internet? Do the lines it draws fit with our ethics, our

traditions of free speech and commentary, our aesthetic

judgments? It would take a shelf of books to answer such

questions definitively. In this chapter, all I can do is suggest

some possibilities--using the history of a single song as my case

study.

-----------------------------------

On August 29th, 2005, a hurricane made landfall in Louisiana.

The forecasters called it "Hurricane Katrina," quickly shortened

to "Katrina" as its story took over the news. The New Orleans

levees failed. Soon the United States and then most of the world

was watching pictures of a flooded New Orleans, seeing pleading

citizens--mainly African-American--and a Keystone Cops response by

the Federal Emergency Management Agency. The stories from New

Orleans became more and more frightening. There were tales not

only of natural disaster--drownings, elderly patients trapped in

hospitals--but of a collapse of civilization: looting, murder and

rape, stores being broken into with impunity, rescue helicopters

fired upon, women and children sexually assaulted in the

convention center where many of the refugees huddled. Later, it

would turn out that many, perhaps most, of these reports were

untrue, but one would not have guessed that from the news

coverage.

The television played certain images over and over again.

People--again, mainly African-Americans--were portrayed breaking

into stores, pleading from rooftops, or later, when help still

had not arrived, angrily gesturing and shouting obscenities at

the camera.

As the disaster unfolded in slow motion, celebrities began

appearing in televised appeals to raise money for those who had

been affected by the storm. Kanye West, the hip hop musician,

was one of them. Appearing on NBC on September 2, with the

comedian Mike Myers, West started out seeming quietly upset.

Finally, he exploded.

I hate the way they portray us in the media. You see a black

family, it says, "They're looting." You see a white family, it

says, "They're looking for food." And, you know, it's been five

days [waiting for federal help] because most of the people are

black. . . . So anybody out there that wants to do anything that

we can help--with the way America is set up to help the poor, the

black people, the less well-off, as slow as possible. I mean,

the Red Cross is doing everything they can. We already realize a

lot of people that could help are at war right now, fighting

another way--and they've given them permission to go down and

shoot us!

Myers, who, according to the Washington Post, "looked like a guy

who stopped on the tarmac to tie his shoe and got hit in the

back with the 8:30 to LaGuardia," filled in with some comments

about the possible effect of the storm on the willingness of

Louisiana citizens to live in the area in the future. Then he

turned back to West, who uttered the line that came to epitomize

Katrina for many people around the world, and to infuriate a

large number of others. "George Bush doesn't care about black

people!" Myers, the Post wrote, "now look[ed] like the 8:30 to

LaGuardia turned around and caught him square between the

eyes."1 In truth, he did appear even more stunned than before,

something I would not have thought possible.

In Houston, Micah Nickerson and Damien Randle were volunteering

to help New Orleans evacuees at the Astrodome and Houston

Convention Center during the weekend of September 3. They, too,

were incensed both by the slowness of the federal response to

the disaster and by the portrayal of the evacuees in the media.

But Mr. Nickerson and Mr. Randle were not just volunteers, they

were also a hip-hop duo called "The Legendary K.O." What better

way to express their outrage than through their art? An article

in the New York Times described their response.

"When they got to Houston, people were just seeing for the

first time how they were portrayed in the media," said Damien

Randle, 31, a financial adviser and one half of the Legendary

K.O. "It was so upsetting for them to be up on a roof for two

days, with their kids in soiled diapers, and then see themselves

portrayed as looters." In response, Mr. Randle and his partner,

Micah Nickerson, wrote a rap based on the stories of the people

they were helping. On Sept. 6, Mr. Nickerson sent Mr. Randle an

instant message containing a music file and one verse, recorded

on his home computer. Mr. Randle recorded an additional verse

and sent it back, and 15 minutes later it was up on their Web

site: www.k-otix.com.2

The song was called "George Bush Doesn't Care About Black

People" (also referred to as "George Bush Doesn't Like Black

People"). Appropriately, given that Mr. West was the one to come

up with the phrase, the song was built around Mr. West's "Gold

Digger." Much of the melody was sampled directly from the

recording of that song. Yet the words were very different. Where

"Gold Digger" is about a predatory, sensual, and materialist

woman who "take[s] my money when I'm in need" and is a "triflin'

friend indeed," The Legendary K.O.'s song is a lyrical and

profane condemnation of the response to Katrina by both the

government and the media. Here is a sample:

Five days in this motherf__ attic

Can't use the cellphone I keep getting static

Dying 'cause they lying instead of telling us the truth

Other day the helicopters got my neighbors off the roof

Screwed 'cause they say they coming back for us too

That was three days ago, I don't see no rescue

See a man's gotta do what a man's gotta do

Since God made the path that I'm trying to walk through

Swam to the store, tryin' to look for food

Corner store's kinda flooded so I broke my way through

I got what I could but before I got through

News say the police shot a black man trying to loot

(Who!?) Don't like black people

George Bush don't like black people

This chapter is the story of that song. "George Bush Doesn't

Care About Black People" is the end (for the moment) of a line

of musical borrowing. That borrowing extends far beyond Kanye

West's song "Gold Digger." "Gold Digger" is memorable largely

because it in turn borrows from an even older song, a very

famous one written half a century before and hailed by many as

the birth of soul music. It is in the origins of that song that

we will start the trail.

I GOT A WOMAN

In 1955, Ray Charles Robinson, better known as Ray Charles,

released a song called "I Got a Woman." It was a defining moment

in Charles's musical development. Early in his career he had

unashamedly modeled himself on Nat King Cole.

I knew back then that Nat Cole was bigger than ever. Whites

could relate to him because he dealt with material they

understood, and he did so with great feeling. Funny thing, but

during all these years I was imitating Nat Cole, I never thought

twice about it, never felt bad about copying the cat's licks. To

me it was practically a science. I worked at it, I enjoyed it, I

was proud of it, and I loved doing it. He was a guy everyone

admired, and it just made sense to me, musical and commercial

sense, to study his technique. It was something like when a

young lawyer--just out of school--respects an older lawyer. He

tries to get inside his mind, he studies to see how he writes up

all his cases, and he's going to sound a whole lot like the

older man--at least till he figures out how to get his own shit

together. Today I hear some singers who I think sound like me.

Joe Cocker, for instance. Man, I know that cat must sleep with

my records. But I don't mind. I'm flattered; I understand. After

all, I did the same thing.3

In the early 50s Charles decided that he needed to move away

from Cole's style and find his own sound, "sink, swim or die."

But as with any musician, "his own sound" was the product of a

number of musical traditions--blues and gospel particularly. It

is out of those traditions that "I Got a Woman" emerged; indeed

it is that combination that causes it to be identified as one of

the birthplaces of soul music.

According to the overwhelming majority of sources, "I Got a

Woman" stems from a fairly overt piece of musical

borrowing--Charles reworded the hymn "Jesus Is All the World to

Me"--sometimes referred to as "My Jesus Is All the World to Me."

Musically, soul denotes styles performed by and for black

audiences according to past musical practices reinterpreted and

redefined. During its development, three performers played

significant roles in shaping its sound, messages, and

performance practice: Ray Charles, James Brown, and Aretha

Franklin. If one can pinpoint a moment when gospel and blues

began to merge into a secular version of gospel song, it was in

1954 when Ray Charles recorded "My Jesus Is All the World to

Me," changing its text to "I Got A Woman."4

That story is repeated in the biography on Charles's Web site.

"Charles reworded the gospel tune 'Jesus Is All the World to Me'

adding deep church inflections to the secular rhythms of the

nightclubs, and the world was never the same."5 Michael Lydon,

Charles's most impressive biographer, simply reports that "Jesus

Is All the World to Me" is described as the song's origin in

another published source,6 and this origin is cited repeatedly

elsewhere in books, newspaper articles, and online,7 though the

most detailed accounts also mention Renald Richard, Charles's

trumpeter, who is credited with co-writing the song.8

Section 107, and thus shifts the balance of power that the