Lexmark: The Meaning of "access" revisited...

Apparently, the recent ruling in the Lexmark case involves "access" issues. Ed Felten has a nice write-up over at www.freedom-to-tinker.com.

To my knowledge, the term "access" isn't defined in the US Copyright Code... This is a problem.

The only reasonable definition I can come up with is that "access" (within the context of Copyright) must mean the rendering of a protected work into a form that can be directly perceived by the consumer. This definition would still allow technology like CSS to be considered a "protection measure" under the DMCA, and yet prevent DMCA abuses a la Lexmark.

It could also affect the copyright landscape with respect to computer software (executable code, not human-readable source code). Oh well, you can't win them all...

Bring Back Copyright Registrations...

Background:

The Copyright Barons have spent years and untold millions of dollars trying to prevent consumers from copying digital content. Since copying is a fundamental physical requirement for modern consumer electronics, what this really means is that they're spending all that money trying to convince (or bully!) manufacturers into creating modern electronic devices that don't function as modern electronic devices. It's kind of perverse, like trying to turn a silk purse into a sows' ear instead of the other way around.

My favorite example of this is CSS, the DVD Copy Control Associations' Content Scrambling System. The DVD CCA describes CSS as a copy-protection measure that purportedly prevents unauthorized copying. Unfortunately, this is not an accurate description of what CSS does. CSS was not designed to prevent copying. CSS was developed for the explicit purpose of preventing manufacturers from creating devices that have "unapproved features" (e.g. I don't like that feature. Remove it or I revoke your CSS license). The real problem facing the Copyright Barons today, which CSS doesn't address, is re-distribution.

What does this have to do with Copyright Registrations?

I think the reason why the copyright Barons have been focusing on copy prevention is because they don't know how to prevent re-distribution (a.k.a. sharing). Since there's no practical way for them to prevent you from giving a video (or cassette) tape to your friends, the only way they can stop it from happening is to make the act of copying as difficult as possible.

Now that everything's going digital there is no way to prevent copying. Even Orin Hatch knows this. And since half of the wired households in the US have broadband, we now have millions of potential publishers. The Copyright Barons are afraid of this, and justly so...

Right now, the Copyright Barons are fighting a losing battle between computers and lawyers. They are losing because computers are faster than lawyers, and computer technology evolves faster than the law... It's like giving your teenager a Ferrari and giving the cops a Yugo. The results are predictable, and not very pretty. There is better way, and it's called...

Automatic Digital Copyright Registration and Detection.

Before 1976, every publisher was required to register copyrights with the Copyright Office. The Copyright Act of 1976 changed this requirement so that everything had automatic copyright protection. No paperwork, no bureaucracy, all nice and streamlined.

This looked like a good idea at the time, but this was 1976 and the personal computer didn't exist. The PC revolution changed a lot of things: Joe Sixpack has a supercomputer on his desk, and for less than $50/month Joe gets to use this giant digital copying machine called the Internet.

Maybe eliminating copyright registrations wasn't the best idea after all... Without some form of registration, there is no process for determining what's been copyrighted and who owns that copyright. And, more importantly, there is absolutely no way to exploit the power of computers to make things more efficient.

All (or at least some of) the efforts spent trying to prevent "copying" (e.g. encryption, watermarking, etc... ) should have been spent on finding ways to automate copyright registrations. Copying isn't the problem anyway, it's re-distribution.

We should be using all of this encryption and watermarking technology to create unique digital signatures for every published digital work and have those signatures registered with the Copyright Office over the Internet.

Those registered signatures need to be available over the Internet so that any consumer electronics device can automatically determine whether or not they're about to publish (or download) something they're not supposed to...

This takes the human element (almost) completely out of the loop. This not only speeds up the process, but it also reduces the associated costs (legal fees). I see this as a win-win scenario for both sides of the Copyright equation (consumers and distributors). This is also the only scenario I can see where the lawyers don't win.

In order for this to work as quickly as possible, the methods for creating these signatures should be available to all software developers, just like any other recognized technical standard... and there should be no economic or legal barriers that would prevent this technology from being deployed world-wide.

Let's be honest, the next great innovation in digital publishing is going to be created by a college student... not a Fortune 100 corporation. And college students can't afford expensive licensing fees. If you want to make this technology available to cutting-edge developers, you need to make it available at a price they can afford.

Free sounds good to me...

Two Quick Thoughts

Thought #1

Does re-coding or re-formatting a protected work onto different media or into a different format constitute a "derivative work" under the Copyright Act? I'm no copyright scholar, but I think the answer is no. I may expand on this later if it turns out to be important.

Thought #2

I think we've been stupid, very very stupid. The DVD CCA (Copy Control Association) has been very effective in portraying its Content Scrambling System as a copy protection mechanism. To my knowledge, no one has ever challenged this in court. As has been mentioned here and in many other places, it is not necessary to de-scramble the content to copy it.

Every DVD player in existence (past, present, and future) must copy the content to operate. CSS is not a copy protection mechanism. CSS is a way for the DVD CCA to control the design of consumer electronic devices and to reduce competition. CSS is also a mechanism to insure that the DVD CCA gets paid by every device manufacturer that uses the technology.

Here's the Ten Billion Dollar Question:

If CSS isn't a copy protection mechanism, how then does it qualify as a "protection measure" under the DMCA?

Copy Rights and Consumer Expectations

I have no problem recognizing that copyright holders have a legitimate business interest in enforcing their exclusive rights with respect to distribution and derivative works. The problem, as I see it, is that the current Copyright Barons have a rather expansive view of what their exclusive rights really are and would prefer to completely ignore consumers' fair use rights. This goes far beyond Skylink and DeCSS.

The extreme position that many Copyright Barons seem to be operating from was best expressed in a 2002 CableWorld interview with Jamie Kellner, the chairman and CEO of Turner Broadcasting. When Kellner was asked why digital PVR's were bad for the industry, this was his response:

Because of the ad skips.... It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming.

Contracts? I don't think so...

I can't speak for anyone else, but I don't seem to remember signing a contract with Turner Broadcasting. To the best of my knowledge, I don't have a legal obligation to view those commercials. I think Kellner's just confused because he's been selling our eyeballs to TV advertisers for so long that he's forgotten that he doesn't have any legal rights to our eyeballs.

This is old stuff, by the way, but the reason I'm bringing this up is because it goes directly to the nature of the agreement between copyright holders and consumers. Consumers have certain expectations about fair use that have been held up in court, and it's my intention to make sure that those fair-use rights do not get reduced.

For instance, the Betamax decision confirmed that we are allowed to space-shift and time-shift any TV programming that we are authorized to access. It's also well established that using a tape recorder to play your music in your car is fair use. You are allowed to take your music and record it on other media, and it shouldn't matter whether you're talking about vinyl to cassette tape, or CD to mp3.

Skylink goes a little further than the Betamax decision and says that there is no infringement, and no DMCA liability, if you aren't doing anything that allows third-parties to have unauthorized access to a protected work.

The best example I can think of right now is HBO. If you're an HBO subscriber and you record an episode of Sex and the City, it doesn't appear that there is any copyright infringement if you share that copy with another HBO subscriber. You aren't doing anything that would provide unauthorized access to HBO programming because both parties are HBO subscribers. Copyright law should be blind to how you made the recording, whether it be with your VCR or your Tivo.

This won't, however, prevent you from getting sued. It's quite clear from Kellner's comments that the Copyright Barons and the consumers aren't on the same page and, unfortunately, they're the ones who can afford to send lobbyists to Congress.

More on Copying and Authorized Access

I just found the case that makes my point about copying being a required element of "accessing" a digital work. It's MAI v. Peak (9th Cir. 1993). Here's a quote from the ruling courtesy of digital-law-online.info

We have found no case which specifically holds that the copying of software into RAM creates a “copy” under the Copyright Act. However, it is generally accepted that the loading of software into a computer constitutes the creation of a copy under the Copyright Act. We recognize that these authorities are somewhat troubling since they do not specify that a copy is created regardless of whether the software is loaded into the RAM, the hard disk or the read only memory (“ROM”). However, since we find that the copy created in the RAM can be “perceived, reproduced, or otherwise communicated,” we hold that the loading of software into the RAM creates a copy under the Copyright Act.

Taken together with the Skylink test, it is clear (at least to me) that consumers are authorized to copy digital works that have been obtained legitimately. Here's the logic:

1. The Skylink decision makes it perfectly clear that copyright holders cannot withhold any rights that would prohibit a consumer from accessing a work that has been obtained legitimately.
2. MAI v. Peak, makes it perfectly clear that the act of merely loading a digital work into RAM constitutes a copy under the Copyright Act.

It doesn't matter whether the copying is done in your DVD player, CD player, or your desktop computer, copying is a required element of "accessing" a digital work and existing case-law establishes the precedent.

If you are authorized to access a digital work, then you are automatically authorized to copy it. Period.

There's also this lovely quote from the congressional record...

Congress has long recognized that it is necessary to make incidental copies of digital works in order to use them on computers. Programs or data must be transferred from a floppy disk to a hard disk or from a hard disk into RAM as a necessary step in their use. Modern operating systems swap data between RAM and hard disk to use the computer memory more efficiently. Given its purpose, it is not the intent of this bill to have the incidental copies made by the user of digital work be counted more than once in computing the total retail value of the infringing reproductions.

Would you guess Orin Hatch said this?