“If nature has made any one thing less susceptible than all
others of exclusive property, it is the action of the thinking
power called an idea, which an individual may exclusively
possess as long as he keeps it to himself; but the moment it is
divulged, it forces itself into the possession of every one
,
and
the receiver cannot dispossess himself of it. Its peculiar
character, too, is that no one possesses the less, because
every other possesses the whole of it. He who receives an
idea from me, receives instructions himself without lessening
mine; as he who lights his taper at mine, receives light
without darkening me. That ideas should be freely spread
from one to another over the globe, for the moral and mutual
instruction of man, and improvement of his condition, seems
to have been peculiarly and benevolently designed by
nature . . .”
Thomas Jefferson
Non-exclusionary
The Fundamental Mechanism: A
Time-limited Monopoly
US Constitution, Article 1, §8:
“The Congress shall have the power ...
To promote the Progress of Science and the
Useful Arts, by securing for limited Times to
authors
and
inventors
the exclusive Right
to their respective
Writings
and
Copyright as a Crime
Copyright was not a criminal matter until 1897
Max punishment was 1 year in prison and $1000
Things stayed that way until 1976
Congress enacted a series of laws that increased
penalties
Motivated by promptings from RIAA and MPAA
Copyright holders sue for minimum statutory damages
of $750 per infringement.
By 1992, conviction could result in 10-year prison
term and stiff fines
But only if the infringement was done “for the purpose
of commercial advantage or private financial gain”
Criminal Intent Changed in 1997
The Internet was growing rapidly, and the
“worry” was that it would be haven for pirates.
MIT Bulletin Board case (1993)
Dept of Justice lost that case due to current
copyright law (1995)
In 1997, Congress passed the No Electronic
Theft (NET) Act.
Closed the loophole demonstrated by MIT bulletin
board
Criminalized any unauthorized copying with retail
© Copyright on one slide
Covers Original work of authorship, fixed in a tangible medium Covers entire work
Gives the author the following exclusive rights To reproduce the work
To prepare derivative works To distribute the work
To perform and display the work publicly
Lasts for the life of the author + 70 yrs, or 95 yrs from publication (for a corporation)
Automatic since 1978 – works are “born copyright”
Ignorance is no defense against copyright infringement. (Copyright is a strict liability regime.)
Abridged by: copying (literal and non-literal) Legally avoided by: independent creation
© Copyright on one slide
Covers Original work of authorship, fixed in a tangible medium Covers entire work
Gives the author the following exclusive rights To reproduce the work
To prepare derivative works To distribute the work
To perform and display the work publicly
Lasts for the life of the author + 70 yrs, or 95 yrs from publication (for a corporation)
Automatic since 1978 – works are “born copyright”
Ignorance is no defense against copyright infringement. (Copyright is a strict liability regime.)
Abridged by: copying (literal and non-literal) Legally avoided by: independent creation
© Copyright on one slide
Covers Original work of authorship, fixed in a tangible medium Covers entire work
Gives the author the following exclusive rights To reproduce the work
To prepare derivative works To distribute the work
To perform and display the work publicly
Lasts for the life of the author + 70 yrs, or 95 yrs from publication (for a corporation)
Automatic since 1978 – works are “born copyright”
Ignorance is no defense against copyright infringement. (Copyright is a strict liability regime.)
Abridged by: copying (literal and non-literal) Legally avoided by: independent creation
Increasing duration of copyright
Year enacted Max copyright term
1790 28 years (14 + 14 renewal) 1831 42
1909 56 1962 59 1965 61 1967 62 1968 63 1969 64 1970 65 1971 66 1972 68 1974 70
Fair Use
Nature of the use
Parody, education, criticism
Rip-off
Nature of the work
Fact or creative?
Amount of the work used
Impact on potential market for the work
The newly created work is not a substitute
The Story of Napster
Does not begin with Shawn Fanning
It begins in the dark ages of the late 1970s
where German audio engineers wanted to see
if they could send tiny music over phone lines
The student, Karlheinz Brandenburg devoted
his doctoral thesis to audio compression (that
would later become known as MP3).
By 1991, the engineers had enough resources
to perfect the MP3. They were all thinking
telephone, but the Internet would soon
Nobody Saw it Coming
Nobody in the record industry had a clue any of
this was going on; they didn’t know MP3 existed,
let alone that it contained no copy protection.
They didn’t realize how fast the internet would
grow. No one saw it coming that fast.
As the 1990s wore on, and the internet started
to blow up, the MP3 slowly turned into an
underground hit. The dam broke in 1997 when
Michael Robertson created mp3.com.
The media started to notice when “MP3”
The Digital Moment
Napster went away, but file sharing did not.
Everyone embraced the transformative potential
of digital technology
More significant was the rise of networks
The relationship between digitization and
networking collapsed the distinctions among
three formerly distinct processes:
gaining access to a work
using (“reading”) a work
copying a work
The Digital Millennium Copyright Act (DMCA)
The enactment of the DMCA gave the content
industries the security they were seeking
They could set and enforce any restrictions they
chose on access and use
The DMCA amendment:
lets copyright holders be copyright cops
forbids any circumvention of electronic locks that
regulate access to copyrighted material.
puts the power to regulate copying in the hands of
engineers and the companies that employ them –
upending more than 200 years of copyright law.
takes the decision making power away from
“The Copyright Wars”
In March 1997, the DVD hit the market
It was slow to catch on; DVDs were protected by a content
scrambling system (CSS), but CSS did not prevent copying of
DVDs
Amateurs posted a CSS decryption program (DeCSS) on the
Internet; it is useless without a DVD in hand. Clearly fair use,
but the courts agreed with MPAA.
The spring and summer of 2000 saw an explosion of
Internet-related litigation
MP3.com, Robertson’s jukebox that allowed streaming
Napster
iCrave TV
The War Metaphohr
This war metaphor is not about a conflict for
survival of a people or society, even if they are
wars of survival for certain businesses or, more
accurately, business models
In a talk at Stanford, Jack Valenti asked a
student if what he did was stealing. The
student responded, “Yes, but everyone does it.”
Valenti asked his hosts, “What kind of moral
That is the question…
What kind of moral platform will sustain our
kids when their ordinary behavior is deemed
criminal?
Who will they become?
What other crimes to them will seem natural?
Valenti asked this question to Congress to
motivate them to wage a war against “piracy.”
What if this war against “piracy” as we
currently conceive of it cannot be won?