AU, Copyright Advocacy and Fair Use Education 1995-2015

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

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

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