Rip, Mix, Burn: The Politics of Peer to Peer and Copyright Law
firstmonday.org
by Kathy Bowrey and Matthew Rimmer
abstract:
Whereas Lessig's recent work engages with questions of culture and creativity in society, this paper looks at the role of culture and creativity in the law. The paper evaluates the Napster, DeCSS, Felten and Sklyarov litigation in terms of the new social, legal, economic and cultural relations being produced. This involves a deep discussion of law's economic relations, and the implications of this for litigation strategy. The paper concludes with a critique of recent attempts to define copyright law in terms of first amendment rights and communicative freedom.
quotes:
In finding Napster responsible for the copyright infringements mediated via its databases, copyright took a stand not just against Napster and its free-riding users, but against the presumption of a technology standing outside of legal control. The law had a productive role to play in the development of the digital economy, and a disciplinary role with regard to unruly digital practices.
[However], Technological innovation, it was hoped, would stay ahead of the law and avoid copyright's clutches through the development of more decentralised and anonymous, globally disseminated, file distribution technologies. Neither national law nor any one organization could manage to control these chaotic networks for sharing files.
Predictions include a diminishing of the space for creative cultural exchanges and free scientific communications, greater surveillance of our cultural consumption, a stifling of technological innovation and the retardation of the digital economy. However the methodology takes a different view of the politics of the dispute, out of concern for the way in which the law's critics, in confronting the politics of the issue, are constructing the relationship between law and society.
Twentieth century expansion of copyright law, justified in terms of keeping pace with technological change, is characterised as making too many ad hoc concessions to owners, with an improper level of attention to user rights. . . . The solution to this "corruption" is really to try and assert the superiority of common law over the Legislature. The common law, as represented by their particular reading of the founders' philosophy and judgements that favour a "fair use" perspective, is less affected by money and politics. It is thus represented as a purer source of copyright law.
Copyright is supposed to provide "economic incentives" for cultural production. But in keeping with this broad justification the legislature is instructed to balance owner and user interests, in furtherance of the best interests of the development of the new cultural medium and access to the media. However the legislature is without the benefit of an established way of reading the cultural and economic dimensions associated with such new practices. In this context it is unsurprising that imaginative representations of the threat to capital in the form of visions of digital pirates or of an unenterprising colossus, flesh out the picture. Lawyers and legislators love to rescue the "victim".
Peer to peer is a class of computer applications that turn Internet-connected PCs into resources other Internet-connected PCs can access. Before peer to peer, if you wanted to serve files from your PC you needed a permanent IP address, domain name, registration with DNS servers and properly configured Web server software on the PC. With peer to peer technology your computer storage, cycles and content are made available because the PC via modem becomes a node that operates outside the DNS system, having significant autonomy from central servers with the ability to be accessed by other users.
Napster's own investment in digital download technologies and distribution models is completely discounted as a relevant contribution to the music industry. It was not the "right kind" of contribution. The judicial view is that copyright law should serve a particular culture of expectation: the established industry's plans for development of the market.
Justice Patel found that the defendants had not established or met their burden of proving that they were entitled to the affirmative defence of fair use [39]. Most of the files moved through MusicShare software were infringing copies and Napster was well aware of that fact. Napster was a means for distributing pirated copies, not a mechanism for exercising fair use rights. Sampling, (whereby users try before they buy, akin to accessing an in-store CD listening post), space-shifting, (where, for sake of convenience, users would retrieve copies of songs they already own for use on more portable media) and listening to authorised (as opposed to infringing) new works were judged not substantial non-infringing uses of Napster.
David Boies: "The law is designed to strike a balance between the interests of copyright holders on the one hand and the interests of consumers on the other. .... We never would have passed copyright laws in this country unless we believed they helped consumers by generating creative activity. We know there needs to be a fair return to do that but we don't want excessive return, because the ultimate beneficiary is designed to be the consumer"
In enforcing rights the pre-eminent historical concern has been a social one- maintaining openness with regard to new technological developments: "the balance rests on the side of permitting new technology, not stifling it" [49]. Fair use, as elaborated in Sony Corporation Of America v University City Studios Inc. [50] makes a space for new, potentially infringing, technologies. A technology should be permitted so long as it is capable of sustaining substantial non-infringing uses. Napster was capable of a number of non-infringing, non-commercial uses: listening to authorised works; sampling, which it was argued had the potential to increase CD sales; and space-shifting, such as downloading MP3 files at the office, of music you already own at home. Napster was ignorant of the content moved via its system, and should not be required to change the technology to aid the recording company's enforcement of rights.
under the DMCA the copyrightable work, once encrypted, is housed within a protective cocoon. It is the cocoon that does not allow for fair use in the ordinary sense [73], or other forms of dealings with the work, where decryption is required to enable access.
§1201(g) permits encryption research aimed at identifying flaws in encryption technology if the research is conducted to advance the state of knowledge in the field. It is not yet clear whether those seeking to rely on the provision only have to fulfil a "genuine purpose" test, or whether the provision is also "status driven". Does research that "advance(s) the state of knowledge of the field" have to come from an acknowledged research institute? Felten, as a reputable researcher with established links with an elite educational institution had no problem passing either genuine purpose or status tests. It seems more doubtful that contributors to 2600, where postings expose flaws in encryption, would be entitled to the same protection under §1201(g), because of the different social relations their communications enable [88]. If this is correct, then it seems the fair use exception establishes the majority as non-persons with regard to fair use, but privileges the few that limit their communications and activities to a "recognized" forum. You have to be a card-carrying member of the establishment, and confine your talk to those circles, if you want to break the code.
Senior Democrat Congressman Fritz Hollings has introduced the Consumer Broadband and Digital Television Promotion Act of 2002 into Congress [91]. Essentially, the bill would prohibit the sale or distribution of any technology unless it featured copy-protection standards set by the U.S. government
Copyright owners have been targeting hackers on purpose because they are pushing a wider public agenda about stopping piracy. Furthermore, they are confident that their opponents have limited scope to make arguments about freedom of speech. The long-term strategy is for copyright owners to win favourable interpretations of the DMCA, which they can later assert against more formidable opponents - such as the computer software and consumer electronics industries.
It is possible to recreate a digital quotation of a literary work, but it is not so obvious how one is to reproduce more digitally sophisticated forms of expression such as artistic works, sound recordings or films. Fair use did not traditionally require "re-creation" of an original effort, although this process was certainly permitted. Fair use permitted duplication of certain portions for appropriate purposes. Duplication is now denied, regardless of the amount taken or reason for the taking, unless the user falls within one of the "special status" exceptions.
It could be argued that, in spite of the much vaunted ideal of technological neutrality, the courts are discriminating between different forms of media. Judges are relatively comfortable in considering matters of freedom of speech in the context of the act of publishing recognised literary works. However, they display a much greater degree of hesitancy in applying constitutional notions of freedom of speech to exclusively digital media and modes of distribution - reflecting deep seated doubts as to whether computer code is equivalent to "literary" expression. |
