A few hours ago I stopped by attorney Ray Beckerman's blog and found there the prepared statement of musician John Perry Barlow. The statement offers a glimpse of testimony he is prepared to offer in the case of Sony BMG Music Entertainment v. Tenenbaum, a theatrical production whose last act promises to teach us something about the constitutionality of tough statutory damages for copyright infringement.
Barlow is famous as lyricist for the Grateful Dead, but notable for cyberlaw followers as the author of The Economy of Ideas: Selling Wine Without Bottles on the Global Net, his argument against the application of copyright law to the Internet, and as co-founder of the Electronic Frontier Foundation.
The Economy of Ideas was written in 1992-93. If you have never read it or, like me, you haven't read it for over a decade, you really owe it to yourself to read this essay. Set aside the fact that Barlow is just hammering away at the recording industry. Read the essay for what he is saying about the promise of digital technologies. Ideas about the attention economy, the importance of relationships and the unimportance of digital objects and copying, ideas about monetizing information through personalization, point of view, and authority, Barlow had it all down in 1992. So much of what has been written about blogs and social media, Web 2.0, etc., draws from the ideas in this essay. I never see Barlow credited with these ideas, though.
I also went back and read another period piece, Prof. Pamela Samuelson's 1993 The Copyright Grab, her warning to the general public that the federal government and large copyright owners -- in order to pave the way for digital distribution of their property -- was on the verge of turning over to the copyright owners a large measure of the public's right to share and use copyrighted content. Prof. Samuelson called the plan a "maximalist agenda" for copyright owners. To her way of thinking the agenda had eight action items (nearly all of which found their way into law in the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in various sections of Titles 5, 17, 28 and 35 U.S. Code)), which were:
- Give copyright owners control over every use of copyrighted works in digital form, including fleeting RAM copies.
- Give copyright owners control over every transmission of works in digital form.
- Eliminate fair-use rights whenever a use might be licensed.
- Deprive the public of the "first sale" rights it has long enjoyed in the print world.
- Attach copyright management information to digital copies of a work.
- Protect every digital copy of every work technologically and make illegal any attempt to circumvent that protection.
- Force online service providers to become copyright police.
- Teach the new copyright rules of the road to children throughout their years at school.
What is interesting to me is that, DMCA notwithstanding, many of the points in Prof. Samuelson's copyright owner agenda continue to be fresh and raw today, unsettled topics of great interest and debate. Can the president give the Queen an iPod loaded with music? Did the cable company make infringing buffer copies of television programs in the Cablevision remote DVR case? Can Amazon's Kindle read a book aloud? To what extent should information intermediaries (ISPs, Google, YouTube, universities) serve as copyright police?
The problem today is the failure to implement item #8 on Prof. Samuelson's copyright owner agenda. Congress did everything it could do for the copyright-dependent industries, but the belief remained widespread among the public that copying digital files -- especially files containing music -- is, if not entirely lawful, no more than malum prohibitum. Copyright owners saw this problem coming but so far have not been able to solve it. The point is made in another (and I promise my final) document from pre-DMCA days, the so-called White Paper, the Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights. This is the document that Prof. Samuelson derided in the The Copyright Grab. Policymakers and industry clearly anticipated the need for a public education program to stop information users from doing what they were naturally inclined, and technologically enabled, to do: regard themselves as owners of digital information, free to use and distribute as they wished. The problem is, copyright owners failed this task.
In the White Paper's discussion of the need for public education on the new copyright rules, the authors wrote:
It is not only intellectual property law that presents complexities for the NII user. The underlying information technology is also difficult to understand, and it is constantly evolving and presenting users with new capabilities. Just learning about these capabilities and how to use them is difficult enough for users. It is also difficult.for users to understand that they may not be able to always use all of the new facilities to copy, perform and use works that the technology allows.
Overcoming these barriers is also difficult because the market for copyrighted works is complex with many participants. Individual users generally do not appreciate the impact that an unauthorized use of a protected work can have in that market. This is especially true when the unauthorized use has an immediate benefit to the user, and no immediately visible harm to others. How tempting it is to simply make yourself a copy of a piece of shareware and not pay its author, or to make just one copy of a sound recording that someone has put up on a bulletin board. What harm could there be? However, in Cyberspace, where reproduction and dissemination are so easy and quick, even one unauthorized reproduction -- onto a server for instance -- can have a substantial ripple effect that could even supplant the market for legitimate copies of the work.
Just think what happens to the shareware author’s expectation of a profit or the sales of a commercial sound recording if ten thousand individuals make such seemingly harmless personal copies.
...
Initially, respect for copyright protection needs to be highlighted -- intellectual property needs to become a "household word." This element will work in conjunction with the goal of public awareness, but should focus more on the importance of intellectual property, and not simply on its existence. Second, a comprehensive program needs to be developed to target different educational levels. Not only must a curricula be developed and made available for all educational levels, but also a methodology must be established for the continual reinforcement of the importance of intellectual property throughout the lifelong learning of every NII user.
That didn't happen, did it? The laws against unauthorized copyright are tough (draconian some might say), vast public and private resources have been marshaled against information "pirates," Washington is pushing even now for tougher laws and greater cooperation abroad, and yet file-sharing is rampant. And no amount of litigation from the recording industry, it seems, will be able to dislodge the general public's indifference to the copyright law. Nearly sixteen years after Barlow's views about music and copyright were roadkill on the Information Superhighway, he's popped up again, wagging his finger at the car that hit him:
I will explain that the online world presents us with a "gift economy," where no moral blameworthiness attaches to non-commercial sharing, and I will explain why this does not threaten the music industry.
The case is Sony BMG Music Entertainment et al. v. Tenenbaum, No. 03-cv-11661 (D. Mass.)
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I am a huge fan of Barlow's article. It was very influential on my thinking in the mid-1990s. I assign it to students when I teach Copyright Law. Eric.
Posted by: Eric Goldman | April 14, 2009 at 08:24 PM