Copywrong?

Eben Moglen, Columbia University law professor, counsel to the Free Software Foundation

The Library report carefully summarizes the public debate it solicited, while equally carefully failing to respond to any of the real questions that debate raised. The report notes that content is being tied to specific devices for reading (licensed DVD players, proprietary e-book readers), and says that even within the incredibly narrow limits that they recognize as cause for concern -- interference with their narrow definition of the first sale rule -- this trend is cause for concern. But despite all the concern, of course, no legislation is presently necessary.

Later, after the problem has ceased to be of concern because it has become unchallengeably embedded in the technology of society, and the "campaign contributors" have achieved the control over culture that they bought congressmen in 1998 to achieve, the Library will presumably begin lamenting the situation it was the Library's statutory responsibility to prevent.

It is highly significant that the report constitutes a smack in the face to all the professional librarians' associations in the United States which, as the report avoids directly saying, uniformly backed the positions that the Library is rejecting. This report now positions the "Library of Congress" not as a library like other libraries, but as a shill for the "campaign contributors" whose bribery of legislators brought about the disgraceful statute with which this "Library," alone among libraries, cannot find anything wrong.

The report does not note that the criminal penalties of the DMCA -- enlisted in support of the very form of content-tying (e-books) about which the Library expresses concern -- have now resulted in the arrest of a scholar [Dmitry Sklyarov] for explaining how one e-book encryption system works, in a technical paper based on Ph.D. research publicly presented. Presumably the Library does not regard the arrest of authors for disseminating academic information under the authority of this statute as a reason why any legislative change should be required.

Cary Sherman, senior executive vice president and general counsel of the Recording Industry Association of America.

We're gratified that the Copyright Office has given us much of the guidance on these issues that we requested in our petitions to the Copyright Office concerning the licensing of musical works for subscription services.

The conclusions of the Copyright Office appear consistent with the general views we've expressed repeatedly over the years. We have long favored a simplified licensing system for music publishing in which a fair but single royalty payment is made for a single commercial transaction.

We have no view at this time on whether legislation would be the appropriate means of resolving these licensing issues. We have always preferred to negotiate business solutions in the marketplace. Indeed, we are hard at work right now to do just that with the music publishers.

Rich Taylor, spokesman for the Motion Picture Association of America

It looks to us like the copyright office has come to a proper conclusion. They seem to feel that there's no need for legislative address of the first sale doctrine. We think that's a proper read of the environment right now.

Frederick Weingarten, director of the American Library Association's Office for Information Technology Policy

They rejected the points we were trying to make. They expressed sympathy for our cause, but they still don't really get what technology is doing. They mention that we -- and others -- wanted an expansion of the first sale doctrine; but that's precisely not what we want. We wanted to preserve the doctrine for digital works, not expand it. The fact that they think we want to grab more rights somehow misses the point. And they still think that these new technologies' effects are far off in the dim future. They don't understand that things are already changing and that there is real harm when a programmer faces 25 years for writing a program. That's serious, real harm.

So we're still concerned that an unholy triangle -- the trend toward licensing and click-wrap agreements (where you click 'I agree' to a license to download an article or software); the technological measures of copyright protections; and the criminal sanctions in 1201 -- are being used to close and shrink the rights of consumers. The problems are still there.

Fred von Lohmann, senior intellectual property attorney, Electronic Frontier Foundation

The report is very disappointing. The copyright industries have armies of lobbyists to defend their side of the copyright balance in Washington; the Copyright Office, as an arm of Congress, should be defending the public's side of the balance. Instead, the Copyright Office issued a timid report that essentially asks the public to trust that copyright owners will wield the DMCA wisely, accommodating our first sale and backup needs. What an ironic notion on the eve of Dmitry Sklyarov's arraignment.

Let's catalog how copyright owners have used the DMCA so far: to silence a magazine publisher (2600 case); to threaten computer science professors (Prof. Ed Felten); and to jail programmers (Dmitry). And as for the public's first sale and archiving rights, copyright owners are poised to debut a host of DRM [digital rights management] technologies that will dramatically curtail these rights (e.g., eBooks and several audio DRM technologies tether works to particular machines, thus defeating first sale). The writing's on the wall -- how much worse does it have to get before the Copyright Office recognizes that the DMCA has fundamentally, and unwisely, unbalanced the Copyright Act?

In fact, in the face of all this, the Copyright Office is recommending that first sale be narrowed because consumers may be able to sell "fair use" copies. Pro-Dmitry protesters have taken to the streets around the world, and the Copyright Office appears to think the real problem is that consumers may be giving videotapes of last week's "Buffy the Vampire Slayer" to their friends.

And since when has the public been required to trust in the wisdom of the copyright industries to protect its side of the copyright balance? I thought that's what Congress (and the Copyright Office) was for.

The Copyright Office has missed the forest for the trees. Two developments threaten to eliminate entirely the copyright balance in the digital world: the DMCA and the increasing use of "licensing agreements." Copyright owners are using these two mechanisms as substitutes for copyright, in an effort to eliminate the public's side of the copyright balance. Instead of taking a stand to protect the historic copyright balance crafted by Congress and the courts, the Copyright Office has firmly planted its head in the sand.

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