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Witness Testimony
Mr. Lawrence Lessig
H.R. 107, The Digital Media Consumers' Rights Act of 2003
Mr. Chairman, and Members of the Committee: I am the John A. Wilson Distinguished Scholar, and a Professor of Law at I am grateful for the opportunity to testify before you today, and offer the
following to help your deliberations. Copyright law is an essential protection for authors and creators. It is a
necessary protection for creative industries and commerce. Innovation and
creativity depend upon adequate and reliable copyright protection. Commercial
piracy is therefore an important threat that the government rightly should
address. Yet in its eagerness to staunch commercial piracy, the law must not lose
sight of the crucial balance in copyright that has also been at the core of our
tradition. These limits in the "Fair use" is one important limitation upon the regulation of copyright.
Historically, it has neither been the most important or most familiar. The
efforts of this Committee to consider whether fair use is adequately protected
in the digital age is an important first step in striking the right balance in
the regulation of copyright. But it is only a first step. In my view, Congress's zealous efforts to
attack "piracy" have had the unintended collateral effect of destroying a
crucial balance in copyright law. Never in the history of our nation has the law
of copyright regulated as broadly; never has it regulated as extensively. And in
light of the creative and commercial potential of digital technologies, never
has the law burdened creative work as directly or pervasively. If copyright
litigation promises to become the "asbestos litigation for the Internet
Age," as Stewart Baker recently wrote in the Wall Street Journal,[1]
then the actual law of copyright promises to become the IRS code of the creative
class. The direct beneficiaries of this massive change in legal regulation are
existing, highly concentrated, copyright industries, and lawyers. Those burdened
by this regulation are increasingly creators and innovators, both commercial and
noncommercial. In my view, Congress should systematically reconsider the scope of federal
regulation governing the creative process. It should reevaluate, in light of the
massive changes that digital technology produces, the best way to protect the
legitimate interests of creators. Rules that made sense even just 30 years ago
are highly questionable today. Congress's objective must be to guarantee that
the regulation of creative work continues to serve the single constitutional
purpose of that regulation: to "promote the Progress of Science." I know from personal experience that the position I mean to advance before
this Committee is apparently difficult for many to understand. No doubt that
failure is in part due to the rhetoric of some of us on this side of the debate.
So let me state as simply and clearly as I can: My argument is for balance in
copyright regulation. Yet many hear such an argument as an argument against
copyright. A kind of "IP McCarthyism" seems to govern this debate. The
rhetoric from both extremes makes it sound as if the only choices were between
two extremes. This view is a profoundly costly mistake for both commerce and innovation
generally. Congress must begin to recognize the radical change in the scope and
reach of copyright regulation in just the past twenty years. In part that change
is the product of legislation; in part it is the unintended consequence of
copyright law applied to vastly different technologies. As I have tried to
demonstrate in my own work,[2]
the consequences of these changes together are to burden creativity, and stifle
commercial innovation. Neither effect is a necessary consequence of a
well-crafted copyright law. Just as one can criticize the tax code without criticizing the idea that in a
civilized society, citizens must pay taxes, and just as one can criticize the
regulations of OSHA without believing that business should be free from safety
regulation, so too can one criticize the extremism that copyright law has become
without criticizing the idea that copyright is essential to creative work, and
to creative industries. That it is essential is my view; that it has become too
costly and inefficient is also my view. It is for this reason too that it is extremely important that these issues be
considered by this Committee. The history of regulation being used as a tool to
stifle competition is long. And as this Committee knows well, only a careful and
consistent monitoring of regulation can assure that the law not become a tool
that industries use to protect themselves from new competition. Every generation
will view the innovations of the next generation as troubling and threatening.
But those same innovations keep competition vigorous. As Adam Smith famously
remarked, competitors are always seeking ways to stifle competition. Federal
monopolies, which copyrights are, are often the most effective tool. Copyrights
are no doubt important. But the Constitution gives Congress the power not to
grant copyrights, but to "promote the Progress of Science." In the testimony that follows, I briefly outline the historical balance that
copyright law struck. I then consider the current position of "fair use," in
light of the changes that I describe. Against this background, I argue that H.R.
107 is an important step in restoring balance to copyright. And finally, I
conclude with other efforts Congress might consider to further balance copyright
law in light of new technologies. The Historical Balance of Copyright As the Supreme Court has repeated, and as the late Professor Lyman Ray
Patterson made clear,[3]
copyright "has never accorded the copyright owner complete control over all
possible uses of his work."[4] Its purpose instead is to
secure a limited monopoly over certain ways in which creative work is exploited,
so as to give authors an incentive to create, and thus, in turn, to "promote
the Progress of Science." Originally, the trigger for that protection was the act of "publishing" a
work. The first Copyright Act secured an exclusive right to the authors over the
publication of "maps, charts, and books."[5]
In 1909, the scope of that right was expanded to give authors an exclusive right
over "copies."[6]
Against the background of the technology extant in 1909, that change was
probably not intended as a substantive change in the reach of the law, and in
any case, was not significant: For printed texts, the technologies of
"copying" were essentially the same as the technologies of "publishing." Before digital technologies, this pattern of regulation meant that while some
"uses" of copyrighted material were plainly regulated under the law -
publishing a book, or reprinting a chapter - many uses were unregulated under
the law. Reading a physical book, for example, is an unregulated use under the
law, since reading a book does not produce a copy. Giving someone a book is an
unregulated use, since giving someone a book does not produce a copy. These uses
are thus independent of the regulation of copyright. And these unregulated uses
support many important commercial activities, including used bookstores and
libraries. Unregulated uses are not the same as "fair use." "Fair use" is a
privileged use of a copyrighted work that otherwise would have infringed an
exclusive right. It is, in other words, a copy that the user is privileged to
make regardless of the desire of the copyright owner. Thus, reading a book is an
unregulated act under copyright law. But quoting a book in a critical review is
a presumptively regulated use (because a quote is a copy), yet privileged under
the law of fair use. The traditional contours of copyright law thus secured to authors exclusive
rights over just some uses of their creative work. But it secured to consumers
and the public unregulated access to that creative work for most ordinary uses.
And it privileged the public for some uses that would otherwise have infringed
the exclusive right to copy. This traditional balance has been changed in the context of digital
technologies. For it is in the nature of digital technologies that every use of
a digital object produces a copy. Thus every use of a digital object is
presumptively within the scope of copyright law's regulation. And that in turn
means many ordinary uses must now either seek permission first, or rely upon the
doctrine of "fair use" to excuse what otherwise would be an infringement. For example, the ordinary use of reading a book - unregulated by copyright
law for a physical book - is now regulated by copyright law on a digital
network: as any act on a digital network, produces a copy, so too does merely
reading a book. The same with "lending" a book, or selling a book - all
these produce copies; all these are regulated on a digital network; none of
these would have been regulated outside of a digital network. These changes are the unintended consequence of the interaction between
digital networks and a form of copyright law that triggers liability upon the
making of copies. Their consequence is that the law now reaches far more broadly
than it ever did before. And when tied to the unconditional reach of copyright
after the abandonment of copyright formalities, they mean that the burden of
copyright applies in a vast range of contexts in which it does not also provide
any copyright related benefits. The Current Inadequacy of Fair Use There are many who believe that "fair use" is an adequate balance within
copyright law. I believe that at present, this view is mistaken for three
related reasons. First, as the history just sketched suggests, the doctrine of "fair use"
has not historically been relied upon to free ordinary uses of copyrighted
material from the regulation of the law. Instead, ordinary uses were free of
regulation because copyright law did not cover those uses. "Fair use"
originally regulated uses by competitors to the copyright owner.[7]
It didn't regulate uses by consumers. Yet given the fundamental shift of
copyright's reach, it is now the rights of consumers to use content in
ordinary ways that must be defended through the doctrine of "fair use." Second, as any practical understanding of the law reveals, "fair use" is
an extraordinarily uncertain freedom. The test is crafted as a balancing test,
with no single factor as determinative. This means that ex ante, it is extremely
hard for creators and publishers to know precisely what freedom the law allows.
This either forces publishers to impose rules that are far more strict than fair
use,[8]
or it forces creators to clear permissions upfront. And when that permission
cannot be secured, it forces the creator into an extremely difficult choice:
whether to risk substantial exposure for copyright liability, or to remove the
speech from the creator's work. A recent example involving NBC makes this hypothetical more salient. Cinema
Libre intends to distribute an award-winning documentary about the Iraq War by
film director and producer Robert Greenwald, titled "Uncovered." In
preparing the extended version of the film, Greenwald wanted to include a
one-minute clip from NBC's "Meet the Press" interview with the President.
Greenwald was denied permission. The agent informing Greenwald's agent of the
decision stated, "unofficially, we don't believe it makes the President look
good." And thus Greenwald and Cinema Libre are now confronted with a stark and
odd choice for a democracy protected by the First Amendment: Should they risk
substantial liability simply to repeat the words the President of the These costs of fair use are significant both to commercial and creative
potential. Though some naively believe the costs of seeking permission are
slight, in fact those costs are prohibitively high for all but a few commercial
creators. Indeed, because the costs of giving permission are often higher than
any possible revenue from that permission, many rights owners adopt a simple
presumption against giving permission. Transaction costs thus bury creative work
under a system of uncertain fair and free use. Finally, and most directly related to the issues before this Committee today,
"fair use" is effectively erased by technical measures that block ordinary
or fair uses of creative material, and by legal rules that render illegal
technologies that might help evade those restrictions. Thus, technologies that
restrict the ability to capture a clip from a DVD for educational purposes, or
that restrict the ability of consumers to backup digital media, interfere with
uses that would, under the law of copyright, be deemed fair. And under the DMCA,
efforts to evade those restrictions are prohibited. These three reasons together suggest that "fair use" in its current state
will not suffice to secure a balance between the control copyright regulation
secures, and the access that copyright is meant to guarantee. It is therefore
crucial that Congress consider a range of measures to update fair use in the
digital age. H.R. 107 is an important beginning, as I describe below. But I
would not let it be the last. Fair use has been a central aspect of American copyright law. It is less
familiar within other legal traditions. Indeed, this difference may well account
for the relatively anemic understanding of fair use offered by trade
associations, including the RIAA. As every major label in that trade
organization is now owned by foreign corporations, it is not surprising that
those labels find our tradition to be alien. "Fair use," as a senior
executive at one of the major labels recently put it, "is the last refuge of
scoundrels." I understand how that may be the view of some in the world. But
within our tradition, fair use is a core freedom. In its current state, however, fair use does not effectively protect
consumers and creators in their transformative use of creative material. That in
turn increasingly stifles commerce as well as creativity. One useful example of this consequence is the litigation surrounding MP3.COM.
MP3.COM designed a technology to enable consumers to verify to a computer that
they owned or possessed a CD. Once that fact was verified, the company gave the
consumer access to the content on that CD from any computer on the network.
These password protected accounts served to validate and protect the selected
music. And they were supported by MP3.COM's purchasing and copying 50,000 CDs
onto MP3.COM's servers. Because the company was simply giving customers access to music they had
already presumptively purchased, and because the service in fact made the music
that people had purchased more valuable, MP3.COM believed its business model was
protected by "fair use." Some recording labels and artists disagreed, and
sued MP3.COM. Months later, a court found the company liable, and fined the
company over $120,000,000, and effectively forced the company into bankruptcy.
When one of the labels suing MP3.COM purchased the company, it then filed a
lawsuit against MP3.COM's lawyers, charging them with malpractice in advising
MP3.COM the company that its business model was legal. That case has subsequently been criticized by Judge Richard Posner.[9]
But my point here is not to take sides in the matter (although I agree with
Judge Posner). It is instead to make the obvious point that a committee on
Commerce would well understand: if the doctrine of fair use is so uncertain that
senior and respected judges would apply it differently in the same case, and yet
exposes innovators to such severe liability, we can expect (as we have observed
in Silicon Valley) that this legal uncertainty will chill business investment. H.R. 107 H.R. 107 is an important first step in restriking a balance in copyright law.
The bill would make two significant changes. It would first, and least
controversially, require adequate labeling of copy-protected CDs. And second, it
would eliminate anti-circumvention regulation in contexts in which there is no
underlying copyright interest at stake. (1) Labeling As this Committee is well aware, technologists have been working for many
years to find a technological way to control how CDs are used by consumers. In
particular, they have sought a technological way to assure that a CD could be
played, but that its content could not be copied. Such a technology, given the open implementation of CD protocols, is
extraordinarily difficult to perfect. And hence the risk that any particular
technology will not work on a particular machine is high. "Not work" however can mean much more than simply not playing. In some
reported cases, copy-protection technologies have actually destroyed data on the
consumer's computer. That loss can be extremely costly. This risk is more significant on less-mainstream computers. Any
copy-protection technology is likely to have been tested on the most popular
systems. It is economically impossible for these technologies to be tested on
every system. Thus, it is certain that some users of these copy-protected
technologies will use the technology on a machine for which it has not been
tested. And no doubt, some will suffer significant costs from that use. These costs from copy-protection technologies must be considered in light of
an obvious fact: that the ordinary use restricted by these technologies is not,
ordinarily, a copyright infringement. A consumer who purchases a CD, and then
shifts the content of that CD to his computer so that he can listen to music,
engages in a "fair use" of that content. No doubt some might not be
protected by fair use - a user who systematically copies CDs borrowed from the
library to build his own library of music, for example. But the vast majority of
users would be using purchased content in a totally legal way. In this context, a labeling requirement is an obvious and valuable regulation
for both consumers and producers of content and computers. The benefit to
consumers is obvious: they can avoid protected content if they have reason to be
concerned that the technology used to protect the content might interfere with
their machine. But there is also a benefit to content producers and technologists: To the
extent stories about harm caused by copy-protected technologies become more
common, they will create an uncertainty among computer users. That will reduce
the demand for CDs by those users. Eliminating that uncertainty will counteract
that dampening of demand. And likewise, producers of competing, but not-yet
mainstream, technologies will not face the barrier to entry created by consumer
fear - namely, that their technology might interact badly with copy-protected
CDs. If there's no way to know whether a CD will destroy data on a non-Windows
based computer, that will, on the margin, make it less likely that one would
purchase a non-Windows based computer. Adding information into the market will thus improve competition within the
market. And while in the short term, such labels may drive consumers away from
copy-protected CDs, they will also create a strong incentive for CD
manufacturers to support certifying organizations that can verify that the
technologies cause no harm. The label would thus create an incentive for better
cross-platform certification, which again would benefit consumers and
competition generally. (2) Non-infringing use exception from anti-circumvention
regulation The more controversial aspects of H.R. 107 are the portions aiming to exempt
from DMCA liability technologies that circumvent copyright protection
technologies for privileged uses. The bill both privileges circumvention if the
underlying use of the copyrighted work would be privileged, and privileges
technologies "capable of enabling significant non-infringing use of a
copyrighted work." This correction to the DMCA is long overdue. It is necessitated first by the
limited authority granted to Congress under the Copyright and Patent Clause. As
the Supreme Court has repeatedly affirmed, Congress's power under the
Copyright & Patent Clause is limited. Graham v. John Deere Co., 383 No doubt, content owners who rely upon copy-control technologies will worry
that this exception will swallow the DMCA-rule: that by allowing technologies
that, e.g., enable back-ups of DVDs, Congress will be allowing technologies that
enable "piracy." But there is absolutely no independent economic showing of
harm caused by the ability to circumvent copy-protection technologies for
non-infringing uses. It is possible, of course, that such an exception will
create a problem in the future. But rather than destroying a tradition of
consumer rights because of a fear, Congress should predicate additional legal
regulation only upon an actual showing of harm from such technologies. That showing, moreover, must be precisely focused upon the copyright related
interest in controlling circumvention. The question of harm is whether the
existence of a technology (a) cannibalized a market (by enabling some to get the
content without paying for it) more than it (b) expanded the market (by making
the underlying content more valuable). That harm must then be discounted by the
constitutionally required "fair use" enabled by that technology. Other Necessary Steps As I have indicated, this important legislation is just the first step in a
series of actions that Congress should consider to assure that copyright law
continues to function in the balanced way that is our tradition. In addition to
this change, I would urge this Committee to recommend the establishment of a
serious and balanced study, perhaps chaired by former Congressman Robert
Kastenmeier, to consider fully how best to adjust the protections of copyright
to the digital age. Kastenmeier's tenure chairing the Subcommittee on Courts
was defined by a constant appreciation of the balance the law needs to strike in
light of changes in technology. A commission focused on precisely this sort of
balance could provide a map for Congress in a range of areas. Such a map would reveal, I suspect, the great value that could be produced by
rules designed to re-formalize much of copyright law. One unintended consequence
of Congress's changes in the law in the 1976 Act was to eliminate many
traditional copyright formalities. That in turn has massively increased the
unproductive burden of copyright regulation - both making it more difficult to
track down copyright owners, and extending copyright protection to works having
no continuing copyright-related interest. Rules for more clearly identifying
owners and content requiring protection would improve the creative process
generally. No doubt some of this work can be done by the private sector. I am Chairman
of Creative Commons, <http://creativecommons. org>, a non-profit
corporation that builds and gives away technologies that enable authors and
creators to more simply signal the freedoms they intend to run with their
content. Thus a musician can use these tools to signal her desire that others
share her music for non-commercial purposes. Or an author may use these tools to
signal his desire that others use his work for any purpose so long as
attribution is given. As a recent feature article in Business 2.0 describes,[10]
this strategy is increasingly used by artists and authors to enable their own
commercial success, by lowering the transaction costs imposed by the law on the
ability of others to reuse and share content. I am proud of the work that Creative Commons has done to enable creators to
make their work more easily available. And following a recent grant, I am eager
to expand that work into the domain of science. But this work signals the need
for a more extensive reconsideration about how copyright law currently
functions. It is not a substitute. Conclusion As the Supreme Court has indicated repeatedly, it is primarily Congress's
job to "defin[e] the scope of the limited monopoly that should be granted to
authors or to inventors."[11]
But in executing that task, it is crucial that Congress not be captured by any
single set of interests. While I believe historically that Congress has done a
good job in balancing technologies and protection, there is an important and
valid criticism made by many that Congress has crafted copyright policy to
conform to the interests of current creators, while ignoring the interests of
future creativity, and businesses that build on their work. My concern is that this dynamic precisely is happening just now. In the heat
of the debate about "piracy," I believe that Congress is losing sight of
other important values. And in particular, in the burdensome regulations that
have been enacted to fight "piracy," my concern is that a great deal of the
potential commerce and creativity that digital technologies might enable will be
lost. [1]
Stewart Baker, Review, Wall Street Journal, W6, March 26, 2004. [2]
The Future of Ideas (2001); Free Culture (2004). [3]
See Lyman Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 46 (1987). [4]
Sony v. [5]
Act of May 31, 1790, 1 Stat. 124. [6]
Patterson, supra, at 12. [7]
[8]
See William F. Patry and Richard Posner, Fair
Use and Statutory Reform in the Wake of Eldred, California Law Review
(forthcoming 2004). [9]
William M. Landes & Richard A. Posner, The Economic Structure of
Intellectual Property Law 120-21 (2003). [10]
Andy Raskin, Giving it Away (For Fun
and For Profit), Business 2.0 (May 2004). [11]
Sony, supra, 464 Related Documents |
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