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Stanford Report, May 14, 2003

Making 'fair use' illegal: Scholars assail copyright laws as overly broad 'This is just about controlling aspects of our culture,' Internet law expert Lawrence Lessig tells Aurora Forum

BY JOHN SANFORD

In combating digital piracy, the film, music and software industries have supported legislation and developed technologies that threaten the health of the public domain, free speech and ultimately our cultural heritage, according to Stanford law Professor Lawrence Lessig.

Lessig, who founded the Center for Internet and Society, joined University of California-Berkeley law Professor Pamela Samuelson, an expert on intellectual property, onstage May 5 at Kresge Auditorium for the Aurora Forum titled "Public Life in a Wired World." The forum was moderated by Geoffrey Nunberg, a senior researcher at Stanford's Center for the Study of Language and Information and a consulting professor of linguistics.

The two law professors said they are dismayed by what they view as technological infringement on "fair use" provisions of copyright law. Lessig, in particular, painted a sobering, Orwellian picture of a future in which only a few big companies exercise near total control over cultural products.

The problem stems in large part from the 1998 Digital Millennium Copyright Act (DMCA), which was created to regulate intellectual property on the Internet, and the Sonny Bono Copyright Term Extension Act of 1998, which lengthened copyright duration an additional 20 years, according to Lessig and Samuelson.

Enacted with the goal of protecting music and movie businesses from digital piracy, the DMCA has led to many detrimental -- if unintended -- consequences, Lessig said. Opponents of the law particularly chafe at a section that makes it illegal to circumvent copyright-protection systems. Citing an example of how the statute may be used in ways for which it probably was never intended, Lessig recounted a case involving Sony Corp.'s AIBO robots, which look like small, metallic dogs and which have spawned a subculture of aficionados. One such fan set up a website devoted to discussing and sharing information about the toys, and posted instructions on "hacking" the dog's electronic code to teach it to dance jazz. He subsequently received a letter from Sony informing him that the instructions were a violation of the DMCA because they provided a means for circumventing copyright protection, Lessig said.

"Some people have to be reminded of this, but in the United States it's completely legal to dance jazz," he added.

Lessig and Samuelson also pointed out that the DMCA may make illegal what previously would have been considered "fair use" of material. For example, if you want to make a backup copy of a DVD you bought -- to, say, guard against your clumsy friend stepping on the original or your child using it in a microwave-oven experiment -- you probably will have to bypass a technological measure meant to prevent illegal reproduction, which means you will be breaking the law; in the words of the DMCA, you would be "circumventing a technological measure that effectively controls access to a work." The same may hold true if you excerpt just a small segment of such a technologically protected work for, say, a school presentation. Yet this flies in the face of rights protected in U.S. copyright law, the professors said. "Fair use" provisions generally have allowed someone who buys a record, tape or CD to make copies of it for personal use, and the ability to excerpt content from print, audio and digital media is necessary to engage in academic work and criticism.

Both Samuelson and Lessig said there are plenty of ways to protect digitized intellectual property from pirates without infringing on fair-use rights. They warned that, unchecked, some of the industry's security measures could simply be used to make more money. Samuelson said the recording industry could market a CD that allows the listener to play it only a limited number of times before it stops working. Any attempt to get around the restriction would violate the law.

Copyright extended 11 times

The Internet presents an unprecedented opportunity to archive old -- and, in many cases, forgotten -- films, books and images. But the Copyright Term Extension Act of 1998, which represents the 11th time Congress has lengthened the term of copyright, threatens not only the vigor of the public domain but the physical integrity of some of the works, Lessig said, explaining that nitrate-based film, with which older movies, documentaries and newsreels were made, deteriorates with age. However, the effort and money needed to hire a private investigator or lawyer, or both, to hunt down the copyright holder of a particular film and get permission to use it is prohibitive. "By the time the copyright expires, the films will have expired," Lessig said, asserting that no possible good can come from locking up works under copyright when they're not being commercially exploited -- and could be preserved for posterity on the Internet.

Lessig served as the lawyer for a New Hampshire man, Eric Eldred, who challenged the constitutionality of the Copyright Term Extension Act before the Supreme Court. Eldred, who had started a free cyber-library composed of works in the public domain, was unable to post some Robert Frost poems as a result of the extended copyright law. However, the court ruled that Congress acted within its constitutional rights. Lessig, speaking bitterly of the defeat, maintained that the court "didn't grasp" how harmful the law would be in inhibiting creativity and the dissemination of culture.

He noted that if someone wants to create a website about the New Deal, that person still has to worry about copyright. (As it stands, only material copyrighted before 1923 is currently in the public domain.) "The public domain is a lawyer-free zone. The great virtue is you don't need permission," he said. "It's not earning Britney Spears a dollar more to lock up work from the 1950s. This is just about controlling aspects of our culture."

A member of the audience who introduced himself as a retired software engineer asked the panelists what people could do to try to change laws such as the DMCA and Copyright Extension Act.

Lessig responded that people need to become more politically active, writing their representatives and senators in Congress and supporting those politicians -- such as U.S. Reps. Chris Cannon, R-Utah, and Zoe Lofgren, D-San Jose -- who have supported more balanced approaches to digital copyright laws.

He noted that the entertainment industry's reserves of powerful lobbyists and famous celebrities make it a formidable opponent. "They have movie stars," he said. "We have professors and guys in pony tails."

"Public Life in a Wired World" will be broadcast on KQED Radio at 8 p.m. June 11 and 1 p.m. June 14. The series' inaugural forum, "National Pride, National Shame," is set to be broadcast on the station (FM 88.5) at 8 p.m. June 4 and 1 p.m. June 7. Other forum discussions will be broadcast in September, before the 2003-04 Aurora Forum series kicks off.

The next forum, "Your Body on the Line," is scheduled for June 2 and will feature Julia "Butterfly" Hill, who became famous after spending two years in the branches of a giant redwood in Northern California to protest against logging practices in the region. Joining Hill will be writer, critic and activist Rebecca Solnit, whose most recent book is River of Shadows: Eadweard Muybridge and the Technological Wild West.

Sponsored by Stanford Continuing Studies, the Aurora Forum brings panels of socially engaged writers, artists and scholars to Stanford to discuss the past, present and future of the nation's ideals and aspirations. All events take place at 7:30 p.m. in Kresge Auditorium and are free and open to the public. A full schedule of dates, panelists and topics is available on the web at auroraforum.org.