15 Year Retrospective of the Digital Millennium CopyrightAct
hashtag #htli; plenty of resources/papers/etc. at conference website.
Welcome
Eric Goldman, Santa Clara University School of Law: Genesisin similar conference on §230, which plays a huge role in the internetecosystem. That conference was almostuniformly enthusiastic, but this one is unlikely to do so—we’ll talk about whatworked and what didn’t. Using DMCAwithout disambiguation is bad—there were 5 major provisions. We aren’t going totalk about Vessel Hull Design Protection aspects. Not going to discuss computer repairprovision, though there is a lot to say. And we’re not going to discusssuper-interesting web provisions (not that anyone knows what it says). Instead, anticircumvention/CMI and 512, theonline safe harbors. Capture for history people who were making the sausage andhow they think about how it tastes 15 years later.
Corynne McSherry, Electronic Frontier Foundation
Couldn’t be better timing. Controversy right now over cellphone unlocking, hopes to spark a largerconversation about 1201. Yesterday, we had a new UMG v. Veohdecision on 512.
Bruce Lehman, former U.S. Assistant Secretary of Commerce(author of Green and White Papers, many of whose proposals made it into thelaw)
Clinton and Gore in 1992 made a campaign theme that economicgrowth would depend on moving away from traditional industrial infrastructureinto areas like the “electronic superhighway.” Internet at the time connectedacademia and the military.
AOL provided a “walled garden” and popular chatrooms. Itsbusiness model was threatened by the WWW, allowing connections w/out AOL, but AOLsolved that problem initially by becoming the primary mechanism people used toget online through their local dialup service (or later broadband).
Al Gore did in fact do a huge amount, more than any otherpolicymaker, to create an environment for the internet to thrive. As Assistant Sec. of Commerce andCommissioner of PTO, Lehman was asked to create a working group to look at IPimplications of emerging electronic infrastructure—patents, TM, internationalsituation.
Started out with public hearings, consultations. At the end of the white paper, offered adraft bill, whose primary reforms were few. Concluded that existing copyright law of US was for the most partsatisfactory. But now everyone couldhave a printing press, creating enforcement difficulties (continuing andaccelerating erosion caused by existence of photocopying machine). US law did cover dissemination of copyrightedworks in this new environment, because of the distribution right. Footnote: most European countries didn’t havea recognized distribution right, but rather reproduction and public performancewere at the core of their rights.
We felt no significant changes were needed, but that for allpractical purposes once a copyrighted work was “out” online it would bevirtually impossible to keep control of it in the way people historically hadbeen able to do unless they used technology to do so coupled withlicensing. We understood that even thoughhistorically we have always had a business model of paying for copies, we’vealso always had other business models involving free provisioning and theeconomics were supported by ads or by an incentive to spread the word. But anticircumvention came in to make it aninfringement to attempt to disable a box or open a package in which thecopyright owner had put a work. That wasthe most important part of the proposed act.
That’s what we sent to Capitol Hill. Concurrently, we were engaged in negotiationsat WIPO, taking long-time negotiations (the Berne Protocol and the Phonogramsprotocol) and turned them into negotiations over what the internet should looklike. Most of our trading partners didn’treally recognize this broader distribution right, so one of the most importantaspects of the emerging treaties in 1996 was, in addition to anticircumvention,a right of making available to the public. Gave copyright a much broader footprint—an exclusive right under WIPOCopyright and Phonograms Treaties. Adhered to by most countries.
At the time, many people accused Lehman of making an end runaround Congress and negotiating the treaty and then coming back and tellingCongress we had to act that because we agreed to do so. They’re right; it was adeliberate end run. But we had both a domestic and international problem,because the internet knows no national boundaries. This legislation, in theend, implemented an international treaty obligation. The 12-page proposal in the White Paperbecame a statute over 60 pages long, which is what happens when lobbyists gettheir hands on any proposal. West Coastpeople think that Silicon Valley is the center of the universe, look down onDC; useful to educate people that what happens in DC affects your business (ed.note: I believe they know that; that education is not what’s necessary toovercome their contempt, though I’m with Evgeny Morozov in thinking we shouldbe suspicious of that self-serving contempt in many circumstances; rather weneed a conversation about the good that politics as politics can do, which isnot immediately apparent in what Lehman is about to describe). Final statute is a contract among manyparties, in essence written into the law. More meetings on K Street than onCapitol Hill; different interest groups negotiate with each other about whatthe law should look like; if they agree people on Capitol Hill won’t say no.
By far the most significant provisions were the ISPprovisions—we used service provider rather than access provider deliberately,in order to broaden the scope of the provisions. All the telecom lobbyists, extremely powerfulforces, descended like locusts and wanted out of any responsibility.
We wanted to see the content industry bloom and expand; thatwas a US comparative advantage and we wanted to push such areas, so wesupported Hollywood and the record industry.
Of course it was a disaster for the record industry, largelytheir own fault. Head of then-biggest record company in the world, WarnerRecords, wrote a book a few years later confirming what Lehman thought aboutrecord executives: they’re impresarios. The most successful are 45-year-old menwho can think like 17-year-old girls and like to hang out at 3 am and do drugswith rock stars. But that’s not the mindset that does well at evolving newbusiness models for highly complex technologies. Now, though, they are starting to come out ofthe tank.
Some of the other content industries had more time—Hollywoodhas never really suffered; book publishing a bit, but other people like Amazoncame up with new business models; Steve Jobs.
Now seeing maturation of business models that will be withus for quite some time. Business models are also contracts between groups. Comcast now owns Universal; Viacom ownsbroadcast; they’re all intertwined. Noweveryone’s gotten together and the ISPs are going to cooperate with contentowners, more gently than perhaps initially content owners wanted, in policingthe internet. Finally seeing a settling down of the system.
In retrospect, a lot of the sturm und drang and paranoia hasbeen much ado about nothing; the changes of the DMCA were quite modest. Therewere major adjustment problems adjusting, not to the DMCA, but the newtechnological and business environment, but we’re beginning to see oldindustries with robust new business models and fabulous industries that didn’teven exist when we first talked about the electronic superhighway.
Q: what’s the biggest unintended consequence of the DMCA?
A: For him, the ISP exception emerging from the White Paper—thatwas not what he intended. This was partof a larger effort to adjust the US to an emerging new postindustrial, globalizedeconomy. We’re all better off ifcountries can take maximum advantage of their comparative advantages. If everyone can trade that way, we’re allbetter off. But WTO and TRIPS have beena huge failure—Special 301 reports from USTR are the same as they were before.The reason is that we did our part—you can’t buy cheap manufacturedgoods/textiles made in this country any more—but the jewel of the US economy isin Silicon Valley. Google: one of the mostsuccessful American enterprises, doesn’t like DMCA much, but anyway can’t dobusiness in China because of censorship. Cheating and failure to enforce IP made that original vision not areality. The thing that he didn’tanticipate and is most disappointed about is that this construct we tried tocreate domestically and internationally hasn’t been effective on a globalscale.
Q from Tyler Ochoa: if you agree that record industry’sproblems were largely its own fault, what did it do wrong?
A: Give him three hours. He thought what would happen would be that internet access providerscontrolling the pipe would cooperate. In the past, you’d get a phone bill withevery call on it. Likewise, he thoughtwe’d rapidly move to digital diffusion/making available of works that werehistorically print/CDs/etc. We’d move todistribution via broadband, with micropayments. Everyone could just get intothe system, and a little content producer would get a small check as a small composergets one from ASCAP/BMI. He realizedthis would be a problem when, at a conference, a bunch of record VPs got up andsaid “the consumer will never give up the browsing experience of going to therecord store.”
One business transaction characterizing the problem was themerger/acquisition of Time Warner by America Online—internet upstart, then thegiant. Their market cap was so high itcould acquire the biggest content company in the world. Steve Case would use AOL to make all thisstuff available through AOL! Had he done it atthat time, which could have been done with music even with limitedbandwidth, would have been different—but instead the idea was that AOL wouldput some articles from Time onAOL. They had everything. Napster neverwould’ve happened, because 80% of people online were going through AOL. If you’dmade it really easy for them to get music that way, a la iTunes, history would’vebeen a lot different.
Captains of industry, sadly, lack the wisdom they oftenattribute to themselves. Many things inthe US are the result of utterly incompetent CEOs who are more interested inthe next quarter’s pay than in taking care of shareholders. Catastrophe for music industry is oneexample.
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