Subject: Re: Thought crimes
Date: Wed, 27 Dec 2000 13:19:30 -0800
Wed, 27 Dec 2000 13:19:30 -0800
on Mon, Dec 25, 2000 at 10:12:21PM +0100, Bernard Lang ( wrote:
> On Mon, Dec 25, 2000 at 12:07:31PM -0500, Jonathan S. Shapiro wrote:

> > The model for modern copyright law was the Copyright Act of 1709, 8 Ann. c.
> > 19), which was fundamentally an anti-monopoly law. Modern copyright is based
> > on *preventing* monopolies of exactly the kind that the content
> > manufacturers are trying to establish.
> Could you elaborate on these two sentences ?

Pamela Samuelson, professor at Boalt Hall and the School of Information
Management Sience at UC Berkeley, covers copyright, technological
protections, and a strong history of copyright law, in her paper
"Technological Protection for Copyrighted Works" (draft, 2/14/1996).

It usually is, BTW, "the Statute of Anne", not "Ann", Samuelson gives
the date as 1710.

The focus of Samuelson's paper is the (then) recently released "National
Information Infrastructure Task Force, Report of the Working Group on
Intellectual Property and the National Information Infrastructure (Sept.
1995), (AKA "White Paper").  In it she argues strongly that legal means
are quite possibly dangerous to traditional copyright protections...and
that technological means might be preferred.

Samuelson writes:

    Members of the Stationers' Company would have preferred continuation
    of their copyright system forever. However, over time, a combination
    of circumstances -- complaints by authors that printers were
    unfairly appropriating their works, by unlicensed printers about the
    unfairness of their exclusion from competition with licensed
    stationers, and by the public about exorbitant prices for books and
    the silencing of dissenting views by reason of censorship the
    stationers' copyright regime brought about--led to the demise of
    this system.

    The first modern copyright law, namely, the Statute of Anne in 1710,
    brought about several changes: (1) copyright was now initially vested
    in authors, rather than publishers; (2) the rationale given for the
    grant of rights to authors was to encourage learned men to compose
    useful books and make them available in order to promote learning
    more generally; (3) as a consequence, copyrights were now available
    primarily to newly authored works; (4) as a further consequence,
    copyright was no longer perpetual in duration, but lasted for only
    fourteen years from the date of first publication of a work; and
    (5) in the event that complaints arose as regards the prices charged
    for books, a procedure was established by which to address such

    The Statute of Anne regulated printing technology by granting
    authors exclusive rights to print, reprint and vend books embodying
    their works. However, its significance goes beyond this. By
    rejecting the stationers' copyright system, which in conjunction
    with the Licensing Act provisions, had restricted entry into the
    printing and bookbinding businesses, the English Parliament adopted
    utilitarian incentive and anti-monopoly principles in copyright law.
    It also endorsed promotion of learning as a central purpose of
    copyright, embracing Enlightenment principles that, over time, came
    to be reflected in the first amendment to the U.S. Constitution.
    U.S. antitrust and anti-censorship traditions, in part, trace their
    origins to this history.

    While copyright laws in England and the U.S., as well as kindred
    laws in other jurisdictions, continue to regulate the printing and
    reprinting of books, they have expanded considerably the rights of
    authors (and their assigns) to control uses of technologies that can
    be used to reproduce or perform copyrighted works.  Until relatively
    recently, however, the costs of reprography and performance
    technologies were sufficiently high, and their uses were
    sufficiently public, that there was relatively little danger that
    infringement on a commercially significant scale would arise from
    individual user activities.

    The late twentieth century has witnessed the advent of a number of
    relatively low-cost reprography technologies -- photocopying
    machines, tape recorders, and computers, among them -- that can be
    used by ordinary people to make inexpensive copies of copyrighted
    works that are far less public in character.  These technologies
    have shifted the effective balance of power as among authors,
    publishers and users in favor of users. As a consequence of the
    widespread availability of these reprography technologies and few
    restrictions on their use, ordinary users have come to believe that
    most, if not all, private, noncommercial copying of copyrighted
    works is not only beyond the power of copyright owners to control,
    but beyond their legal rights as well.

    While some authors and publishers might concede that private
    noncommercial copying is largely beyond their power to control, they
    are less willing to concede the point about their legal authority.
    Notwithstanding some notable losses in lawsuits challenging some
    private uses of reprography technologies in the 1970's and 1980's,
    publisher challenges to research and educational use copying have
    met with greater success in the 1990's.  However, the hearts and
    minds of the populace have not been won over to the strong
    protectionist position favored by some publishers.


Regarding Sega v. Accolade, recently discussed here:

    Among the reasons these cases are of interest is the importance they
    place on copyright as a law that must strike a balance among
    competing interests.  Copyright does not just protect the interests
    of copyright owners; it also protects the interests of users. These
    cases reflect a tradition that views copyright as a limited grant to
    authors for the purpose of achieving a larger societal goal, one
    embedded in the U.S. Constitution, of promoting knowledge and
    public access to it.  When new technologies have raised questions
    that are not easily answered by existing law, courts have tended to
    construe the law in light of these larger societal purposes.  These
    larger purposes of copyright law and the notion of copyright as a
    law that strikes balances are given short shrift in the White Paper.
    This is especially evident in the White Paper's discussion of its
    proposed anti-circumvention provision.

On protecting fair-use access to copyrighted materials (directly
contravening suggestions I've made here earlier):

    The White Paper seems to accept as a natural development that in the
    future the public will have access to works -- whether they are
    protected by copyright or not -- on whatever terms and conditions
    copyright owners choose to make them available.  In its view, the
    law of copyright imposes no responsibilities on rightsholders.
    Should rightsholders choose to make works available in a form making
    it impossible to make fair uses of them, for example, the White
    Paper sees no reason to be concerned about this development, for the
    fair use doctrine 

	does not require a copyright owner to allow or to facilitate
	unauthorized access or use of a work. Otherwise, copyright
	owners could not withhold works from publication; movie theatres
	could not charge admission or prevent audio or video recording;
	museums could not require entry fees or prohibit the taking of
	photographs. Indeed, if the provision of access and the ability
	to make fair use of copyrighted works were required of copyright
	owners -- or an affirmative right of the public -- even
	passwords for access to computer databases would be considered

    INFORMATION INFRASTRUCTURE (Sept.  1995) (aka "White Paper"),
    Continuing: " supra note  -- , at 231. No discussion of the White
    Paper's views on fair use and public access to information would be
    complete without mentioning its classic response to concerns that
    its policies will disadvantage further the "information have-nots"
    in society: "Some participants have suggested that the United States
    is being divided into a nation of information 'haves' and 'have
    nots' and that this could be ameliorated by ensuring that the fair
    use defense is broadly generous in the NII context. The Working
    Group rejects the notion that copyright owners should be taxed --
    apart from all others -- to facilitate the legitimate goal of
    'universal access.'" Id. at 84."]

    In view of the fact that the White Paper treats every electronic
    access to or use of a copy of a copyrighted work as a prima facie
    infringement,  and regards the first sale doctrine as inapplicable
    in the electronic environment  and fair use as unavailable if a
    use can be licensed, the power of rightsholders in the electronic
    environment would seem to be truly awesome.  Technological
    protection, along with the freedom from circumvention technologies
    that the White Paper proposal would bring about, is an important
    component of a larger maximalist strategy for shifting power away
    from consumers and toward publishers.

General Samuelson notes:  while she is highly regarded, some of her work
on copyright and IP law, particularly in the arena of electronic and
software law, are controversial.  I've found her writing to be powerful,
persuasive, clear, and painfully well researched.

It's fairly clear to me that copyright law is coming full circle to
secure and protect rights of publishers rather than authors and society.

Some random reflections.

Samuelson suggests strongly that technical means of protection might be
far more favorable than legal or policy means.  However, we're now in a
world which may have to deal with both.  CPRM may be subject to DMCA 17
USC 1201 anti-circumvention protections[1].  This puts here suggestions in a
different light.

Scarcity of media.  It's been suggested [2] that scarcity of media
(paper) more than lack of press or distribution means was the historic
limiting factor in producing published works.  CPRM is clearly a way to
create an artificial scarcity of rewritable media through technological
means in an age in which storage is cheap, cheap, cheap, and
distribution mechanisms ubiquitous, near zero-cost, and fast. 

Policy inversion, crypto v. intellectual property.  There's a curious
conflict of policy objectives WRT copyright and intellectual property.

  - In the crypto arena, that which is private, personal, and intended
    to be secret, is desired by government to be available and
    disseminated at the will of the government. 

  - In the IP arena, that which is available and disseminated, whose
    value is in its availability, is sought to be controlled.  Data
    which I have acquired and paid for the benefit of having is not fully
    available to me, by legal and technical means.

I'm not phrasing that as well as I'd like, but I believe the point is
evident.  Stuff I want to keep private is wrested from me.  Stuff which
is public, that I may have paid to aquire, is locked away from me.

A point on the real risk of CPRM -- what Lawrence Lessig calls the
"principle of bovinity":

    Tiny controls, consistently enforced, are enough to direct very
    large animals....We are large animals.  I think it is as likely that
    the majority of people would resist these small but efficient it is that cows would resist wire fences.  This is
    who we are, and this is why these regulations [and tools] work.  [3]

Storage media controls, sufficiently ubiquitous, would be an extremely
effective form of barbed wire.



[1]  17 USC 1201: 

[2] Lawrence Lessig,  Code and other Laws of Cyberspace , Basic Books, 
    1999, ISBN 0-465-03912-X.  p124.  Russ, you read it yet?

[3] Lessig,  Code , p.57.  Issue regards technical control of the
    Internet, but principles are widely applicable.  

Karsten M. Self <>
 Evangelist, Zelerate, Inc.            
  What part of "Gestalt" don't you understand?      There is no K5 cabal

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