December 12, 2000

The New Digital World: Hackers, Napster, Free Speech, and Piracy: How it Will Change the Entire Communications World Including Entertainment and Education

Minutes recorded by Linda Catalano, Rapporteur

Martin Garbus, "The New Digital World: Hackers, Napster, Free Speech, and Piracy - How it will Change the Entire Communications World Including Entertainment and Education."

Frank Moretti, co-chair of the Seminar and presiding chair of the meeting welcomed attendees to the Seminar's first joint annual public event, co-hosted with the Center for New Media Teaching and Learning. Next he introduced the featured speaker, Martin Garbus, lead litigator in the DVD copyright case (please see attached).

Garbus began by emphasizing the significance of the DVD case for educators of every stripe. In it, he said, fair use, or the right of individuals to copy protected information for their own noncommercial use, is pitted against copyright protection, or the right of artists/publishers to be paid for their work.

Garbus explained that historically, so far, fair use has been protected against the interests of copyright holders. That is, courts have generally ruled that whatever infringement may obtain from an individual's copying information is of less importance than the value of free speech. What the DVD case has made clear is that new technologies have changed and will continue to change the way people access and use such information and is altering the published/public user dynamic.

In light of these changes, Congress recognized that there was no way to insure protection against copyright infringement. To reinstate such protection in 1998 it passed the Digital Millennium Copyright Act, which makes it illegal for anyone to offer technology that circumvents a technological means of controlling access to work protected under the act (NYT 2/11/00). Passage of this law represents a serious loss to educators, Garbus explained. For example, by prohibiting academics/librarians from using software to search a large collection of archival material - a far more efficient means than doing so by hand - the law has effectively put an end to fair use.

Going more deeply into the specifics of the DVD case, Garbus continued by explaining that the law has created a monopoly in which producers of DVD movies also control how and where their material can be seen and/or used. The security system that the movie industry had created to prevent DVDs from being copied and distributed over the Internet (a technology called Contents Scramble System, or CSS) was disarmed by an underground computer program capable of decrypting DVDs for viewing on an unlicensed player. The software, called DeCSS, as well as links to it, soon appeared all over the internet. The movie industry filed suit against both those who posted the software and those who linked to it, charging that provision of such widespread access to this technology would inevitably lead to rampant piracy of its product, regardless of how it was originally intended to be used. He noted that the judge in the case has so far sided with the movie industry.

Garbus argued that trying to stop something once it's out in the public sphere is a waste of time and that courts engaging in something so futile constitutes a disregard for the law. He added that there are few security systems that can't be broken and that the effect of this on copyright protection requires a new business model because the old one doesn't apply in the context of new media. Garbus concluded by predicting what effects the large- scale introduction of broadband technology and the consequent Napster-ization of movies and books the technology enables may have on academics. The question finally being, what happens ultimately when information becomes that much more accessible?

Frank Moretti initiated discussion by asking whether any support was coming from the education community on the fair use and free speech issues. Garbus responded that academics had testified before the court in defense of both sides. The net result was a loss for academics as the court having ruled in favor of the interests of copyright holders. He went on to say that a similar lawsuit had been brought against VCRs claiming they would totally ruin the movie industry, which, he reminded the audience, they ultimately did not. He used this example to illustrate that there is need for a new economic model based on the question of how much people will pay for a record they can download for free from the internet: does the free distribution of DVDs over the internet increase or decrease appetite for the product?

Garbus summarized Moretti's question as being essentially, what will happen to the internet in light of such limitations to fair use. He noted that it's clear that the best thing that can happen for academics' research is for material to be freely disseminated over the Web. He said that the question this raises is how such freedom can be consistent with the work of writers, etc., so that they're not doing it for nothing. The first response from the audience came from an employee at the Center for New Media Teaching and Learning. Describing himself as a "content pirate of sorts," who searches the internet for images which are then put to various uses, he remarked that although many of the images he finds are housed at the Library of Congress and are therefore in the public domain, he can only get them in digital format from providers like Encyclopedia Britannica, which have placed copyright restrictions on them. Garbus identified the underlying question as being, if you digitize something does it become a different entity? He explained that the law has decided that it does indeed: once something has been digitized, the copyright falls into the hands of the digitizer. Garbus concluded that because digitization enables anyone to make multiple high-quality copies of something, it threatens to wipe out the rights of the original creator. Another participant asked whether copyright laws/free speech laws are appropriate to dealing with issues introduced by new technologies. Garbus replied that he didn't know what other label standards or parameters would apply - that the values at issue in both are the same. He added that fair use will evolve into licensing issues unless the media industries come up with a new business model. He also predicted that fewer things will eventually make it to the public domain as an extension of the copyright protection issued by the courts and by congress; they have so far said they will protect copyright at the expense of fair use.

Kim Kastens, Senior Research Scientist at the Lamont-Doherty Earth Sciences Observatory, next asked Garbus to expand on his comments about linking, especially with regard to creating a context for material that isn't supported by the library infrastructure. She noted that in education (as opposed to academic research) there isn't a tradition of copyrighting items, but rather of copying materials multiple times, and that this has over time created a morass of material that is not well documented or for which the copyright is unclear. She wanted to know whether the library, which is providing access to such material by linking to it, takes some responsibility through providing those links. Garbus explained that there is both intentional and unintentional infringement, and that one can be liable either way.

Kastens followed up with a question about fair use, asking if at trial there were academics testifying as educators who photocopy material all the time? Garbus responded by explaining that if a professor does photocopying for a class him/herself, then it constitutes infringement but that if students do it individually it's not, the value being for students to have inexpensive books against copyright protection. Here too copyright protection won.

Abena Ntoso, Educational Technologist at CCNMTL, returned the discussion to the question of whether advances in new media call for the development of a new business model to deal with them. She cited as an example how Blockbuster (video rental chain) developed such a model in light of new VCR technology; it found a way to capitalize on that new technology. She asked if there has been a push within digital media companies to develop a similar model. Garbus responded that companies are only just beginning to do so now, that up to now they thought they could either build security systems or stop distribution in defense of their products. They finally stopped to consider what they are going to do when they encounter technological means of access that can't be stopped?

Ntoso remarked that whether this can be played out legally is a question for people to think about. Garbus concurred that this constitutes a profound issue; the law cannot protect copyright interests. This came as a big shock to the industry because it had assumed for so long that it could.

Moretti asked if there has been any civil disobedience around these issues - any effort to get things out despite the law? Garbus replied that there is indeed a political/cultural movement that says the price of copyright protection is too high; others counter that such a position shows disrespect for the law. Another participant followed up by asking if there is any precedent for disobeying copyright laws. Garbus cited the civil rights movement as an example, but cautioned that a distinction must be maintained between the laws in question there and copyright laws. The courts treat material as property; infringement thus equals destruction, which is illegal.

Kastens returned to ask why these issues didn't arise when public libraries first emerged - hasn't this all been played out before? Garbus agreed that it had, but in a different way. Publishing companies said there was a social value to the library system, and that it didn't hurt authors' market too much to make books available to people through them. The difference with digital technology is that it enables someone to make two million copies of something without paying.

The final question asked about the extent to which courts rely on the argument that copyright infringement hurts sales and/or that it's false that people will buy music they can't download. Garbus answered there has been testimony in support of both positions. He noted that studies have shown that it's poorer consumers who are buying CD's and middle class consumers who aren't. The same participant followed up by asking why it is so widely accepted that people won't buy. Garbus clarified that this claim is not in fact widely accepted. He cited Naptster's use of the sampling argument, and that its service provides unsigned artists with a medium for distributing their work that they wouldn't otherwise have.

View the video for this session (Real Media)