Geist’s four principles are hard to argue with.  A copyright law that can last in today’s environment must, he says, be balanced, technologically neutral, simple & clear, and flexible.  That last point, flexibility, is the real key, since designing a law that can be adapted to new uses and new technologies, many of which are literally unforeseeable, requires that the focus be on first principles rather than outcomes.  This is different than the tax code, and it may provide the path to combining fairness with simplicity.

The principle of flexibility explains why fair use is an effective provision of US copyright law.  As frustrated as some of us get trying to navigate the deep and dangerous waters of fair use, it has allowed US law to adapt to new situations and technologies without great stresses.  In fact, Geist’s brief comment on fair dealing in Canadian law suggests (implicitly) that it should be more like US fair use; he argues that the catalog of fair dealing exceptions should be made “illustrative rather than exhaustive,” so courts would be free to build on it as technologies change.

In recent posts I have spoken of adapting fair use so that it gives more leeway to academic works than to other, more commercial intellectual properties.  Even though Geist is explicit in his post that “Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary filmmakers, musicians, teachers, researchers , businesses, or consumers,” I do not think there is any contradiction here with asking that academic works be treated differently in the fair use analysis then a recently released movie, for example, might be.  Fair use would be applied in the same way to each, but because fair use appeals to the motivating principles of copyright law, it asks us to examine the circumstances of each type of material and each kind of use and measure them against those principles.  This is precisely how flexibility is accomplished, and I argue that the result of this uniform application of principles will be different outcomes for different types of works.

Geist’s approach to digital locks — DRM systems — is quite similar, asking us to look at first principles that underpin copyright law when deciding how to treat any particular technology.  Specifically, he suggests that forbidding or permitting the circumvention of such digital locks must be tied to the intended use for which the lock is “picked” if copyright balance is to be respected.  An added advantage of this approach is that it is much simpler — another core principle — than the current approach in the US, where categorical rules are enacted and then a series of complex exceptions are articulated every three years.  We will see shortly how that process will play out for the next three years, since the exceptions will be announce in a couple of months, but it is inevitable that the result will be unfair to some stakeholders and probably disappointing to all.  Far better that we heed Geist’s call for an approach based on first principles.  Perhaps Canada, as it considers a comprehensive overhaul of copyright law, can lead the way.

Although I am not convinced that the two principles usually cited were ever adequate, especially as the scope of copyright’s monopoly expanded, what has clearly changed, in recent years, is that Congress adopted the Digital Millennium Copyright Act in 1998.  The DMCA added two provisions to the copyright act that have had a negative impact on free expression.

First were the legal protections provided for technological protection measures, or DRM (digital rights management) systems.  It is ironic that content owners decided to move toward technological locks because they felt that legal protections were inadequate, and then found they needed legal protection for those locks when they proved insecure.  But the combination of digital locks and “anti-circumvention” rules has been devastating for free speech; even use of public domain works can now be locked up, and the law will prevent access.

Lest we forget the power of DRM, here is a note about the Motion Picture Association of America “reminding” a court that it is illegal to circumvent DRM systems even for a use of the material that would be perfectly legal.  So when digital locks are used, one of the safeguards our courts have relied on to preserve free speech — fair use — is apparently useless.  As the EFF attorney mentioned in a blog post linked above says, it is by no means certain that fair use is entirely trumped by DRM, but there is a case that held that, and the content owners certainly believe that fair use is now obsolete.

An extensive study done by Patricia Akester, a researcher with the Centre for Intellectual Property and Information Law at Cambridge University, lends weight to that argument that what she calls “privileged uses” (like fair dealing in the UK and fair use in the US) are adversely impacted by DRM systems.  There is a report of her study here, and the full text (over 200 pages!) is here.  Akester may have done the first empirical study of these adverse effects, and her conclusions are sufficiently gloomy to lead her to suggest a legislative solution.  She proposes that a “DRM Deposit System” be established where content owners are required to deposit either the key to their lock or an unencrypted copy of the work.  Then a user could make an argument or meet a set of requirements for access when their proposed use was clearly within a privilege.  If the content owner declined to deposit with the system, circumvention for access for privilege uses would be allowed.  Some such system, similar to the “reverse notice and takedown” proposal discussed here over a year ago, is clearly needed if fair use is to continue to function as a safeguard of free speech.

The other provision of the DMCA that imperils free expression is the notice and takedown procedure itself, which was created to protect Internet service providers (ISPs) from liability for infringing activity that happened over their networks.  In one sense, this “safe harbor” has been good for fair use, allowing the creation of user generated content sites like Flickr and YouTube where lots of fair use experimentation can take place.  But that take down procedure is being abused, with bogus notices being sent to prevent legitimate and even socially necessary criticism and parody.  ISPs are quick to takedown sites that are named in these takedown notices, and the process for getting them restored subjects the original poster to an increased risk of liability.  It is very costly, after all, to defend free speech even against a bogus claim.  So abusive takedown notices have now become a favored way to suppress criticism and comment that is unpopular with a major company or content owner.  The long tradition of “I Hate BigCo, Inc., and here is why” web site, which courts have often held to be fair use of copyrighted and trademarked content, is now much riskier than it was before.  In fact, the Electronic Frontier Foundation has even created these six steps to safegaurd a gripe or parody site, recognizing that free speech is not longer sufficiently protected by traditional provisions within the copyright law alone.

Digital Rights Management, or electronic protection measures, are technological locks that “physically” prevent uses that are infringing, as well as many uses that would not be infringing if they were possible.  The justification for using DRM is that it is necessary to prevent the widespread infringement that the digital environment enables, and thus to protect the revenues of content creators.  Those revenues, it is argued, provide the incentive that keeps Americans creating more movies, music, books, etc.  This purpose seemed so important in 1998 that the Digital Milleniuum Copyright Act included rather draconian legal protection for DRM systems, making it illegal to circumvent them even when the underlying purpose of the use would itself be legal.  But the juxtaposition of two recent blog posts raises an interesting question about whether DRM really does what is claimed, and whether what is claimed is really its purpose in any case.

First is this report from Canadian copyright professor Michael Geist noting that for the third straight year sales of digital music (a prime type of content “protected” with DRM) have grown faster in Canada than they have in the United States.  This growth comes in spite (?) of the fact that Canada does not have the same legal protections for DRM systems that the US does.  Apparently the incentives for creativity are just as strong, or stronger, in Canada, where circumvention is not punishable, as they are in the US, where we are told that those who circumvent and those who market the technology to circumvent must be stopped lest creativity grind to a halt.  The reality, as Geist points out, is that “copyright is simply not the issue,” and government intervention to drastically strengthen the copyright monopoly has not provided the promised benefit.

So why is DRM really so important to big content companies?  On the Electronic Frontier Foundation’s blog, Richard Esguerra gives us a more convincing answer when he notes that Apple is finally dropping DRM from the music files it sells through its iTunes store.  The timing, he suggests, shows that the big content companies really use DRM to eliminate competition and enforce a captive market; as soon as that purpose becomes moot, the companies drop the DRM.  It is no surprise that DRM is a marketing problem, especially for music, where it often prevents users from moving files from one device to another.  As long as the expected benefits in reduced competition outweighs the loss of sales, DRM is defended as a vital part of the copyright system.  But it is abandoned without a qualm once it no longer serves that anti-competitive purpose and threatens instead to hamper profits.

If DRM systems really are being used primarily to suppress competition and prevent innovation, they are working directly in opposition to the fundamental purpose of copyright law they were sold to us to support.  Read together, these two reports suggest that tinkering with exceptions, as the Library of Congress is charged to do every three years, is not enough; instead, the value of the whole idea of providing legal protection to DRM should be reexamined.

But DRM systems also inhibit lots of legitimate academic uses, and they are protected by law much more strictly than copyrights are by themselves.  A section added to the copyright law by the Digital Millennium Copyright Act makes it illegal to circumvent technological protection measures or to “manufacture, import, offer to the public, provide or otherwise traffic in” any technology that is primarily designed to circumvent such measures.  The reason I say this is stronger protection than copyrights get, and the reason these measures can be such a problem for teaching and research, is that our courts have held that one cannot circumvent DRM even for uses that would be permissible under the copyright act, such as fair uses, or performances permitted in a face-to-face teaching setting.

It is frequently the case, for example, that professors want to show a class a set of film clips that have been compiled together to avoid wasting time, or wish to convert a portion of a DVD to a digital file to be streamed through a course management system, as is permitted by the Teach Act amendment.  These uses are almost certainly legal, but the anti-circumvention rules make it likely that the act of getting the files ready for such uses is not.

To avoid the harshest results of the anti-circumvention rules, Congress instructed the Library of Congress to make a set of exceptions every three years using the so-called “rule making” procedures for federal agencies.  There have been three rounds of such rule-making so far, in 2000, 2003 and 2006.  Only in the last round was there any significant exception for higher education and it was very narrow, allowing only “film and media studies professors” to circumvent DRM in order to create compilations of film clips for use in a live classroom.

Now the Library of Congress has announced the next round of rule-making which will culminate in new exceptions in 2009.  Higher ed. has another chance to chip away at the concrete-like strictures that hamper teaching, research and innovation.  We need to be sure that the exception for film clips is continued, and try hard to see it expanded; many other professors, for example, who teach subjects other than film could still benefit from such an exception without posing any significant risk to rights holders.  Ideally, an exception that allows circumvention in higher education institutions whenever the underlying use was authorized could be crafted.

There is a nice article describing the rule making process and its frustrations here, from Ars Technica.

One of the things we have learned in the previous processes is the importance of compelling stories.  The narrow exception discussed above was crafted largely in response to the limitations on his teaching described by one film professor who testified during the rule-making.  The exception seems crafted to solve his particular dilemma. As another round of exceptions is crafted over the coming year, it will be important for the higher ed. community to offer the Library of Congress convincing narratives of the other ways in which DRM inhibits our work and to lobby hard for broader exceptions that will address the full range of problems created by the anti-circumvention rules.

This story from Inside Higher Ed outlines some of the “next steps” for E-texts, as well as the “remaining obstacles,” which are substantial. The article focuses most of its attention on two initiatives – a highly speculative report that Amazon wants to introduce E-texts for its Kindle e-book reader, and a description of the progress being made by CourseSmart in partnering with higher education. It is worth looking at these two projects, along with some other business models for e-texts, in light of some recently articulated needs and concerns.

A recent study done by a coalition of student groups expresses some doubts about digital textbooks that are worth considering as we look at different possible business models. The report raises three potential problems with digital versions: their alleged failure to reduce costs, limitations on how much of an e-text a student is allowed to print, and the short duration of access provided by some licensing arrangements. These latter two concerns, obviously, support the contention that print textbooks are still serving student needs better than e-texts, especially if the digital versions are nor significantly less expensive. To these concerns we might add one more – students like to be able to highlight and annotate textbooks, and digital versions that do not support this activity will be disfavored.

So how do the different business models fare in addressing these concerns?

One model is simply the distribution of electronic versions of traditional textbooks by traditional publishers. This seems like the least promising of the models, since it likely solves none of the issues raised by the student groups. It is interesting that the representative of traditional publishers quoted in the Inside higher Ed story made no reference at all to cost concerns but stressed the potential for e-texts to shut down the market for used textbooks. Unsurprisingly, the focus here is on preventing competition and protecting income, not serving the needs of the student-consumers.

CourseSmart offers a business model that is very little different from that the traditional publishers might undertake themselves. There is some dispute about the issue of cost, however, with CourseSmart arguing not only that its digital versions of traditional textbooks are significantly cheaper, but that they remain so even when the income that students might usually expect by reselling their print texts is taken into account. It remains the case that that lower payment only purchases temporary access for the students and a restricted ability to print. Nevertheless, CourseSmart has been successful in arranging partnerships with San Diego State University and the state university system in Ohio, so it will be worth watching to see how those experiments develop, particularly in regard to student usage and satisfaction.

Amazon’s Kindle is yet another possibility for distributing e-texts. We know very little about how such texts would be priced or what features they would have, but we do know that the desire of students to be able to print would not be fulfilled. This is an important issue for students, apparently, since the student report on e-texts found that 60% of students surveyed would be willing to pay for a low-cost print copy of a textbook even if a free digital version was available to them.

This latter fact is precisely what Flat World Publishing is counting on with their plan to make free digital textbooks available and also sell print-on-demand copies to those who want a paper version. As I described this model a few weeks ago, Flat World is hoping to show that over the long-term, print on demand can prove a sustainable business model. Since this accords better with the expressed needs of student users than any of the above models, they might just be right.

The last model for distributing digital textbooks, one often overlooked in the debates (although endorsed by the student report mentioned above) but given some attention in this article from the LA Times, is open-access. Frustrated faculty members are increasingly considering creating digital textbooks that they will distribute for free. Supporting such work, with grants of up to $50,000, is another part of the initiative undertaken by the university system in Ohio. Ohio has long been a leader in supporting libraries in higher education, and this support for open access textbook offers a new avenue for leadership. The real “costs” we should be considering when we discuss e-texts ainclude reasonable support for the work of creating such resources, as well as credit for the scholarly product of that work when tenure reviews come around. So much of the expense of textbooks comes from the profit claimed by the “middlemen” who distribute them that real efforts to reduce the cost of education must focus on ways to encourage in-house creation of digital texts (which is little different from how textbooks have always been written) and to distribute them directly to students, as the Internet now makes possible.

James Lardner’s 1987 book about the development of video recording devices and the subsequent copyright consequences, “Fast Forward: Hollywood, the Japanese and the Onslaught of the VCR” (Norton) is another example of an older work from which there is still a lot to learn (my principle embarrassment in discussing the book lies in revealing yet again how often my own reading follows suggestions made by Bill Patry). As I read the book this weekend, I was struck especially by a small remark that, to me, reflected on a mistake the content industry cannot seem to stop making.

During the district court trial over the issue of whether Sony’s Betamax device created liability for its maker due to copyright infringement, the trial judge, Warren Ferguson of the Central District of California, refused to allow the attorneys for Universal and Disney to put on a rebuttal witness who would argue that the court could reasonable force Sony to adopt a technological measure that would permit the non-infringing purposes Sony (with the help of Mr. Rogers, among others) had demonstrated for the VCR while preventing unauthorized recordings of broadcast TV. A “jamming device” was suggested that could, the witness would have asserted, be incorporated into all VCRs at a (relatively) minimal cost and would block recording of programs unless the broadcast chose to permit those recordings. Sounds a lot like the “broadcast flag” argument and the recent flap over Microsoft Vista preventing the download of some NBC TV programs, doesn’t it?

We are still wedded to the idea of technological solutions to the problem of unauthorized uses, and we have now gone so far overboard as to give legal protection to such technological systems, even when the have the intent and /or the effect of prevent perfectly legal uses or of reducing access to works no longer protected by copyright. And we continue to pursue a DRM “arms race” in which each new system is seen as a challenge in the user community and few last more than a couple of weeks before keys and hacks are discovered. The wisdom of Judge Ferguson’s words in refusing to entertain this burdensome and unwise “solution” in Sony are, as yet, unheeded: “As sure as you or I are sitting in this courtroom today, some bright young entrepreneur, unconnected with Sony, is going to come up with a device to unjam the jam. And then we have a device to jam the unjamming of the jam, and we all end up like jelly.” Now that this headlong plunge into chaos has been enshrined in section 1201 of the Copyright Act, Judge Ferguson (whose original decision in the case was ultimately affirmed by the Supreme Court) seems more and more like a prophet to whom we should have listened.

As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.

Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.

All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.

I participated in a trial of the Sony reader last year, and was very pleased with the visual display and the ease of use. But I was disappointed by the range of books available, which is probably the fault of my quirky and eclectic reading habits, and with the awkward way the reader displayed PDF files. Now the Amazon Kindle is getting a lot of attention. Several people have noted the limited selection (and Kindle does not allow reading of PDF files at all), but the debate about e-books has now begun to recognize another issue that reduces the value of e-books, digital rights management. UPDATE — Comment by Kim Knoch (click on comments above) explains that there is a way to read PDF files on Kindle for a small fee.

DRM is used, of course, to protect the value of a proprietary e-book by preventing copying and display in other devices. But the e-book vendors seem to have missed the obvious fact the DRM reduces the value of the e-book for consumers. By definition, DRM limits the options for readers, and in a our world of constant innovation and a plethora of devices that compete for our dollars, options are value.

A blog from the Free Software Foundation dedicated to a campaign against DRM – Defective by Design – makes this point in a post called “Don’t let DRM get between you and a good book.” The defective by design campaign is primarily a consumer movement, focused on electronic freedom and privacy (the threat DRM may sometimes pose to privacy is another important issue). They make the point that, with DRM limited e-books, every time an updated device is released it could require that consumers buy a new version of their favorite books. They also argue that DRM is bad for authors and publishers as well, supporting a form of “digital censorship.”

The same concern about DRM in e-books is also raised on a recent post on the if:book blog from the folks at the Institute for the Future of the Book. “The future of the sustainable book” is part of a much larger discussion, all of which is worth attention. Regarding all sorts of electronic texts, this telling remark clearly places DRM protected proprietary e-books low on the scale of sustainability: “since I work in book publishing, job one is to figure out what it means to create a sustainable book. Lots of models come to mind. Good ones like Wikipedia (device-neutral and always in the latest, free, edition) and bad ones like the Kindle, (which tries to create a market for an ebook reader with designed obsolescence).”

Today a e-mail appeared in my inbox that proclaimed that the era of DRM is over. The author was referring to a recent announcement by Sony BMG that they were finally considering following the lead of much of the rest of the music industry and selling music in an open MP3 format. This is good news, but it is not the end of DRM by any means. Many other issues regarding electronic protection measures remain, and we are still waiting for a truly usable, portable e-book and reader.

Each time Congress proposes to address file-sharing at universities, this is one of the concerns that unites the higher education community against the proposals. Another concern is that the cost of implementing new mandates will be very high, even though university networks account for only a small portion of the overall problem. The recent proposal in Congress (see article here from the Chronicle of Higher Education) is a case in point. The proposal to require that universities develop a plan to address file-sharing is a little bit insulting – most schools already have a plan – and the instructions to offer alternatives to illegal music downloading and to explore technological solutions to the problem are unfunded mandates that could cost hundreds of millions of dollars. And filters that stop music sharing may also inhibit legitimate collaboration; the history of Internet filters suggests that they are often more effective at preventing legal activity than illegal.

The problem posed by illicit file-sharing will not be solved by increased enforcement measures; the genie is already out of the bottle in that regard — P2P swapping has grown beyond the bounds of any attempt to stop it using either law or technology. What are needed to curb the growth of P2P are business models that make legal acquisition of digital music and movies more attractive than the illegal alternatives. Georgia Harper from the University of Texas (see her blog here) has been a vocal advocate of business model development as a solution to some of our current copyright problems, and a conversation between Georgia and some speakers at a recent conference caused me to start wondering what such business models would look like.

One possibility came to my attention (rather belatedly, I suppose) while watching a football game on Saturday. Verizon Wireless was heavily advertising its V-Cast Song ID service, which allows a user who hears music that they like to capture a sample of the audio, identify the song and purchase a copy directly from, and to, their cell phone (see news report here). This, it seems to me, is exactly the kind of value-added service that can move listeners back to legal music downloading services, and it represents a much more positive solution to the problem of file-sharing than any of the legal remedies yet proposed.

A new article by Professors Riechman, Dinwoodie and Samuelson, available here on the Social Science Research Network and forthcoming in the Berkeley Technology Law Journal, examines these two provisions carefully, in the context of their origins in the World Intellectual Property Organization Copyright Treaty and the US Congress, as well as the important interpretation of each in the courts. The professors find in the development of the safe harbor “notice and takedown” mechanism that has successfully protected OSPs a fascinating suggestion for how to fix the clearly dysfunctional anti-circumvention rules.

It is difficult to summarize an article this complex, although the clear writing and argumentation in this piece makes it far easier than many other law journal articles to comprehend. The authors examine the way the concern of the US courts, starting with the famous Sony Betamax case before the Supreme Court in 1984, to protect so-called “dual-use” technologies (those capable of both infringing and non-infringing uses) so that copyright law not be allowed to stifle technological innovation, laid the groundwork for the safe-harbor provision of the DMCA. Building an elaborate analogy between these cases and the situations in which the anti-circumvention rules would come into play, the three professors suggest that, in the US (the article also deals with the European Community), courts could begin fashioning a similar solution to the over-protection of copyrighted works fostered by technological protection measures. In short, they propose a “reverse notice and takedown” procedure which would obligate content producers to “unlock” technological protection when necessary to foster uses privileged by the law as in the public interest. They discuss in detail how such a procedure make be established in both the US and the EC, and what the details of such a solution might look like.

Although long and complicated, with its treatment of both the US and the EC, this article richly rewards the time spent reading it. It provides a clear summary of where we are vis-à-vis the uneasy relationship between copyright and the digital environment, how we got to this point and how we might move forward in a responsible way. Scholarly work seems to get more attention from European courts and legislators than it does in the US, but this is one article that we must hope catches the attention of some well-placed American jurists who could consider implementing its creative solution to a problem that has rapidly become intolerable.