Why We Must Continue to Care About Copyright

Why We Must Continue to Care About Copyright

Tracy Mitrano

Director of IT Policy and Computer Policy and Law Programs

Tracy Mitrano

Director of IT Policy and Computer Policy and Law Programs

Arguments from …Arguments from …

Economy

Society

Politics

Economy

Society

Politics

EconomyEconomy

Properly balanced copyright law is a vital underpinning of a free market economy…

That’s why our forefathers thought it important enough to put in the Constitution.

Properly balanced copyright law is a vital underpinning of a free market economy…

That’s why our forefathers thought it important enough to put in the Constitution.

Article I Section 8Article I Section 8

To promote the Progress of Science and useful Arts, by securing for limited

Times to Authors and Inventors the exclusive Right to their respective

Writings and Discoveries

To promote the Progress of Science and useful Arts, by securing for limited

Times to Authors and Inventors the exclusive Right to their respective

Writings and Discoveries

SocietySociety

The balance between innovation and incentive provides the foundation for a vibrant, dynamic

environment by respecting the giant’s shoulders upon which our culture stands and yet not being weighted down too heavily by those giants as to

inhibit each generation’s natural impulse to (re)create itself.

The balance between innovation and incentive provides the foundation for a vibrant, dynamic

environment by respecting the giant’s shoulders upon which our culture stands and yet not being weighted down too heavily by those giants as to

inhibit each generation’s natural impulse to (re)create itself.

JeffersonJefferson

Each generation needs a new revolution.Each generation needs a new revolution.

PoliticsPolitics

Democracy is only possible in a marketplace of ideas, and ideas are only possible in a society

where innovation and incentive are in balance to foment their articulation.

Democracy is only possible in a marketplace of ideas, and ideas are only possible in a society

where innovation and incentive are in balance to foment their articulation.

Public DomainPublic Domain

Proper balance of innovation and incentive assumes a broadly defined and immediately

accessible public domain.

Proper balance of innovation and incentive assumes a broadly defined and immediately

accessible public domain.

Primer of Anglo-American Copyright History

Primer of Anglo-American Copyright History

Stationer’s Company 1557

Absolute monarchy of Tudor reign and monopoly control De facto “copyright law” and the foundation of “exclusive

rights” – but neither “natural” nor property Publishers as the arm of the crown

Statute of Anne 1709 For authors first, not publishers

Following the political economic trends of modern individualism and capitalism

Fourteen years of protection, renewable for another fourteen

Stationer’s Company 1557

Absolute monarchy of Tudor reign and monopoly control De facto “copyright law” and the foundation of “exclusive

rights” – but neither “natural” nor property Publishers as the arm of the crown

Statute of Anne 1709 For authors first, not publishers

Following the political economic trends of modern individualism and capitalism

Fourteen years of protection, renewable for another fourteen

Constitutional ConventionConstitutional Convention

Washington: access to information required to maintain an informed citizenry as bulwark against tyranny (i.e. public domain)

Jefferson: fear of monopolies caused him to winnow author’s/publishers protection (i.e. no exclusive rights, and very limited years)

Madison: copyright not property, but policy, balancing incentive with learning, progress and innovation.

Washington: access to information required to maintain an informed citizenry as bulwark against tyranny (i.e. public domain)

Jefferson: fear of monopolies caused him to winnow author’s/publishers protection (i.e. no exclusive rights, and very limited years)

Madison: copyright not property, but policy, balancing incentive with learning, progress and innovation.

Copyright Law of 1790Copyright Law of 1790

Exclusive right From Stationers…

Still with us… Fourteen years, renewable once

From Statute of Anne Now for individual 70 years plus life of author

Registration required Policy, not property

Not now, except for damages But nota bene the scope: books, maps…

Specific Not now, general: “original work in a tangible medium”

Exclusive right From Stationers…

Still with us… Fourteen years, renewable once

From Statute of Anne Now for individual 70 years plus life of author

Registration required Policy, not property

Not now, except for damages But nota bene the scope: books, maps…

Specific Not now, general: “original work in a tangible medium”

Legislative HistoryLegislative History

First copyright law: Copyright Act of 1790

Major revisions: 1831 1870 1909 1976

1976 is the current law, and each development of the law represents an expansion of scope and terms.

First copyright law: Copyright Act of 1790

Major revisions: 1831 1870 1909 1976

1976 is the current law, and each development of the law represents an expansion of scope and terms.

Why Is Copyright Law Out of Balance?

Why Is Copyright Law Out of Balance?

Scope Historically content more rigidly defined

Currently: original work fixed in a tangible medium. Registration required

Not now, except for damages Originally copyright law encompassed a smaller class

of material, maps. etc.. Almost ubiquitous Especially in digital form and the functionality of

personal computer and network systems.

Scope Historically content more rigidly defined

Currently: original work fixed in a tangible medium. Registration required

Not now, except for damages Originally copyright law encompassed a smaller class

of material, maps. etc.. Almost ubiquitous Especially in digital form and the functionality of

personal computer and network systems.

Core of 1976 Copyright LawCore of 1976 Copyright Law

Original work fixed in a tangible medium No copying, distributing or derivative works

Moral rights Important Exceptions

Fair Use Character Nature Amount Market Effect

First Sale Doctrine (libraries) Compulsory licenses

Original work fixed in a tangible medium No copying, distributing or derivative works

Moral rights Important Exceptions

Fair Use Character Nature Amount Market Effect

First Sale Doctrine (libraries) Compulsory licenses

Digital Millennium Copyright Act1998

Digital Millennium Copyright Act1998

Amended 1976 Copyright Act by including “digital” material Process

Section 512 Notice and Take Down Conduit theory Safe Harbor for Higher Education

Register with Library of Congress No knowledge Terminate Account of Repeat Offenders

Substance Anti-circumvention provisions

Disallow tampering with encryption systems designed to prevent copying No reverse engineering Research provision very narrow, may still hamper academic research

Universal v. Reimedres Edward Felten, Princeton

Coupled with the Copyright Term Extension Act

Amended 1976 Copyright Act by including “digital” material Process

Section 512 Notice and Take Down Conduit theory Safe Harbor for Higher Education

Register with Library of Congress No knowledge Terminate Account of Repeat Offenders

Substance Anti-circumvention provisions

Disallow tampering with encryption systems designed to prevent copying No reverse engineering Research provision very narrow, may still hamper academic research

Universal v. Reimedres Edward Felten, Princeton

Coupled with the Copyright Term Extension Act

Why Is Copyright Law Out of Balance?

Why Is Copyright Law Out of Balance?

Terms Originally 14 years (renew once), limited definition,

maps, etc. 1909 Act, 14 years plus two renewals, for total of 56. 1976 provided for 50 years plus life individual and 95

years for a company. 1998 Bono Amendment added 20 more years and

suggests that copyright protection be extended in perpetuity.

Terms Originally 14 years (renew once), limited definition,

maps, etc. 1909 Act, 14 years plus two renewals, for total of 56. 1976 provided for 50 years plus life individual and 95

years for a company. 1998 Bono Amendment added 20 more years and

suggests that copyright protection be extended in perpetuity.

The Printing PressThe Printing Press

1436: From monasteries to movable type

Critical component of Protestant Reformation Rise of literacy and individual interpretation of the Bible

And if we believe Weber Capitalism…

Query: now that it is invented, how – and who – is going to control it?

1436: From monasteries to movable type

Critical component of Protestant Reformation Rise of literacy and individual interpretation of the Bible

And if we believe Weber Capitalism…

Query: now that it is invented, how – and who – is going to control it?

The Internet The Internet

Internet placed the expansion of copyright law in a meaningful light for society at large Digitization Personal computers Networking services

Imbalance with social norms, business models, technology and law.

Copyright is the core battle for control of the Internet.

Technological realization of an information economy.

Internet placed the expansion of copyright law in a meaningful light for society at large Digitization Personal computers Networking services

Imbalance with social norms, business models, technology and law.

Copyright is the core battle for control of the Internet.

Technological realization of an information economy.

Intersection with Higher Education

Intersection with Higher Education

Collaboration between higher education and the government realized the Internet

Higher education includes both producers and consumers of copyright, patents and trademarks

Collaboration between higher education and the government realized the Internet

Higher education includes both producers and consumers of copyright, patents and trademarks

What Does Higher Education Have To Do With It?

What Does Higher Education Have To Do With It?

As not-for-profit institutions, and because the intrinsic worth of information and

knowledge lies at the core of our missions, higher education stands in position to play a

leadership role in mediating conflict between the “malefactors on the right and the malefactors on the left” for the benefit

of global society and culture.

As not-for-profit institutions, and because the intrinsic worth of information and

knowledge lies at the core of our missions, higher education stands in position to play a

leadership role in mediating conflict between the “malefactors on the right and the malefactors on the left” for the benefit

of global society and culture.

So How Do We Do That?So How Do We Do That?

Be clear what the law says For example, the distinction between sections 512(a)

and © of the DMCA Assert your policy

For example, to act, or not to act, on DMCA notices that resolve to non-institutional computers I.e. student computers involved in file sharing

In keeping with your institution’s interpretation of our missions, because …

Be clear what the law says For example, the distinction between sections 512(a)

and © of the DMCA Assert your policy

For example, to act, or not to act, on DMCA notices that resolve to non-institutional computers I.e. student computers involved in file sharing

In keeping with your institution’s interpretation of our missions, because …

Strength of Higher Education …Strength of Higher Education …

Lies in its capacious diversity.Lies in its capacious diversity.

Diversity of American Higher Education

Diversity of American Higher Education

Public,

Private,

Large,

Small,

Secular

Religious,

Local and Global Colleges and Universities

Public,

Private,

Large,

Small,

Secular

Religious,

Local and Global Colleges and Universities

Safe Harbors and Legal Compliance

Safe Harbors and Legal Compliance

Without benefit of definitions or case law under 512(a) we subject non-sequential repeat offenders of DMCA notices to Judicial Administration per

rules of University Counsel.

For notices that resolve to institutional computers we comply fully with section 512© of the DMCA by

expeditiously removing the material from our network.

Without benefit of definitions or case law under 512(a) we subject non-sequential repeat offenders of DMCA notices to Judicial Administration per

rules of University Counsel.

For notices that resolve to institutional computers we comply fully with section 512© of the DMCA by

expeditiously removing the material from our network.

As a matter of policyAs a matter of policy

Since 2002 Cornell University has acted on DMCA notices that resolve to student owned computers by: Blocking upon notice; Removing the block upon affirmation from the

student; Referring to Office of Judicial Administration

Discipline has varied over the years, but now emphasizes education over punishment.

Since 2002 Cornell University has acted on DMCA notices that resolve to student owned computers by: Blocking upon notice; Removing the block upon affirmation from the

student; Referring to Office of Judicial Administration

Discipline has varied over the years, but now emphasizes education over punishment.

Education, Education, EducationEducation, Education, Education

Annual notices http://www.cit.cornell.edu/policy/copyright/

University Computer Policy and Law Program http://ucpl.cornell.edu/

Copyright Education Program http://www.cit.cornell.edu/policy/

Annual notices http://www.cit.cornell.edu/policy/copyright/

University Computer Policy and Law Program http://ucpl.cornell.edu/

Copyright Education Program http://www.cit.cornell.edu/policy/

New Students New Students

Message with UserID letter (May)

UserID activation policy tutorial and “light” Copyright Education Program

New student DVD Special section in the

Student Handbook New Students Web Site

Video clip

Message with UserID letter (May)

UserID activation policy tutorial and “light” Copyright Education Program

New student DVD Special section in the

Student Handbook New Students Web Site

Video clip

International Students: Five Message Opportunities

Student and Parent Orientation

Residence Life Orientation

Frequent communications with the Student Association and newspaper.

International Students: Five Message Opportunities

Student and Parent Orientation

Residence Life Orientation

Frequent communications with the Student Association and newspaper.

Legal AlternativesLegal Alternatives

Napster 2.0 Early adopter

Failed mainly due to heavy digital rights management and inoperability with other technologies

Ruckus Advertising model

Significant subscription rate, greater than 8,000 for 14,000 potential users

Napster 2.0 Early adopter

Failed mainly due to heavy digital rights management and inoperability with other technologies

Ruckus Advertising model

Significant subscription rate, greater than 8,000 for 14,000 potential users

Market AlternativeMarket Alternative

Network Usage Based Billing: Drink by the Byte A study in salutary unintended consequences

Designed to address inequities of enterprise network system in the unique state/endowed landscape of the university, but:

Best user based security measure; Reduced both in and outbound wide area network traffic; and yet According to the content industry, we were guilty until proven

otherwise*

*“Cornell says it is okay to ‘illegally download music’ so long as you can pay for the bandwidth!”

Network Usage Based Billing: Drink by the Byte A study in salutary unintended consequences

Designed to address inequities of enterprise network system in the unique state/endowed landscape of the university, but:

Best user based security measure; Reduced both in and outbound wide area network traffic; and yet According to the content industry, we were guilty until proven

otherwise*

*“Cornell says it is okay to ‘illegally download music’ so long as you can pay for the bandwidth!”

Early Audible Magic Presentation

Early Audible Magic Presentation

“… against the culture and traditions of Cornell University.”

“… against the culture and traditions of Cornell University.”

Recent Legislative EffortsRecent Legislative Efforts

Breach of a gentlemen’s agreement among the Joint Commission Members

Misguided provisions about “plans for technological solutions: Technology not fully baked

Will it ever be? Uncertain statistics: 44-15-3%?

Moving target with residential broadband

Cornell’s Government Affairs has lobbied against this provision as antithetical to our missions.

Breach of a gentlemen’s agreement among the Joint Commission Members

Misguided provisions about “plans for technological solutions: Technology not fully baked

Will it ever be? Uncertain statistics: 44-15-3%?

Moving target with residential broadband

Cornell’s Government Affairs has lobbied against this provision as antithetical to our missions.

And so …And so …

Our challenge is to take up the authority and responsibility that comes with leadership to educate American society about copyright,

the economic, social and political importance of balanced laws, and to advocate on our behalf against undue

influence from the extremes is to model citizenship.

Our challenge is to take up the authority and responsibility that comes with leadership to educate American society about copyright,

the economic, social and political importance of balanced laws, and to advocate on our behalf against undue

influence from the extremes is to model citizenship.

Indeed …Indeed …

No matter what an individual institution determines is right for its culture and

traditions, we can agree that it is to the detriment of us all to have powerful lobbyists influencing legislation that

significantly interferes with our autonomy.

No matter what an individual institution determines is right for its culture and

traditions, we can agree that it is to the detriment of us all to have powerful lobbyists influencing legislation that

significantly interferes with our autonomy.

ConclusionConclusion

Higher education has realized the American dream for generations and continues to be a

beacon to all who pursue learning in this world. We cannot allow this “last best

hope of Earth” to be unduly compromised by the extremes of either users or content

owners. So we must persevere beyond this challenge to continue to exercise our missions with freedom and dignity of

purpose.

Higher education has realized the American dream for generations and continues to be a

beacon to all who pursue learning in this world. We cannot allow this “last best

hope of Earth” to be unduly compromised by the extremes of either users or content

owners. So we must persevere beyond this challenge to continue to exercise our missions with freedom and dignity of

purpose.

Jewel in the CrownJewel in the Crown

Higher education is the jewel in the crown of American society…

And might well be the greatest asset American society has to offer in a global economy and

culture.

Higher education is the jewel in the crown of American society…

And might well be the greatest asset American society has to offer in a global economy and

culture.