This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
If you have questions about this paper, please contact the author
directly. If you have questions about the archives, email
rakyat [ at ] eparker.org. For an explanation of the subject line,
send email to
[log in to unmask] with just the four words, "get help info aejmc," in the
body (drop the "").
(Jan 2006)
Thank you.
Elliott Parker
====================================================================
CATCH 1201:
AN ANALYSIS OF DISCOURSE IN THE 2000 AND 2003 DMCA ANTICIRCUMVENTION
HEARINGS
Introduction I.
For almost the entire twentieth century, copyright law was of limited
interest to
the general public; today, copyright debates have punctured "the
bubble of public
consciousness and become important global policy questions."1 While
Napster played a
vital role in bringing these issues to light,2 the legislative
developments of 1998 are more
likely to have a profound, lasting impact on the development and use
of copyrighted
content and technology in the coming century. That is the year when
the Digital
Millennium Copyright Act (DMCA)3 and Sonny Bono Copyright Term Extension Act
(CTEA)4 became law. While the CTEA has certainly been important in
its own right,
culminating in the highly visible US Supreme Court case Eldred v.
Ashcroft5, the DMCA
has been the most important of the 32 amendments to the Copyright Act
of 1976.6 While
the Act contains other important sections, the most important part of
the DMCA is the
"WIPO Copyright and Performances and Phonograms Treaties Implementation Act of
1998," a ban on the circumvention of technological protection
measures of digital
content,7 embodied in Section 1201.8
The proscription on circumvention of technological protection measures (TPM)
that is embodied in Section 1201 consists of three separate bans. The
basic ban prohibits
circumventing a TPM to gain unauthorized access to copyrighted
works.9 The other two
bans are on trafficking in tools that effectuate the circumvention of
a TPM that controls
access to works10 or determines the uses to which a legally acquired
information product
2 Catch 1201
may be put (e.g., copy-control technologies).11 Once one legally
acquires a product, one
can still circumvent a use-control TPM for purposes such as fair
use,12 and there are a
handful of statutory exemptions from one, two, or all three
prohibitions for users such as
"nonprofit libraries, archives, and educational institutions,"13 law
enforcement
personnel,14 and encryption researchers.15
This brief description cannot do justice to this statute, which is horribly
complicated16. Little wonder, then, that hundreds of articles have
already considered the
statute and its resulting case law at varying lengths.17 Yet even
greater confusion seems
certain to emerge from the triennial assessments of the impact of
this bill on the users of
copyrighted works. An assessment of this process is focus of this paper.
For two years after the statute became effective, the ban on
circumvention did not
come into effect; this period ran from October 28, 1998 to October
28, 2000. During that
period and every three years hence:
The Librarian of Congress, upon the recommendation of the Register of
Copyrights, who shall consult with the Assistant Secretary for Communications
and Information of the Department of Commerce and report and comment on his
or her views in making such recommendation, shall make the determination in a
rulemaking proceeding … of whether persons who are users of a copyrighted
work are, or are likely to be in the succeeding 3-year period,
adversely affected by
the prohibition … in their ability to make noninfringing uses under
this title of a
particular class of copyrighted works.18
To facilitate this proceeding, the Copyright Office holds hearings to
determine whether
exemptions to the general ban are appropriate and what those should
be.19 This is a
3 Catch 1201
significant deviation from the previous role of administrative
hearings in the area of
copyright law, which have historically considered only technical
matters,20 leaving
interpretation of issues such as fair use to the courts.21 An
analysis of these hearings
should help to illustrate the ways in which policy actors attempt to
shape the experience
of law outside the traditional venues in which the copyright bargain
has been negotiated
in the past.22
In this paper, we report the preliminary results of a content analysis of this
stakeholder input as well as the solicitations for testimony and the
final rulings. While
this data is rich enough to justify a much larger project, we focus
our initial analysis on
questions of legislative intent and the establishment of the rules of
the game.
The debate conducted during this rulemaking procedure is worth considering for
at least two reasons. First, as a microcosm of the broader copyright
debate, it reveals a
good deal about how the stakeholders view copyright law generally,
Section 1201
specifically, and the value of additional exemptions to its ban on
circumvention and
circumvention technology. On this count, we conclude that the
rhetoric of the various
stakeholders reflects the battle lines of the broader copyright
debate, while drawing those
lines in sharper relief than is reflected in the published
literature. Second, as a specialized
policymaking venue that can only consider certain types of arguments,
the hearings limit
and shape the discursive choices of stakeholders. On this count, we
conclude that this
rhetoric is shaped markedly by the nature of the venue and of its rules.
In Section II, we consider the literature on political agendas, policymaking
institutions and venue shifting, and policy framing as a basis for
examining the instant
case. In Section III, we discuss US copyright law generally and
Section 1201 specifically.
4 Catch 1201
In Section IV, we summon some of the published literature on
copyright and 1201 as a
means of anticipating the arguments we would expect to see in the
written and oral
testimony. In Section V, we describe the hearings process. In Section
VI, we analyze
stakeholder rhetoric, focusing especially on discourse about the
rules of the game.
Finally, in Section VII, we line this rhetoric up against the outcome
of the hearings and
draw conclusions about the impact of this strategic venue shift.
Policy Formation and Change II.
Frank Baumgartner and Bryan Jones have explored the ways in which public
policy agendas have shifted over time in an attempt to understand the
ways in which
power and influence over the process has been exercised. They have
paid particular
attention the role that ideas and their articulations have played in
the periodic rise and fall
of support for policies and practices on the national agenda.23
Among the insights we derived from their work is that the
institutional structure
of the policy process, not unlike the structure of the capitalist
market, is shaped by the
presence of monopoly power. While these "policy monopolies" are unstable, as a
pluralist version of democratic theory would demand, understanding
the ways in which
these monopolies rise and fall in response to other changes in the
socio-technical
system24 is part of the challenge that Baumgartner and Jones help us to meet.
Among the most important insights that we have derived from this work is the
fact that policy entrepreneurs tend to seek out alternative venues
within the policy
environment in which they believe that an alternative policy frame
can be established as
the basis for a swing in the direction of policy alternatives.25
Congressional hearings with
carefully chosen testimony from expert witnesses and stakeholders are
identified as
5 Catch 1201
critical institutional resources that can be mobilized by policy
entrepreneurs in support of
policy agendas.
We believe that the same processes and strategic moves that Baumgartner and
Jones observed with regard to a broad range of problems and
socio-technical systems can
be observed with regard to the so-called "digital dilemma" of
intellectual property.26 We
have reason to expect a shift in the framing of issues in the
emerging policy debate, not
only because of the unusual shift of venue from the Legislature and
the courts to the
Library of Congress, but also because of the greater level of
participation in these debates
by relative newcomers to intellectual property policymaking circles.
It is when
newcomers enter traditionally settled areas of law and policy that
new ideas, arguments
and perspectives are introduced and have the possibility shifting the
frame of reference.27
Agendas A.
A central goal of an agenda setting effort is the establishment of a
rank-ordered
set of priorities or concerns. Setting the policy agenda is the
equivalent of setting the
terms of debate in ways that privilege one side and burden the other.
The identification of
the most important parties, institutions, or values at risk, or the
benefits to be achieved is
the first priority of a policy entrepreneur. The list of stakeholders
that have been
identified as having common or competing interests in the outcome of
contemporary
debates about intellectual property in a digital age28 is far more
extensive than one might
infer from the list of issues and concerns that have been discussed
in Congress and the
mainstream press.
It is important to distinguish between the interests and concerns of
those we might
identify as the "creators of intellectual property" and those whose
well being is tied up in
6 Catch 1201
it distribution and sale. There are also significant differences
among those we might
identify as users and their agents. The interests of the general
public are rather poorly
defined, and until quite recently, these interests were assumed to
have been represented
by the members of the academic community, librarians, or coalitions
of consumer
equipment manufacturers.29
Institutions and Shifts in Venue B.
Policy actors have an incentive to move policy debates to those
arenas in which
they can exercise a competitive advantage that they may have
developed or can expect to
acquire. While members of the copyright industries have traditionally
exercised
considerable power within the traditional domains of copyright
policymaking,30 the
recent involvement of additional stakeholders, including consumers
and their advocates,
has led the industry to seek additional venues where their influence
is also likely to be
substantial.31 Success in the international policy arena, including
the World Intellectual
Property Organization (WIPO) has increased the ability to these
interests to pursue
strategic shifts in venue at the domestic level.32
Although civil liberties groups have had some success in raising
privacy concerns
in legislative hearings in the past,33 they had virtually no
experience in or privileged
access to the kinds of proceedings that would take place under the
auspices of the
Librarian of Congress. We assume that the decision to assign
responsibility for the
assessment of the impact of Section 1201 to the Librarian of
Congress, and the staff of
the Copyright Office, reflected more of a response to the concerns of
the copyright
industries34 than to the concerns of those seeking to preserve their
options under claims of
a fair use exception. In light of judicial willingness to recognize
exceptions to copyright
7 Catch 1201
such as fair use,35 the movement of such issues to an administrative
hearing is easily
characterized as a venue shift that reduces the limitations on the
copyright monopoly.36
Strategic Framing C.
We understand the critical role that the framing of the policy agenda
plays in the
determination of policy outcomes.37 Vital components of this process
include not only
how participants frame the issues, but also how they frame or
characterize other
participants as well.38 This is often observed in efforts to identify
some actors as central
while marginalizing others.39 Framing activities not only seek to
develop a "web of
subsidies"40 that support the achievement of policy goals, but they
are also directed
toward the development of coalitions41 that might contribute to the
momentum required
to bring about the transformation of a formerly stable policy bargain.
Policy scholars who have focused on the ways in which issues are framed in the
context of congressional testimony provide numerous examples of a
given interest
group's attempts to "shape legislator's perceptions in ways that
would lend advantage to
its own interests."42
The analysis of policy frames is especially helpful in understanding
how status
and power are negotiated within new policy venues, such as the
Library of Congress. It is
important to examine policy-related discourse over a period of time,
especially in the
early stages of venue development because this is a time when arguments about
jurisdiction and responsibility are most critical to shaping the
direction of future policy
debates.
Copyright policy in the US III.
Stronger, less coherent, and in search of the perfect venue A.
8 Catch 1201
Amidst widespread fear by copyright holders that peer-to-peer trading will
destroy their industries, the debate over copyright law "has
degenerated into a steadily
intensifying war of words and legal action."43 In addition to the
music industry, copyright
holders from electronic voting machine manufacturers44 to religious
organizations45 have
resorted to cease-and-desist notices and lawsuits in a trend toward
ever-greater copyright
litigiousness. Yet copyright holders have not only used the courts to
fight back against
unapproved use of their materials. They have successfully lobbied
Congress for several
significant revisions of copyright law, complicating Title 17
considerably. The resulting
trend is a "limitless bloating" of copyright law, both in duration
and scope.46 The everincreasing
reach of copyright law includes at least two significant changes that
are fairly
straightforward. First, "in a process that began in earnest with the
Copyright Act of 1976
and culminated in successor legislation like the Berne Convention
Implementation Act,
the Copyright Renewal Act, and the Copyright Term Extension Act,
Congress pared
back, and in some instances entirely discarded, copyright formalities.
In addition to increasing reach and decreasing the coherence of copyright law,
another critical feature of emerging copyright law over the last
several years has been the
increasing number of venues claiming jurisdiction. Venue shopping is
such an important
practice in the development of copyright law today that copyright
holders, unhappy with
the venue they had, effectively lobbied for the creation of a more
favorable one.47 Yet the
clearest instance of venue shopping is the path to the DMCA.
The path to Section 1201 and the final product B.
Shortly after President Clinton's inauguration, Patent Commissioner Bruce
Lehman began working to deliver as much legal control as possible
over digital content
9 Catch 1201
to copyright holders.48 Yet resistance quickly grew in Congress,
thanks largely to the
lobbying effort spearheaded by the Digital Future Coalition.49 During
this time, Lehman
was also trying to build international support for an international
treaty by the US could
leverage stricter copyright law into the rest of the world's law books.50
In the end, even though final language of the WIPO Copyright Treaty51 was much
weaker than Lehman had hoped,52 it contained a new anticircumvention
provision that
was "used as a basis for greatly enhanced copyright owner control."53
The "Clinton Administration initially considered whether the WIPO Copyright
Treaty might even be sent to the Senate for ratification 'clean' of
implementing
legislation."54 Instead, Congress used the Treaty as an excuse to
implement a much more
sweeping ban on circumvention and to accomplish a significant shift in venues.
As noted briefly in the introduction, Section 1201 implements three different
bans. The first ban (or the "basic ban") prohibits circumventing a TPM to gain
unauthorized access to copyrighted works. For example, it is a
violation of this ban to
circumvent the password protection of a database containing
copyrighted materials. The
second ban is on trafficking in tools that would assist one in the
type of behavior
prohibited by the basic ban. We refer to this second ban as the
"access controls ban." As
one example, where the basic ban prohibits circumventing database
password protections,
the access controls ban prohibits the development or circulation of
password-cracking
software.
The third ban (the "additional violations ban") prohibits trafficking
in devices that
circumvent any TPM that "effectively protects a right of a copyright
owner under this
title in a work or a portion thereof."55 This prohibits the
circumvention of a TPM that
10 Catch 1201
protects any copyright holder's right, most notably including the
right to prohibit
gratuitous copying. This is broader than, and almost completely
subsumes, the access
controls ban. If congress had wanted to ban any technology that
circumvented any TPM,
the additional violations language would have been almost adequate.
The difference
between the two trafficking bans comes into play in the statutory
exemptions—and in the
circumventions that are not forbidden. Omitted from the statute is
any ban on the
circumvention of use control technologies, so long as those
technologies are not also
"dual-purpose" in the sense of also controlling access. For instance,
1201 does not ban
the act of circumventing the copy-controls on a legally purchased CD,
which leaves such
behavior in the realm of prior statutory and case law. We refer to
this as the "fair use"
exemption because one can legally circumvent use control technologies
to engage in fair
use. Yet such fair uses are still difficult to achieve for most
users, as the tools to conduct
such a circumvention remain illegal.
In addition to the fair use exemption, the statute affirmatively
recognizes seven
exemptions, excusing classes of users from varying combinations of
the basic ban, the
access trafficking ban, or the additional violations ban on
trafficking in technologies that
circumvent use controlling (but not access controlling) TPMs. This
mass of hyperspecific
exemptions is confusing, erratic, and irrational,56 so we omit this
topic here.
How the copyright debate is framed IV.
Framed generally A.
Neil Netanel provides an excellent overview of the two primary theories of
copyright that are competing for the right to guide national and
international governance.
On one side, several thinkers as well as "United States and [*220]
European Union
11 Catch 1201
officials have aggressively promoted the view of cultural expression
as a commodity of
trade"57 This is a broad, neoliberal vision of the copyright monopoly
"that extend[s] to
every conceivable valued use."58 In contrast, Netanel and others
offer a democratic
copyright paradigm.59 This democratic paradigm has informed the "free culture"
movement,60 which is responsible for most of the public rhetoric in
opposition to the
expansion of copyright law. Before we summarize some of their
arguments, however, we
summarize some of the main arguments of the neoliberal camp.
Neoliberals61 1.
The primary trope deployed by neoliberals is one of property rights. This is
perhaps their most prominent argument across all venues. "The
copyright industries
regularly employ the rhetoric of private property to support their
lobbying efforts and
litigation." 62 Based on this premise, a neoliberal view of copyright
generally views
unpermitted uses of content as theft of property, comparable or even
equal to the theft of
real property. Infringements constitute the "misappropriation and
distribution of
copyrighted property and the destruction of a copyright owner's
rights to that property."63
On this count, the copyright industry has achieved considerable
success in its effort to
frame the debates regarding peer-to-peer networks and access to
digital media as a debate
about "stealing" and "theft".64
In addition to the rhetoric of property rights, neoliberals are quick
to insist on the
growing economic significance of the copyright industries. In passing
the DMCA,
Congress pointed out that industries trading in copyrighted content
constitute a
significant portion of the US economy generally and the leading
sector for US exports
12 Catch 1201
specifically.65 Additionally, this importance is depicted as rising
precipitously with no
end in sight.66
Finally, neoliberals often represent all unintended uses of
copyrighted materials in
highly moralistic, otherizing terms, especially "piracy." Sometimes,
this is used to refer
to activity that is clearly infringing and illegal,67 though even
then it is a questionable
application of a word that originally referred to "[r]obbery,
kidnapping, or other criminal
violence committed at sea [or] aboard a plane or other vehicle."68 Even more
dramatically, it is commonly used to marginalize all activities that
are not explicitly
authorized by copyright owners, even though this implicitly includes several
noninfringing activities.
Free culture movement 2.
The starting point for most in the free culture movement is the
belief that the
primary goal of copyright law is and should be to promote creative
expression for the
betterment of society. From that starting point, their most central
critique of copyright
law's continued expansion is that strong copyright law actually
reduces the production
and/or dissemination of culturally and politically important works.
All creativity builds
on previous creative works,69 and more broadly speaking, it requires
the freedom to
create without fear of punishment.70 The escalation of copyright,
they argue, has gone so
far as to reduce creative output.
While these authors generally acknowledge the importance of some copyright
protection, they tend to advance a vision of copyright that provides
just enough incentive
to create rather than a property-like right of ownership over the
expression of ideas.71
13 Catch 1201
Free culture writers also insist that strict copyright is a threat to
free expression.
They cite a number of anecdotes and bemoan how copyright is being
used for "protecting
authors from criticism. … The law has become a tool for effectively
disabling the ability
of others to criticize a corporation"72 or any other powerful
institution or individual.
Framing the DMCA's anticircumvention provision B.
No TPM is perfect, and some degree of legal protection of TPMs is acknowledged
by many, even some among the free culture movement, as an important
contribution to
the protection afforded by copyright. We briefly review the views of
those who are
roughly characterized as "pro-1201" (those who support the law as it
stands or would
perhaps even strengthen it) and those who are "anti-1201" (those who
would weaken or
perhaps even eliminate it), respectively.
Pro-1201 1.
Extending the property rights trope described above, the pro-1201
side's primary
argument is that copyright owners need TPMs to preserve their
property rights. In light of
arguments on behalf of fair use, Allan Adler, speaking for the
Association of American
Publishers, argued that "the fair use doctrine has never given anyone
a right to break
other laws for the stated purpose of exercising the fair use
privilege. Fair use doesn't
allow you to break into a locked library in order to make 'fair use'
copies of the books in
it, or steal newspapers from a vending machine in order to copy
articles and share them
with a friend."73 If copyright is like a traditional property right,
then the right to prevent
unwelcome intruders is absolute—even if one cannot prevent guests
from being rude.
Another significant argument is that, by protecting TPMs, 1201 preserves the
economic incentive for producing new content and developing new and innovative
14 Catch 1201
delivery mechanisms—as well as the associated economic growth. Thanks
to digital
technology, "widespread private copying in the aggregate could
radically reduce the
incentive to create any given work of authorship."74 Lawsuits against
infringing
individuals are "prohibitively expensive and politically unwise."75
Therefore, the pro-
1201 argument goes, TPMs serve as an important measure "to protect any work
published and distributed via the Web or in a digital medium."76
Because of this
additional protection, and extending the economic importance argument
developed
above, pro-1201 commentators argue that anticircumvention protections
carry additional
economic benefits. "Congress and Commentators who support § 1201 justify its
enactment mainly because of the impact and significance it will have on the
economy—specifically the copyright and e-commerce industries."77
The pro-1201 rhetoric also continues the moralistic, otherizing tone
present in the
broader copyright debate—again, especially revolving around the trope
of piracy. In the
simplest such terms, "these anti-circumvention provisions were meant
to keep pirates
from defeating anti-piracy protections added to copyrighted works,
and to ban devices
intended for such purposes."78 While "pirate" is the epithet of
choice, the others are still
deployed. Luke Antonsen goes so far as to argue that the law must
stop "hackers,"
"crackers," and "bootlegg[ers]," even if this means eliminating any
1st Amendment rights
in computer code.79
One final, more moderate trope is that the supposed fears of the free culture
movement in light of 1201 have not yet been reached, so there is not
yet a need for
reform. These authors hold out the potential that reform may someday
be necessary, but
"pursuing these alternatives may be premature, because technological
protections are not
15 Catch 1201
yet as pervasive or as intrusive as critics have feared. ... [M]any
works are and will
continue to remain available; and many privileged uses do not require
digital, or even
mechanical copying."80 This position generally holds that certain
market conditions may
ensue that necessitate appropriate reforms, but that is not the case now.
Anti-1201 2.
The main rhetorical trope of those who oppose 1201 is that it will reduce the
ability of users to make fair use and other privileged uses of
copyrighted materials. "The
anti-circumvention provisions of the DMCA create legal protections
for the technological
measures that copyright owners use to control content. Users who wish to use
copyrighted works for noninfringing purposes will not be able to
obtain the tools
necessary for their purposes."81
Legal traditions such as fair use and the first sale doctrine have
preserved the
effective ability to make all sorts of unintended and/or
noninfringing uses, the argument
goes, and these legal traditions are destroyed by 1201. It is frames
as part of "the efforts
of the content industries to create a 'leak-proof' sales and delivery
system, ... triple-sealed
by copyright, contract, and digital locks. Then they can control
access, use, and
ultimately the flow of ideas and expression."82 Those who wish to use
works in ways
unintended by the content provider will be able to ask for different
licensing terms, but
considering that some copyright holders are unwilling even to provide
an alternative to
TPM-laden products to provide for basic compatibility,83 this is
unlikely in many cases.
This broad worst-case-scenario argument is that society will move
from a first-sale
paradigm to a "pay-per-use" model in which every valuable use of a
work is paid for by
the user according to her willingness to pay.
16 Catch 1201
In addition to pay-per-use fears, opponents contend Section 1201
poses a threat to
programming and other types of technological exploration, especially
encryption
research.84
Third, opponents contend that the statute may be invoked to deter
competition in
technological fields. Critics regularly cite two cases in which a
technology manufacturer
claims copyright in a TPM itself and then uses 1201 to prevent
aftermarket competition
in products such as garage door openers85 and printer cartridges.86
The fourth and final common criticism is that the exemptions recognized by the
statute itself and the Librarian of Congress are inadequate to
preserve rights such as fair
use. This trope takes many forms, but one particularly common version
is that the
permanent ban on trafficking guts any exemptions to the general ban;
even if somebody
is allowed to access TPM-protected works, it is almost always illegal
for anybody to help
her do so.87 Therefore, "[u]sers who wish to use copyrighted works
for constitutionally
protected purposes will not be able to obtain the tools necessary for
their purposes."88
Hearings explained V.
Beginning in 2000 and every three years thereafter, the Librarian of
Congress is
charged with determining exemptions to the general ban on
circumvention that shall
apply for the following three years. The rulemaking is conducted to
"determine whether
persons who are users of a copyrighted work are, or are likely to be
in the succeeding 3-
year period, adversely affected by the [general ban] in their ability
to make noninfringing
uses ... of a particular class of copyrighted works."89
The statute does not provide much detail, leaving open such important
questions
as the burden of proof, standards of evidence, and nature of the
exemptions. Combined
17 Catch 1201
with the venue's novelty, this very vagueness sets up a near-perfect
storm for a struggle
over the rules of the game. Because this is the point of contention
in this initial analysis,
we save that discussion for Section VII.
Analysis of Stakeholder Frames VI.
Our preliminary analysis of the primary frames used by the categories of
stakeholders we have identified is directed toward answering two
research questions:
What are the primary distinctions between those who support and those 1)
who oppose the granting of exceptions to the 1201 rules?
How do participants frame the legislative intent behind the assignment of 2)
rulemaking authority to the Librarian of Congress?
The raw materials for our analysis come from the publicly available
records of the
2000 and 2003 hearings, from Notice of Inquiry through final
ruling.The Copyright
Office has posted every word of both rulemaking proceedings on its
website,90 greatly
facilitating our study. The 2000 hearings featured 235 written
comments, 129 reply
comments, and 31 individual testimonials.91 The 2003 hearings
featured 51 comments,
338 reply comments, 63 individual testimonials, and 25 written
replies to 9 post-hearing
questions.92 Once one adds in 5 Notices of Inquiry in the Federal
Register, 22 questionand-
answer sessions, twice-daily opening statements for live hearings by
the Register of
Copyrights, and final recommendations by the Register and/or final
rulings from the
Librarian of Congress, the website offers almost a thousand documents
for analysis. To
reduce this to a somewhat more manageable load, we only considered
the 441 of these
documents that are at least 2 pages long—a length we believe is
necessary to begin
developing a cohesive argument. We loaded these documents into QSR
N6, a content
18 Catch 1201
analysis software program. N6 allows users to conduct string searches
across all
documents and to individually code text units by hand.
Coding by witness type A.
To begin our analysis, we hand coded all 441 documents according to
the author's
self-avowed institutional affiliation. For example, if a witness
stated, "I am here
representing Time-Warner," we coded her as belonging to "media."
Table Two shows
how commenters and witnesses were divided across eight categories.
Insert Table One Here
This table makes clear that people with no official affiliation
participated heavily.
This is not true, however, across all types of participation. The
bulk of unaffiliated
individuals did not participate in live hearings, as evidenced in Table Two.
Insert Table Two Here
Literally anybody can submit a written comment or reply comment, and that is
reflected in the fact that a majority of these documents are by
authors claiming no
institutional affiliation. Note, however, the large disparity in
which witness types present
live testimony, which we believe says something about the level of
access enjoyed by
each witness type. To demonstrate this, we take the number of live
testimonials and
divide by the total of comments, reply comments, and testimonials. By
this formula, 52%
of documents representing the views of librarians (12 of 23 total)
are delivered in person,
and comparably favorable ratios are enjoyed by the nonprofit advocacy
groups (48%) and
the media industry (46%). Education (36%) and technology (27%) enjoy
somewhat lower
19 Catch 1201
rates, though in the case of technology submissions, this is due
largely to a relative glut of
written submissions (56), not to a paucity of live testimonials (21).
What is most striking
is the very low rate of live testimonials for unaffiliated
individuals (a mere 4%) and the
100% live testimonial ranking for the Joint Reply Commenter, Attorney
Steve Metalitz.
For the sake of this preliminary analysis, we restricted our search to those
documents discussing legislative intent. To accomplish this task, we
searched for the
following terms, including all derivatives: Legislat (including,
e.g., legislative,
legislature, legislate, legislated, etc.), Congress (congressional),
Histor (history,
historical, historically, etc.), Inten (intend, intended, intention,
intentionally, etc.), and
Mean (meaning, meant). Then we searched for combinations of either
"legislat" or
"congress" within two lines of any of the other three terms and hand
coded for false hits.
This "legislative intent" search retrieved 121 documents (27%), of
which 20 were
question and answer sessions, which we have not included for this
preliminary study.93
Of the remaining 101 documents, witnesses were again far more likely
to exhibit an
institutional affiliation, and institutional affiliation was a
reasonable predictor of whether
a given witness supported or opposed exemptions to the basic ban, as
illustrated in Table
Three.
Insert Table Three Here
As one would expect, media companies were generally opposed to exemptions
(that is, in favor of a total ban on circumvention) while education,
library, and nonprofit
groups were uniformly in support of exemptions. Technology, which includes
stakeholders that stand to profit from copy-control technology (e.g.,
Macrovision Inc.)
20 Catch 1201
and those who can profit from technologies that may violate 1201
(e.g., Static Control
Components), is divided.
Exploring the context of "legislative intent" claims B.
Based on the string search for legislative intent claims, we
hand-coded each of the
101 documents to determine the overall context of these claims.
Jumping to each "hit"
within each document, we examined the broader argument within which
the claim was
found and coded the document accordingly. Based on this analysis, we
found over 60
unique argumentative tropes. We also coded these documents based on
whether they are
in support of an exemption to the general ban on TPM circumvention,
in opposition, or
are mixed (e.g., supporting some exemptions and opposing others) or
neutral (taking no
position). Table 4 summarizes the tropes that appeared in at least
four documents.
Insert Table Four Here
The cleavage between the two sides could hardly be clearer. Only one document
that either supports or opposes features a trope from the other side,
and this document
features just one such trope. The only 3 "mixed" documents were the
three final rulings
by the Register and/or the Librarian, and 5 of the 6 "neutral"
documents were documents
laying the ground rules such as Notices of Inquiry. In such an
oppositional forum, we
expected as much, but the nature of the gap was an unexpected find.
While the antiexemption
witnesses and the hearings' stewards relied heavily on rules discourse—which
side has the burden of proof, the height of that burden, the intent
of the legislation, and
the impacts that adjudicators should weigh—the pro-exemption side
hardly did so at all.
21 Catch 1201
The bulk of pro-exemption discourse surrounding legislative intent centers on
claims that the statute or copyright law as a whole is intended to
preserve fair use (45 of
54 documents), but that without a given exemption, 1201 will erode
fair use. These
appeals often refer specifically to subsections of 1201 such as the
statute's insistence that
"[n]othing in this section shall affect rights, remedies,
limitations, or defenses to
copyright infringement, including fair use."94 Several documents also
refer to other
sections of copyright law such as the unaltered section that defines
fair use.95
One could read many of these arguments as making the implicit claim that
decisions can and should be made according to ordinary cost-benefit
analysis, though this
is a poor fit with the data. Only 1 of 54 pro-exemption speakers
explicitly invokes the
statute's guidelines which suggest that the hearing must weigh 1201's
threats to fair use
against an exemption's threats to content production. Rather, we
believe that this rhetoric
models the discourse of the copyright defendant in a courtroom
setting, where this side of
the debate enjoys presumption and where such affirmative defenses to
copyright have
historically succeeded.
A nontrivial number of witnesses do try to adapt to the new venue
with rulesbased
arguments including: exemptions should be defined based partly or
wholly on the
intended use rather than the properties of the work itself (7), the
burden of proof should
be possible (6), and the pro-exemption side meets its burden of proof
(5). Overall,
however, the pro-exemption side appeals to broader social goods and
legal concepts.
While pro-exemption witnesses appeal to broad social and legal
principles, antiexemption
witnesses are moderate to heavy users of procedural claims. One third (13/38)
invoke the statute's language to insist that fair use claims can be
outweighed by threats to
22 Catch 1201
content production. Over half (22) specifically insist that those who
propose an
exemption have the burden of proof, and almost all of those (21)
frame the burden as
difficult to meet. A great number (30) insist that those who propose
an exemption have
failed to meet their burden of proof. Nearly half (18) rebut specific
pro-exemption
arguments as being beyond the Librarian's authority, often suggesting
that Congress
would be a more appropriate venue. Many declare that a proposed exemption is
illegitimate, either because it is too broad (15) or based in the
traits of the work's users
rather than the actual work (9).
All told, the anti-exemption side made few arguments appealing to
broader social
or legal principles, attempting instead to defeat individual
pro-exemption arguments
through appeals to the new venue's rules and requirements.
Perhaps even more remarkable than this stark division is the palpable
sense that
the language of the final rulings more closely resembled the
anti-exemption side of the
debate. While granting or recommending exemptions, the rulings
express some concern
that fair use will otherwise be eroded and that those who propose
these exemptions have
met their burden of proof. The consistent resemblance, however, ends there.
Only two of the three rulings argue that the statute intends to
preserve fair use.
Only one insists that a proposed class for exemption is sufficiently
narrow (against
charges that it is too broad) or that a given exemption is not a
threat to content
production. Only one ruling mentions the fear that a ban on
circumvention of access
controls will envelop use controls. And none of the rulings attacks a
given interpretation
of 1201 as eroding fair use or the first sale doctrine.
23 Catch 1201
In much closer alignment with anti-exemption rhetoric, all three final rulings
deploy each of the following arguments in rejecting one or more
proposed exemptions:
the exemption threatens the production of content; the burden of
proof is on those who
propose an exemption; that burden is not met; certain arguments for
an exemption are out
of bounds in this venue; and alternative formats eliminate the need
for an exemption.
The clearest alignment between the final rulings and anti-exemption interests
centers on the dispute over what counts as a "class of works" that is
eligible for an
exemption. All three final rulings (as well as a good number of the
"rules" documents
such as Notices of Inquiry) specifically insist that exemptions must
be narrowly tailored
(e.g., "audiovisual works" is too broad a category), must not be
defined based on traits of
their users (e.g., educational institutions), and must not be defined
merely in terms of the
TPMs that are applied (e.g., CSS, which encrypts DVDs). Little wonder
the final
exemptions are for hyper-specific classes of works such as literary
works in eBook
format that have turned off text-to-speech functionality. Witnesses
who ask for generalpurpose
exemptions, which would allow the courts to apply prior case law on
noninfringing uses in a broad range of circumstances, are rebuffed
and referred back to
Congress. Of course, recall that Congress overwhelmingly passed the
DMCA as written
and insisted that this hearing process would ensure the continued
viability of fair use.
On Parting (With Fair Use) VII
Despite the statute's insistence on the continued availability of
defenses such as
fair use, it remains illegal to circumvent the access controls on a
legally purchased DVD,
even for purposes such as playing it on a Linux machine or using 15
seconds of footage
for scholarly commentary.
24 Catch 1201
Even if the Librarian of Congress were to rule that circumventing CSS
to access
DVDs for otherwise noninfringing purposes is legal, this would help
only those who have
the technical skill to make such a circumvention themselves; the
Librarian has no power
to permit the development and circulation of circumvention tools.
This is a deliberate
shift of venue, taking the responsibility for ensuring fair use away
from the courts and
giving it to an obscure, relatively toothless administrative hearing.
For decades, dozens of
federal courts have predictably sided with those who have made
noninfringing uses in the
name of legal principles such as fair use. Now, those legal
principles are generally not
available to defendants who are accused of violating any of 1201's three bans.
Little wonder that hundreds of people wrote and testified that they
supported one
or more exemptions. Those who pleaded for a general exemption were rebuffed
automatically. The guidelines for defining a class of works exclude
the vast majority of
proposed exemptions as being beyond the hearing's reach for one or
more reasons such
as being unacceptably broad. Wider concerns about the impact of fair
use are left without
a venue. Congress has insisted that the hearings are the proper
venue, while the Librarian
insists that these concerns should be taken to Congress. The courts,
traditionally the
venues most sympathetic to these concerns, now serve only to
determine whether a
forbidden exemption has occurred.
For those who support a strong, categorical ban on all circumvention, Section
1201 is not ideal, but it is a marked improvement over the pre-DMCA
era. The mere
application of a TPM to copyrighted content provides a degree of
legal protection above
and beyond traditional copyright. Technologies that are marketed as
being capable of
defeating TPMs are almost categorically forbidden and certainly not
available on the
25 Catch 1201
general market, even if those technologies are, like the VCR, also
capable of substantial
noninfringing uses. While narrow exemptions are a triennially
recurring threat, the venue
for determining them is unfriendly to broad or use-based exemptions
that could threaten
large swathes of media products.
For those who oppose the broad ban on circumvention and circumventionenabling
technologies, however, this state of affairs is beyond frustrating.
They argue that
TPMs are being deployed in ways that erode the legal rights of users,
librarians, scholars,
critics, and other historically protected users. They contend that
the widening use of dualpurpose
access and use controls is effectively creating a ban on
circumventing any TPMs,
even though use controls such as those that prevent copying are not
per se protected.
They insist that the statute endangers fundamental constitutional and
social values such as
freedom of speech and the right to tinker. Wherever they make these arguments,
however, they are dismissed and told to look elsewhere. In the
digital millennium, fair
use is homeless.
Catch 1201
Witness Type
Media firms
Technology
firms
Education
Library
Nonprofit
advocacy
Government
Self
Joint Reply
Commenter
Question &
Answer
Table 1: Number of documents by witness type
Examples/Description
Publishing, recorded music, TV,
radio, webcasters, media industry
associations (e.g., RIAA)
Consumer electronics, computer
hardware, business software, esecurity
products, web filtering
software, copy-control technology
Colleges & universities only
Library associations, official
representatives of individual
libraries, the Internet Archive
Groups that advocate on behalf of
certain sectors of the population
(e.g., Amer. Foundation for the
Blind) or the general public (e.g.,
Electronic Frontier Foundation)
Those who are steering the
proceedings (e.g., Register of
Copyrights), other officials (e.g.,
Idaho State Controller's Office)
Those who disavow or do not
present any official affiliation
Attorney hired by multiple firms to
oppose exemptions
Involved multiple witnesses during
live hearings.
# doc's
53
8496
22
26
33
29
166
11
22
26
% of total
12.0 %
19.0 %
5.0%
5.9%
7.5%
6.6%
38%
2.5%
5%
Catch 1201
Comment Reply Witness
Type
5
18
Media
Tech
9
2
Education
Library
8
1
Nonprofit
Gov't
97
-
Self
Joint Reply
Commenter
Table 3: "Legislative Intent" Documents by Witness Type
Witness
Type
Media
Tech
Education
Library
Nonprofit
Gov't
Self
JRC
Total
Table 2: Type of Participation by Witness Type
Oral
Comment Testimony
21
21
20
38
8
12
5
9
14
-
7
2
7
6
62
-
%
Total
Total Number
Retrieved
47%
33%
25
29
53
84
50%
23%
10
6
22
26
45%
28%
15
8
33
29
5%
67%
8
4
166
6
24% 101 419
Post-Hearing
Comment97
7
7
-
3
4
-
-
5
Of Documents Retrieved, Number
Supporting/Opposing Exemption
Support Oppose Mixed Neutral
21
17
4
12
-
-
10
6
-
-
15
-
-
3
8
-
38 54
27
Rules98 Rulings99
-
-
-
-
-
23
-
-
-
-
-
3
-
-
-
-
-
-
-
-
-
5
-
1
-
-
-
-
-
3
-
-
6 3
Catch 1201
Table 4: Frequency of Arguments by Support/Opposition
Trope
Without an exception, 1201
will shrink fair use101
1201 intends to preserve fair
use
Intent of other copyright law
is to preserve fair use
(Attacking an interpretation
as shrinking fair use)
Effects of 1201 will be to
eliminate first-sale doctrine
Intent was not to eliminate
first-sale
Proposed class of works as
sufficiently narrow.
Exemptions can legitimately
be based on class of users
Urges a use-based exemption
The statute is unclear
Burden of proof should be
possible
Exemption is not a threat to
content production
Ban on circumventing access
controls will envelop
circumvention of use controls
The pro-exemption side
meets its burden of proof
Must weigh decline in
creative output against harms
to noninfringing users
Proposed exemption
threatens creative output
Burden of proof is on those
who propose exemptions
(Frames burden of proof as
high/ difficult to meet)
Pro-exemption arguments fail
burden of proof
Alternative (e.g., analog)
formats remove the need for
an exemption
# Anti-
Exemp
# Pro-
Exemp
42
45
13
8
6
4
3
-
-
-
-
-
-
-
- 7
7
7
-
-
6
5
9
-
-
-
- 4
13 1
-
-
-
-
20
22
21
30
28
# Total100 #
Mixed Neutral
47
47
14
8
6
4
4
2
-
0
-
-
-
-
1
3
2
1
-
-
-
1
- 8
7
10
-
1
-
2
7
6
10
1
-
-
-
1
1
- 3 7
3 3 20
23
30
27
34
-
5
4
1
3
3
2
3
29 Catch 1201
10 5 2 3 -
- 2 - 7 5
- 3 - 21 18
2 3 - 20 15
- 3 - 12 9
5 2
9 8
4 3
4 2
-
-
-
-
101 38
-
-
-
-
6
3
1
1
2
3 54
formats remove the need for
an exemption
1201 will not cause alleged
negative effects on fair use
Cited pro-exemption
arguments are irrelevant in
this venue
A proposed class of works is
too broad
A proposed class is wrongly
based on traits of users, not
of the works themselves
A proposed class of works
cannot be defined by TPMs
Fair use concerns are not
relevant
First sale concerns are not
relevant
Librarian of Congress/
Register of Copyrights
interpret statute correctly
TOTAL
1
Siva Vaidhyanathan, The State of Copyright Activism, 9 FIRST MONDAY
n. 4, ¶ 1 (April
2
2004), at http://firstmonday.org/issues/issue9_4/siva/index.html.
See generally, Tom McCourt & Patrick Burkart, When Creators, Corporations and
Consumers Collide: Napster and the Development of On-line music
distribution, 25
MEDIA, CULTURE AND SOCIETY, 333, 333-350 (2003); see also, Matt Jackson, Using
Technology to Circumvent the Law: The DMCA's Push to Privatize Copyright, 23
HASTINGS COMM. & ENT. L.J. 607, 609 (2001).
3
4
Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat 2860, (1998).
Sonny Bono Copyright Term Extension Act, Pub L. No. 105-298, 112
Stat. 2827 (1998)
(extending the copyright term from life plus fifty years to life plus
seventy years; herein
"CTEA").
5 Eldred v. Ashcroft, 537 U.S. 186 (2003) (ruling that the CTEA is
constitutional,
regardless of court-acknowledged policy objections). This ruling was
a devastating defeat
for Stanford Professor Lawrence Lessig, who explored the impact of
this decision in his
recent book. See LAWRENCE LESSIG, FREE CULTURE 228-248 (2004).
6 See David Nimmer, Puzzles of the Digital Millennium Copyright Act,
46 J. COPYRIGHT
7
SOC'Y US 401, 402 (1999).
David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright
Act, 148 U. PA.
L. REV. 673, 675 (2000). We acknowledge that the phrase "Digital
Rights Management,"
Catch 1201
8
9
10
11
12
13
14
15
17 U.S.C. § 1201.
Id. § 1201(a)(1)(A).
Id. § 1201(a)(2).
Id. § 1201(b).
Id. § 1201(c).
Id. § 1201(d).
Id. § 1201(e).
Id. § 1201(g).
16
17
18
19
30
or DRM, is more commonly used than is TPM. We are reluctant to
embrace the term
DRM, however, since it begs the question of whether copyright holders
are protecting
something to which they have a legal right of monopoly. We therefore
embrace a less
commonly used—but less loaded—term to embrace the same concept.
COMMITTEE ON INTELLECTUAL PROPERTY RIGHTS AND THE EMERGING INFORMATION
INFRASTRUCTURE, NATIONAL RESEARCH COUNCIL, THE DIGITAL DILEMMA:
INTELLECTUAL PROPERTY IN THE INFORMATION AGE 318-321 (2000).
A search in Westlaw's "Journals & Law Reviews" database for
"("digital millennium
copyright act" dmca d.m.c.a.) /p 1201" (retrieving all references to
the act's title in the
same paragraph as the number "1201") retrieves 619 documents as of
March 20, 2005.
17 U.S.C. § 1201(a)(1)(C)
E.g., Exemption to Prohibition on Circumvention of Copyright
Protection Systems for
Access Control Technologies, Notice of Inquiry, 57 Fed. Reg. 63,578
(October 15, 2002)
[hereinafter "2002 NOI"]. This hearing process only determines
exemptions to the basic
ban; the only exemptions to the trafficking bans are permanently
enshrouded in the
statute, as discussed below.
20
21
22
Nimmer, supra note 7, at 697.
Id., at 696.
23
JESSICA LITMAN, DIGITAL COPYRIGHT 57-63 (2001).
See generally, FRANK R. BAUMGARTNER & BRYAN D. JONES, AGENDAS AND
INSTABILITY IN AMERICAN POLITICS (1993).
24 This is a reference to theoretical developments in the analysis of
long-term social
change derived from the insights of Joseph Schumpeter. See PASCHAL PRESTON,
25
26
RESHAPING COMMUNICATIONS 124-132 (2001).
BAUMGARTNER & JONES at 237-243.
NATIONAL RESEARCH COUNCIL, THE DIGITAL DILEMMA (2000).
27 See Frank R. Baumgartner ET AL., Advocacy and Policy Argumentation
(August 31-
September 3, 2000) 15-16, (Conference paper for presentation to
Annual Meeting of the
American Political Science Association, Washington, DC).
Id at 65-75.
LITMAN, DIGITAL COPYRIGHT at 124.
28
29
30
31
Id. at 138.
LITMAN, id. at 144, suggests that the assignment of rulemaking
responsibility to the
"Librarian of Congress in consultation with the Copyright Office and
the Commerce
Department" would preserve both "Judiciary Committee jurisdiction and
the associated
generous campaign contributions…"
Catch 1201
32 See the discussion of "international forum shopping" in David
Bach, The Double
Punch of Law and Technology: Fighting Music Piracy or Remaking Copyright in a
Digital Age? 6 BUS. &POL., 18-22 (Article 3, Issue 2, 2004), available at
http://www.bepress.com/bap/vol6/iss2/art3.
33
34
J. of Social Issues, 2, 283 (2003).
The members of the copyright industries and the gross revenues
reported by their
individual sectors are identified in U.S. Congress, Congressional
Budget Office,
Copyright Issues in Digital Media, at 4 (August 2004), available at
http://www.cba.gov/ftpdocs/57xx/doc5736/08-09Copyright.pdf.
35
36
37
38
39
40
41
42
43
Sharing, 17 HARV. J.L. & TECH. 1, 1 (2003), available at
http://ssrn.com/abstract=468180.
44
45 Id. at 215-216.
46 LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A
CONNECTED WORLD 106 (2001).
47
31
Oscar H. Gandy, Jr., Public Opinion Surveys and the Formation of
Privacy Policy, 59
17 USC § 107. See, e.g., Sony Corp. of America v. Universal City
Studios, Inc., 464
U.S. 417 (1984), Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569
(1994), and Sega
Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
Jackson, supra note 2, at 639.
See generally, Oscar H. Gandy, Jr., The Great Frame Robbery. The
Strategic Use of
Public Opinion in the Formation of Media Policy (Report to the Ford
Foundation, Grant
1025-1178), available at
http://www.asc.upenn.edu/usr.ogandy/Final_Report to Ford.pdf
(2003).
See Zhondang Pan & Gerald M. Kosicki, Framing as a Strategic Action in Public
Deliberation, in FRAMING PUBLIC LIFE, 35, 44 (Stephen D. Reese, Oscar
H. Gandy, Jr., &
August E. Grant, eds., 2003).
A classic example of this strategy at work can be seen in the efforts
of policy elites to
characterize the nuclear freeze movement. See generally, Robert M.
Entman & Andrew
Rojecki, Freezing Out the Public: Elite and Media Framing of the U.S.
Anti-Nuclear
Movement, 10 POL. COMM., 155 (1993).
Id at 44-47.
This process is often discussed in terms of "frame alignment" and
associated aspects of
social movement engagement with the policy process. See generally,
David A. Snow, et
al., Frame Alignment Process, Micromobilization, and Movement
Participation, 51 AM.
SOC. REV., 464 (1986).
Priscilla Murphy & Michael Maynard, Framing the Genetic Testing
Issue: Discourse
and Cultural Clashes Among Policy Communities, 22 SCI. COMM., 133, 134 (2000).
Neil W. Netanel, Impose a Noncommercial Use Levy to Allow Free
Peer-to-Peer File
KEMBREW MCLEOD, FREEDOM OF EXPRESSION®: OVERZEALOUS COPYRIGHT BOZOS
AND OTHER ENEMIES OF CREATIVITY, 237-244 (2004).
David Bach, The Double Punch of Law and Technology: Fighting Music Piracy or
Remaking Copyright in a Digital Age? 6 BUS. & POL., 18-22 (2004), available at
http://www.bepress.com/bap/vol6/iss2/art3.
48 JESSICA LITMAN, DIGITAL COPYRIGHT, 90-91 (2000).
49 Id. at 124-125.
32 Catch 1201
50
51
Id. at 129.
WIPO Copyright Treaty, adopted by the Diplomatic Conference on Dec. 20, 1996,
52
53
54
WIPO Doc. CRNR/DC/94 (Dec. 23, 1996).
Litman, supra note 54, at 129.
Id. at 131.
Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-
55 17 U.S.C. § 1201(b)(1).
Id. at 675.
Circumvention Regulations Need to Be Revised, 14 Berkeley Tech. L.J.
519, 530 (1999).
56
57 Neil Weinstock Netanel, Asserting Copyright's Democratic
Principles in the Global
Arena, 51 VAND. L. REV. 217, 219-220 (1998).
58 NEIL WEINSTOCK NETANEL, COPYRIGHT AND A DEMOCRATIC CIVIL SOCIETY 1 (1998)
59
(UMI dissertation number 99-09538).
Netanel, supra note 58, at 220.
60 Several names have been and continue to be used, including "copyleft" and
"copyfighters," but the "free culture" label achieved a certain
currency after the
publication of the book by LESSIG, supra note 5.
61 This term is ironic at best, considering the extent to which
government has intervened
beyond the "free market" vision of minimalist laws. See, e.g.,
Samuelson, supra note 54,
and Nimmer, supra note 7. Contrast the ever-expanding government regulation of
intellectual property law with the patently Lochner-esque "free
market" rhetoric proffered
Carolyn Andrepont, Digital Millennium Copyright Act: Copyright
Protections for the
Digital Age, 9 DEPAUL-LCA J. ART & ENT. L. 397, 398 (1999).
See, e.g., Jessica Litman, Sharing and Stealing, 27 HASTINGS COMM/ENT
L. J. 1, 23
(2004) (comparing the theft frame with "sharing" or even "learning,"
as the use of
65
downloaded information about population genetics might be framed).
S. Rep. 105-190, at 10 (1998).
66 STEPHEN E. SIWEK, COPYRIGHT INDUSTRIES IN THE U.S. ECONOMY: THE 2002 REPORT
(2002), available at http://www.iipa.com/pdf/2002_SIWEK_FULL.pdf.
BLACK'S LAW DICTIONARY (8TH ed. 2004).
by the "strong IP" camp, Julie E. Cohen, Lochner in Cyberspace: The
New Economic
Orthodoxy of "Rights Management," 97 MICH. L. REV. 462 (1998). This
rhetoric elides
the dependence on government not to protect something that is
naturally property-like,
but to propertize something that is naturally non-rivalrous and
non-excludable. On this
last point, see GILLIAN DOYLE, UNDERSTANDING MEDIA ECONOMICS, 154-160
62 Netanel, supra note 43, at 22
63
64
67
68
69
70
71
See, e.g., Id., at 5.
LESSIG, supra note 46, at 9, 204.
See generally, MCLEOD, supra note 44, & LESSIG, supra note 86.
SIVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS: THE RISE OF INTELLECTUAL
PROPERTY AND HOW IT THREATENS CREATIVITY 5 (2001).
72
73
LESSIG, supra note 46, at 185, 187.
WIPO Copyright Treaties Implementation Act; and Online Copyright Liability
Limitation Act: Hearing on H.R. 2281 and H.R. 2280 Before the
Subcomm. on Courts
Catch 1201
74
75
76
77
78
79
21 J. Marshall J. Computer & Info. L. 567, 567-568.
80
81
Besek 2004 p. 390.
Jackson, 2001, p. 608.
82
83
84
85
86
87
88
89
2003).
Nimmer, supra note 7, at 736-737.
Jackson, supra note 2, at 610.
17 U.S.C. § 1201(a)(1)(C).
90
91
92
93
33
and Intellectual Property of the House Comm. on the Judiciary 105th
Cong. 78-82 (1997)
at 208 (prepared statement of Allan Adler).
Glynn S. Lunney, Jr., The Death of Copyright: Digital Technology,
Private Copying,
and the Digital Millennium Copyright Act, 87 Va. L. Rev. 813, 818
(2001). Lunney also
contends that the Act too heavily favors copyright holders, though
this quote is a lucid
representation of industry fears.
Id. at 819.
Mauricio Espana, The Fallacy that Fair Use and Information Should Be
Provided For
Free: An Analysis of the Responses to the DMCA's Section 1201, 31
FORDHAM URB. L.J.
135, 148 (2003).
Id. at 191.
Elissa A. Santo, The Impact of the Digital Age on Copyright Law,
231-Dec N.J. Law.
29, 31 (2004).
Luke Antonsen, Expanding the DMCA: The Importance of Regulating Computer Code,
SIVA VAIDHYANATHAN, THE ANARCHIST IN THE LIBRARY: HOW THE CLASH BETWEEN
FREEDOM AND CONTROL IS HACKING THE REAL WORLD AND CRASHING THE SYSTEM, 52-
53 (2004).
Id. at 55-56. (Citing a letter from EMI to a customer who complained
that his CD did
not work as promised. "[W]e can assure you that it is only a matter
of months until more
or less every CD released worldwide will include copy protection. To
that end, we will
do everything in our power, whether you like it or not.")
Id. at 55.
Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178
(Fed. Cir.
2004).
Lexmark Intern., Inc. v. Static Control Components, Inc., 253
F.Supp.2d 943 (E.D. Ky.
U.S. Copyright Office, Rulemaking on Exemptions from Prohibition on
Circumvention
of Technological Measures that Control Access to Copyrighted Works
(2003), available
at: http://www.copyright.gov/1201/index.html. (Hereinafter, "2003
Hearings." Includes
link to 2000 hearings.)
U.S. Copyright Office, Rulemaking on Exemptions from Prohibition on
Circumvention
of Technological Measures that Control Access to Copyrighted Works
(2000), available
at: http://www.copyright.gov/1201/anticirc.html. (Hereinafter, "2000
Hearings.")
2003 Hearings, supra note 92.
Much of our analysis is based on the coding of entire documents, e.g.
coding by
witness type, and/or whether certain codes are found within a given
document. (Due to
software limitations, this emphasis greatly simplifies our analysis.)
The question-andanswer
documents, however, feature large amounts of text from multiple questioners and
34 Catch 1201
witnesses. For simplicity's sake, we therefore elide these more
difficult-to-handle
documents from consideration.
94
95
96
17 U.S.C. § 1201(c)(1).
Id. at § 107.
We coded the testimony of Peter Jaszi, speaking on behalf of the
Digital Future
Coalition (DFC), as both "technology" and "nonprofit." The DFC is
itself a nonprofit
advocacy group that attracted educators, librarians, and activists to
its cause (therefore
resembling, in tenor, goals, and structure, groups such as Public
Knowledge), but it was
also associated with consumer electronics manufacturers. Four
additional documents are
coded as both Technology and Media. This is responsible for the
misalignment between
the total among categories (446) and the total number of documents
(441), in this and
other tables involving witness categories.
97
98
2003 only; answers to 9 written questions offered to those who gave
oral testimony.
Documents that set ground rules for the hearings, including Notices
of Inquiry in the
Federal Register, daily opening statements by the Register of
Copyrights, and questions
soliciting post-hearing comments.
99 Final recommendations by the Register of Copyrights (2000 and
2003) and final ruling
by the Librarian of Congress (included as part of Register's
recommendations in 2000;
issued as separate document in 2003).
100 Just three documents had arguments for some exemptions and
against others; these
were the three final recommendations and/or rulings (a jointly issued
document in 2000
featuring the final recommendations of the Register of Copyrights and
the Librarian's
final ruling, and two separately issued documents in 2003), all of
which involved
approving some exemptions and denying others.
101 In an effort to remain true to the argumentation of witnesses,
this category includes a
large number of claims that are not necessarily tied to "fair use"
exclusively in the sense
laid out in 17 U.S.C. § 107. Witnesses often tied pro-exemption
arguments to claims of
fair use but rarely made explicit reference to the statute, its
contents, or the corresponding
case law. "Fair use" is often used in a broader, almost colloquial
sense of (sometimes
merely allegedly) non-infringing uses generally; our coding matches this fact.
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