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Lawrence Lessig and Pamela Samuelson
The Washington Post
July 13, 1998
Copyright © 1998, The Washington Post Co. All Rights Reserved.
Ever since Congress passed the first copyright act in 1790, this law has had a tradition of balance. Our Founding Fathers believed that granting some exclusive rights to authors would encourage them to be creative and to share the fruits of their creativity with others.
But as the U.S. Supreme Court said in its 1984 Sony Betamax decision—which rejected claims of two motion picture companies that tried to outlaw the sale of videotape machines—"the monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved."
That purpose is stated in our Constitution as "promot[ing] the progress of science and the useful arts." By that was meant promoting knowledge and technological innovation. Because of this larger constitutional purpose of copyright, fair uses can be made of copyrighted works, even when copyright owners object.
But now Congress is considering legislation to amend copyright law that would throw this constitutional balance out of kilter. Oddly enough, the treaty that the legislation claims to implement is more balanced than the bill itself. Signed by nearly 160 countries in Geneva in December 1996, the World Intellectual Property Organization treaty recognizes that copyright protection applies in the digital domain. But it also recognizes the need to maintain a balance between the rights of authors and the larger public interest—particularly education, research and access to information.
Administration officials have admitted that the bill they are pushing goes beyond what the treaty requires. But so far they have bowed to Hollywood's wishes for far stronger protection. The unbalanced legislation that information and entertainment industry giants favor would outlaw any way around the cyberlocks that copyright owners use to limit access to or uses of their works. It also would outlaw technologies that can bypass such technical protection systems.
Alternative legislation that 49 members of Congress—led by Rick Boucher of Virginia and Tom Campbell from California's Silicon Valley—have endorsed would make it illegal to work around a technical protection system to engage in copyright infringement. But their bill does not regulate access to technologies that can be used for infringement, partly because the copyright treaty doesn't require this and partly because the law already protects the legitimate interests of copyright owners. If a technology has no substantial use other than to enable copyright infringement, copyright owners can control its sale under the Supreme Court's Sony Betamax decision.
Supporters of the administration's approach compare getting around technical protection systems to breaking into someone's home—an illegal act even if you don't steal anything once you get there. But this is a flawed analogy.
Think back to the copy-protection systems that once were common in mass-market software transactions. Most consumers felt it was above board to circumvent the copy-protect feature of software in order to make a backup copy of it. They felt they were breaking into their own copies of the software, not interfering with the legitimate interests of the software developer. A federal appellate court eventually ruled that it was legal for a company to sell software that would unlock another company's copy-protect feature for this very reason: that it let consumers make backup copies for their own use.
The legislation the Clinton administration and Hollywood already have pushed through the Senate would prevent ordinary consumers from circumventing technical protection systems, even when it is done for a legitimate purpose, such as creating backup copies. It would do so by making it unlawful to develop the unlocking software. This would make Quaid, the developer of the unlocking software, which won the court case, into a felon. Likewise, it would prevent libraries from exercising their rights under the Copyright Act to make preservation copies, by prohibiting the development and sale of technologies necessary to circumvent copyright protection systems.
These are among the interests that should be balanced in the legislation now before Congress. It is possible to craft balanced legislation to implement the 1996 copyright treaty. But the bill as drafted tilts too far away from the public interest and does not deserve to be enacted into law.
Lawrence Lessig is a law professor at Harvard Law School. Pamela Samuelson is a professor of law and information management at Boalt Hall School of Law, University of California at Berkeley.
| Last modified April 11, 1999. | Berkman Center for Internet & Society |