What has changed

Courts in the U.S. have asserted for years that our copyright law is compatible with the First Amendment guarantee of free speech by citing to principles — fair use and the rule that copyright protects only expression and leaves the underlying ideas free for all to appropriate, reuse and build upon.  Both of these safeguards are still in place, yet I have twice claimed in this space that we need to look again at the relationship between copyright and free expression.  So the question presents itself, do I just not get it, as at least one commenter seems to think, or has something changed to make reliance on fair use and idea/expression inadequate these days?

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.