Building a brand for women Copyright law seems unfathomable to the average human being. It's a
vague mishmash of accepted practices, laws, and court precedents. Yet as we
use computers and the Internet more and increasingly make our livings from
these technologies, it's having a direct impact on our lives.
That is one of the challenges of this body of law. But it's also the case
that people have some very simple understandings of what copyright is
about. They can make private uses, they can share things with their
friends, but they shouldn't go into competition with the publisher. That's
more or less what people think copyright is. So the law has to make sense
to the ordinary person.
One of the problems I see is that the intellectual properly lawyers almost
like how complicated and obtuse it is. They like to say, "Everything
is so complicated that you have to consult me and pay $350 an hour every
time you want to get a clear answer." Then the clear answer is often going
to be, "Well, it depends..."
So it's law that really should be more simple because it's got to regulate
our behavior. In some sense, it doesn't make any difference what those
people in Washington do. If the ordinary person still has the same
conception of copyright, then they're not going to do these fancier or more
complicated things that the people in Washington might want them to do, but
there can be some very, very angry exchanges between publishers and groups
of users because they have such different concepts about where the boundary
lines are.
If, in fact, we're going to move in the direction of stronger and stronger
protectionism, which is what some entertainment and other publishing
industries have been pushing for, we're going to have to do massive
reeducation of the population about why stronger protection is really a
good idea. The [White House's National Information Infrastructure]
white paper said that we should have a copyright education campaign.
Children should be taught as early as kindergarten that copyright
protection is really important and that they shouldn't copy things.
Children should "just say yes" to licensing and they should have a unit of
copyright education in every year of school through college.
Now the truth is that most of us, I think, are not willing to undergo this
massive reeducation, and I think you can understand that some people when
they heard this part of the Clinton administration program said, "This
sounds like a propaganda machine, and we don't want our children to be
subjected to that."
But I think in some measure they're right--if we're going to change
everybody's behavior, then it's got to start that early. Now I'm hoping
that we can more or less carry over the balance that we have in current law
to the digital environment.
From your writing I'd say that one big issue for the average person is
fair use. Why is that?
We have kind of a status quo in the print environment. You know that when
you buy a book you should be able to use it, you should be able to share a
copy with your friend and you should be able to make a photocopy of a
couple of pages if you want to especially remember something. The rules are
well understood.
But take that same information, put it into the electronic environment, and
all of the sudden it's really much more difficult to find the right balance
of norms.
If you share something with a friend, a book or a magazine, you're not
sharing it with everybody in the world. But if, for example, you post
something on an [electronic] bulletin board just to share it with
your friends, in fact, you become a kind of alternative publisher.
A lot controversy crops up in relation to temporary copying. A Clinton
administration paper said if you share a copy of an electronic journal with
somebody else, that is copyright infringement, whereas if you share a print
magazine, it's clearly not copyright infringement.
So what's the difference? They argue that the difference is that in order
to share the electronic journal with somebody else, you have to make a copy
of it. Your machine makes a copy in order to forward it to somebody else.
So even if you delete your copy, then you've made a copy that wasn't
authorized and that's a terrible thing, whereas obviously if you share a
copy of the print magazine, you don't have to make a copy in order to do
that.
Now the Clinton administration says all temporary copies in computer memory
are copyright-significant acts. So the copyright owners have the right to
control each and every one of them.
If you take that literally, then telephone companies and online service
providers would be liable for infringing made as works are transmitted
through their equipment and through their telephone lines, and yet that
can't possibly be a sensible rule.
So one of the things that people have been trying to do from the technical
community is talk to policymakers and say, "Listen, you can't make rules
that don't make any sense and you can't control every copy. It's just not
feasible, it's not sensible. We sort of have to find a different way of
thinking about this."
There is tremendous insecurity in the publishing industry right now. It
wants all the rights because it's not really sure what its business models
are; it's not really sure what rights it's going to need. But this "if you
give me everything, then I won't use the things that I don't really need"
is not a comforting thought to me.
So why not just lock everything down?
In fact, that's one of their arguments: "Give us more rights and we'll be
more creative." But actually the economists will tell you that it doesn't
exactly work that way. A balance between the rights of the consuming public
and the rights of subsequent authors to be able to appropriate some things
from copyrighted works is really part of how we keep knowledge going.
Under our constitutional tradition, the purpose of copyright law isn't just
to induce an author to be creative but ultimately to promote knowledge. So
if you lock things up too tightly, then you're going to impede our
long-term objective, which is to try to keep that knowledge system going
year after year after year.
How do you convince new electronic industries that making a profit, a
good profit, is enough?
It's obviously in their interest if everybody pays them every time a copy
is made. But historically, and in terms of the economic understanding of
why we have copyright law, it isn't to allow them to get revenue for every
use and every copy. The economic model says that what you want to do is
provide enough protection in order to create the right incentives so that
people will be willing to invest in the work's creation and in
dissemination. If it works mostly, that's enough.
Even though software is very easy to copy, the software industries are
doing pretty well. So I think other publishers of digital information ought
to recognize that if software industries can thrive in that kind of
climate, so can they. Maybe one of the things that will work is for them to
just relax a little bit and try to develop some business models that will
provide value to their customers but also give them enough revenue so that
they can recoup their investment. That's really where the creative effort
ought to go into: "What is my business model?"
If the entertainment industries, the copyright industries were allowed
to have everything they wanted, what would happen?
Sometimes I wonder whether they know what's really in their long-term best
interest. Take the example of the videotape recording systems: Universal
Studios and Walt Disney sued Sony to try to stop them from selling Betamax
machines. That effort was unsuccessful, but the result of having all these
videotape machines in homes all across America was that the motion picture
industry ended up with an installed base for the videocassettes they
ultimately started selling. It's one of the best things that ever
happened to them, and yet they tried to shut that whole industry down.
New technology upsets the balance periodically, and I think that they were
understandably scared when they saw all these people out there with
videotape machines taping movies. They thought: "If they do that, we won't
be able to make any money at the theater anymore, and that's going to kill
our profits." It turned out that they just developed a different strategy
for how they release movies and then how they release videotapes so that
they didn't undercut their own sales.
It turns out most people nowadays, because it's so cheap to rent a movie,
don't bother to copy the movies. The motion picture industry has learned at
least some lessons from this. Now, when they look at the Internet and think
about digital technology, it scares the bejesus out of them. The Internet
is a gigantic copying machine. They don't want their stuff to be copied.
It's simple.
The market works better, in my view, because people do a little bit of
private, noncommercial sharing of information. There have been studies that
suggest that a lot of the private noncommercial copying isn't really
harmful to the copyright owner's interests. It spreads more information and
actually introduces a lot of people to copyrighted works.
Libraries are especially concerned. That's really one of the places where
fair use has been extraordinarily important. If some of the proposals that
are being put forward this last couple of years, both on national and
international scales, were adopted as regards to the digital environment, I
think it would lead to the outlawing of libraries. I don't think that's a
good thing.
So we have to find some ways to figure out what's the right balance. Yes,
copyright owners need to be protected against unauthorized commercial
exploitations, but there's got to be some room for ordinary people,
scholars, and really for other authors to be able to make use of works.
That's what fair use does for us.
How do we find that balance?
Copyright law is based on a very simple premise, which is that if somebody
creates something and shares it with other people he or she deserves some
sort of reward. In order to create incentives for [people] to be
creative in the first place, it's a good idea to give them some protection
against unauthorized commercial exploitations.
We want people to be creative, we want them to make works available, and we
want works to build on top of other works. If we want that--and especially
if we want our information industries and our entertainment industries to
thrive and be a source of economic strength in the American economy--then
we need copyright protection.
The balance that's traditionally been struck is between public, commercial
exploitation on the one hand and private, noncommercial sharing or private
noncommercial activities on the other. So copyright law regulates public
distributions, public performances, and other kinds of commercial
exploitations--including reproductions of works in multiple copies and
selling them on the marketplace--whereas the law has left in a vacuum over
here all kinds of private, noncommercial activities.
So there is this boundary that has been with us for a long time. When we
sing a copyrighted song in the shower, we're not infringing copyright.
Copyright law only protects against public performances, not private
performances. My argument is that we already have these rules that say you
shouldn't be able to become an alternative publisher, but you should be
able to do some sharing of information. Particularly if you delete your
copy after you share it with a friend, there's still really only that one
copy in circulation. That's in the spirit of what copyright law calls the
"first-sale rule," which is the rule that you can redistribute something
once you've bought your own copy.
The question is, how do you carry something like that over into the digital
environment? A lot of the things people feel are private, noncommercial
activities on the Internet--sharing something with a few friends--feel to
the copyright owners like public activities that are undermining their
markets. That makes them want to be able to control even very temporary
copies that come into our homes. They want to reach out and control more of
that private, noncommercial conduct, and a lot of people are resisting that.
NEXT: Ideas as property
But when you start pushing copyright laws that far, doesn't it work the
other direction, too? Can't I say that my name and my telephone number is
copyrighted and when the telephone company puts it in a database without my
permission that they are in violation of the law? Going that far doesn't
seem to be good for anybody. 
